Individual Application

The Facts

The applicant, who is a transsexual person, requested to amend her sex in the civil register from female to male.  After the two-year follow up by the Department of Mental Health and Disorders, it was reported that the applicant adopted a male sexual identity and that the sex change was appropriate.

The applicant, relying on this report, brought an action before the Civil Court seeking authorization to undergo a gender reassignment surgery. The court dismissed the case on the ground that according to the medical board report the applicant was not permanently sterilized and therefore the conditions for the sex change were not fulfilled. Upon appeal, the court’s decision was upheld. The applicant subsequently lodged an individual application with the Constitutional Court.

In the meantime, upon referral by another Civil Court, the Constitutional Court annulled the law requiring sterilization on which the denial of the applicant’s request was based.

The applicant’s subsequent application to the Civil Court of General Jurisdiction was accepted and the sex change was allowed.

The Applicant’s Allegations

The applicant claimed that her right to protect and improve her corporeal and spiritual existence was violated on because the request for gender reassignment authorization was dismissed.

The Constitutional Court’s Assessment

Article 17 of the Constitution protects everyone’s right to protect and improve corporeal and spiritual existence.

It was stated in the medical report that despite her female reproductive organ the applicant adopted a male sexual identity and that the sex change was appropriate.

In the present case, the requirement of sterilization before the gender reassignment surgery forced the applicant to abandon her ability to procreate and therefore constituted an interference with her corporeal integrity. The dismissal of the applicant’s request by the Civil Court also interfered with her right to gender identity and personal development.

It was also underlined in the medical report that after the gender reassignment surgery, the applicant would have already been deprived of her reproductive ability in both sexes. Despite that, the first instance court did not grant authorization for the applicant to undergo a gender reassignment surgery on the ground that she was not sterilized. There is no doubt that a transsexual person having ability to procreate will permanently loose this ability if she/he undergoes a gender reassignment surgery.

Regard also being had to the fact that the Constitutional Court has annulled the legal provision pertaining to the case, it has been concluded that the interference with the applicant’s right to protect and improve her corporeal and spiritual existence was not necessary in a democratic society.

Consequently, the Constitutional Court has found a violation of the applicant’s right to protect and improve her corporeal and spiritual existence safeguarded in Article 17 of the Constitution.