WHEN DOES ARTICLE 8 OF THE ECHR
ALBA & HRLA
WHEN DOES ARTICLE 8 OF THE ECHR
MAKE A DIFFERENCE?
GENDER IDENTITY
Sarah Hannett QC
Matrix
24 May 2022
sarahhannett@matrixlaw.co.uk
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OVERVIEW (1)
•
E
n
g
a
g
e
m
e
n
t
:
–
Gender identity is “
one of the most intimate private life matters of a person
”
and falls within “
the personal sphere protected by Art. 8
”:
Van K
ück v.
Germany
(2003) 37 EHRR 51 [51], [69].
–
Gender identity is “
one of the most basic essentials of self-determination
”:
YY v. Turkey
(App. No. 14793/09) at [102].
•
P
o
s
i
t
i
v
e
o
b
l
i
g
a
t
i
o
n
s
:
H
ä
m
ä
l
ä
i
n
e
n
v
.
F
i
n
l
a
n
d
[
2
0
1
4
]
3
7
B
H
R
C
5
5
(
G
C
)
–
“
regard must be had to the fair balance that has to be struck between the
competing interests of the individual and the community as a whole
” [65].
–
notion of “
respect
” is not “
clear cut especially as far as positive obligations
are concerned
” and will “
vary considerably from case to case
” [66].
–
Relevant factors: (i) factors that concern the individual, (iii) factors that
concern the state and its systems; and (iii) the position in other member
states [66].
OVERVIEW (2)
•
M
a
r
g
i
n
o
f
a
p
p
r
e
c
i
a
t
i
o
n
:
H
ä
m
ä
l
ä
i
n
e
n
–
States enjoy a “
certain
” MoA when implementing positive obligations
under Article 8
–
Restricted margin where a particularly important facet of an individual's
existence or identity is at stake.
–
Wider margin where no consensus within member states, or where the
case raises “
sensitive moral or ethical issues
”.
–
Wider margin if the state is required to strike a balance between
competing public and private interests or ECHR rights
•
C
o
n
s
e
n
s
u
s
•
R
e
c
o
g
n
i
t
i
o
n
/
i
m
p
l
e
m
e
n
t
a
t
i
o
n
:
–
Recognition of legal status (no/minimal margin)
–
Implementation of that legal status (wider margin)
ARTICLE 8 MAKING A DIFFERENCE
•
L
e
g
a
l
r
e
c
o
g
n
i
t
i
o
n
/
m
a
r
r
i
a
g
e
:
G
o
o
d
w
i
n
v
.
U
n
i
t
e
d
K
i
n
g
d
o
m
(
2
0
0
2
)
3
5
E
H
R
R
1
8
–
Positive obligation to introduce a scheme under which a trans person could
obtain a new birth certificate and marry in the acquired gender
–
Wide margin of appreciation as to how scheme
implemented
–
Consensus/incrementalism:
Rees v. UK
(1986) 9 EHRR 56,
Cossey v. UK
(1990) 13 EHRR 622,
Sheffield & Horsham v. UK
(1998) 27 EHRR 163
•
L
e
g
a
l
r
e
c
o
g
n
i
t
i
o
n
c
a
n
n
o
t
b
e
c
o
n
d
i
t
i
o
n
a
l
o
n
s
u
r
g
e
r
y
a
n
d
m
u
s
t
b
e
r
a
p
i
d
,
t
r
a
n
s
p
a
r
e
n
t
a
n
d
a
c
c
e
s
s
i
b
l
e
:
–
AP, Garçon and Nicot v. France
(App Nos. 79885/12, 52471/13 and
52596/13) (6.4.17) (recently reaffirmed in X & Y v. Romania (App Nos
2145/16 and 20607/16) (19.1.21) [Query also Article 3]
–
SV v. Italy
(App No. 55216/08)
(11.10.18)
•
C
o
n
t
a
c
t
w
i
t
h
c
h
i
l
d
r
e
n
n
o
t
t
o
b
e
d
e
p
r
i
v
e
d
o
n
g
r
o
u
n
d
o
f
t
r
a
n
s
s
t
a
t
u
s
o
n
l
y
:
–
AM v. Russia
(App No. 47220/19) (6.7.21)
–
Re M (Children) [2018] 2 FLR 800 (CA) (Article 14 taken with Article 8)
UNSUCCESSFUL ARTICLE 8 ARGUMENTS
•
C
o
n
d
i
t
i
o
n
s
o
n
s
t
a
t
u
s
r
e
c
o
g
n
i
t
i
o
n
:
–
Requirement for a diagnosis of gender dysphoria does not breach Article 8:
AP, Garçon and Nicot v. France
[
Query
self-ID]
•
S
a
m
e
s
e
x
m
a
r
r
i
a
g
e
i
n
a
c
q
u
i
r
e
d
g
e
n
d
e
r
:
–
Hämäläinen v. Finland
(2014) 47 EHRR 55 (GC)
•
T
y
p
e
o
f
p
a
r
e
n
t
a
l
s
t
a
t
u
s
:
–
X, Y and Z v. UK
(1997) 24 EHRR 143 (GC)
–
R (JK) v. Registrar General [2016] 1 All ER 354
–
R (McConnell) v. Registrar General
[2021] 1 WLR 684 (CA)
–
OH & GH v. Germany
(25.6.19);
AH and Others v. Germany
(29.1.20)
•
N
o
n
-
b
i
n
a
r
y
s
t
a
t
u
s
:
–
Non-binary identity is an aspect of private life for the purposes of Article 8
–
No positive obligation under Article 8 to provide a passport with an “X” sex
marker:
R (Elan Cane) v. SS
HD [2022] 2 WLR 133 (SC)
–
Recognition case—but no consensus/no ECtHR case law in support
SARAH HANNETT QC
sarahhannett@matrixlaw.co.uk
Griffin Building, Gray’s Inn
London WC1R 5LN
DX400 Chancery Lane, London
Engagement with gender identity as a private life matter protected under Article 8 of the ECHR, exploring positive obligations, relevant factors, margin of appreciation, legal recognition and marriage implications, consensus, and unsuccessful Article 8 arguments.
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Presentation Transcript
ALBA & HRLA WHEN DOES ARTICLE 8 OF THE ECHR MAKE A DIFFERENCE? GENDER IDENTITY Sarah Hannett QC Matrix 24 May 2022 sarahhannett@matrixlaw.co.uk matrix@matrixlaw.co.uk +44 (0)20 7404 3447
OVERVIEW (1) Engagement: Gender identity is one of the most intimate private life matters of a person and falls within the personal sphere protected by Art. 8 : Van K ck v. Germany (2003) 37 EHRR 51 [51], [69]. Gender identity is one of the most basic essentials of self-determination : YY v. Turkey (App. No. 14793/09) at [102]. Positive obligations: H m l inen v. Finland [2014] 37 BHRC 55 (GC) regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole [65]. notion of respect is not clear cut especially as far as positive obligations are concerned and will vary considerably from case to case [66]. Relevant factors: (i) factors that concern the individual, (iii) factors that concern the state and its systems; and (iii) the position in other member states [66]. matrix@matrixlaw.co.uk +44 (0)20 7404 3447
OVERVIEW (2) Margin of appreciation: H m l inen States enjoy a certain MoA when implementing positive obligations under Article 8 Restricted margin where a particularly important facet of an individual's existence or identity is at stake. Wider margin where no consensus within member states, or where the case raises sensitive moral or ethical issues . Wider margin if the state is required to strike a balance between competing public and private interests or ECHR rights Consensus Recognition/implementation: Recognition of legal status (no/minimal margin) Implementation of that legal status (wider margin) matrix@matrixlaw.co.uk +44 (0)20 7404 3447
ARTICLE 8 MAKING A DIFFERENCE Legal recognition/marriage: Goodwin v. United Kingdom (2002) 35 EHRR 18 Positive obligation to introduce a scheme under which a trans person could obtain a new birth certificate and marry in the acquired gender Wide margin of appreciation as to how scheme implemented Consensus/incrementalism: Rees v. UK (1986) 9 EHRR 56, Cossey v. UK (1990) 13 EHRR 622, Sheffield & Horsham v. UK (1998) 27 EHRR 163 Legal recognition cannot be conditional on surgery and must be rapid, transparent and accessible: AP, Gar on and Nicot v. France (App Nos. 79885/12, 52471/13 and 52596/13) (6.4.17) (recently reaffirmed in X & Y v. Romania (App Nos 2145/16 and 20607/16) (19.1.21) [Query also Article 3] SV v. Italy (App No. 55216/08) (11.10.18) Contact with children not to be deprived on ground of trans status only: AM v. Russia (App No. 47220/19) (6.7.21) Re M (Children) [2018] 2 FLR 800 (CA) (Article 14 taken with Article 8) matrix@matrixlaw.co.uk +44 (0)20 7404 3447
UNSUCCESSFUL ARTICLE 8 ARGUMENTS Conditions on status recognition: Requirement for a diagnosis of gender dysphoria does not breach Article 8: AP, Gar on and Nicot v. France [Query self-ID] Same sex marriage in acquired gender: H m l inen v. Finland (2014) 47 EHRR 55 (GC) Type of parental status: X, Y and Z v. UK (1997) 24 EHRR 143 (GC) R (JK) v. Registrar General [2016] 1 All ER 354 R (McConnell) v. Registrar General [2021] 1 WLR 684 (CA) OH & GH v. Germany (25.6.19); AH and Others v. Germany (29.1.20) Non-binary status: Non-binary identity is an aspect of private life for the purposes of Article 8 No positive obligation under Article 8 to provide a passport with an X sex marker: R (Elan Cane) v. SSHD [2022] 2 WLR 133 (SC) Recognition case but no consensus/no ECtHR case law in support matrix@matrixlaw.co.uk +44 (0)20 7404 3447
SARAH HANNETT QC sarahhannett@matrixlaw.co.uk Griffin Building, Gray s Inn London WC1R 5LN DX400 Chancery Lane, London matrix@matrixlaw.co.uk +44 (0)20 7404 3447
