Transgender Europe and ILGA-Europe v. the Czech Republic

Transgender Europe and ILGA-Europe, the petitioners, filed a complaint before the European Committee of Social Rights (hereinafter “the Committee”). The plaintiffs alleged before the Committee that the situation in the Czech Republic was in breach of art.11 either alone or in light of the
non-discrimination clause of the Preamble to the 1961 European Social Charter on the ground of the legal requirement of sterilization imposed on transgender people wishing to change their personal documents so that they reflect the gender identity. The plaintiffs also contended that consent was tarnished under this law because it made legal recognition of one’s gender identity contingent upon sterilization without accounting for the person’s wishes.
Under the challenged law, transgender people wishing to secure legal gender recognition corresponding with their identity must undergo gender reassignment surgery. Transgender people wishing to undergo the surgery must be: diagnosed with gender identity disorder; able to prove their ability to live permanently as the opposite sex; at least eighteen years old; and not subject to custodial or protective medical treatment.
On the other hand, the Government pleaded before the Committee to declare all the allegations unfounded. It also argued that the consent of the Transgender person is taken in writing before conducting the surgery and all the consequences of the surgery are explained to the concerned person in detail. Further, the option to withdraw consent at any point in time is also provided to the person, thereby making the whole process consensual. The Government also contended that the issue does not fall under the ambit of right to health enshrined under Article 11 of the Charter since the subject belongs to the area of personal status.

The Committee held that the gender reassignment surgery requirement for transgender seeking recognition of their gender identity violated physical integrity and impeded free consent such that it violated the right to the protection of health guaranteed by Article 11.
The Committee found that the law raised grave concerns relating to a person’s health and ability to give consent due to tensions between the desire to have state recognition of one’s gender identity and having to undergo a serious and potentially unwanted procedure. The Committee recognized that the law, in certain instances, essentially forced transgender people to undergo medical sterilization which was a complex and dangerous surgery. The Committee stated that such an obligation was not consistent with Article 11.
The Committee highlighted that any medical treatment without free informed consent ran counter to Article 11’s Right to Protection of Health. Of particular importance to the Committee was the European Court of Human Rights’ decision in a factually analogous case, A.P., Garçon and Nicot v. France, in which the ECHR found the sterilization contingency of recognizing the sexual identity of transgender people on their birth certificate violated the right to respect for private life guaranteed under Article 8.
The Committee declined to consider the Complaint in light of the Preamble to the 1961 Charter, despite the fact that there may have been plausible discrimination claims alleged.

SEPARATE CONCURRING OPINION:
Justice Karin Lukas though concurred with the majority opinion concerning violation of Article 11(1) of the 1961 Charter but partly deferred with the committee’s reasons to not consider the issue of discrimination in the light of the Preamble of the Charter. He relied upon Resolution 2048 (2015) which calls for action against discrimination of transgender persons and opined that the requirement of sterilization for the purposes of legal gender recognition was in grave violation of Article 11 (1) read in conjunction with the Preamble of the 1961 Charter which prohibits discrimination. Therefore, he concluded that the sterilization requirement was discriminatory on the basis of gender identity as well.

“…[S]tate recognition of a person’s gender identity is itself a right recognized by international human rights law, including the ECHR, and is important for guaranteeing the full enjoyment of all human rights.” (Para 78)

“The title of [Article 11] – ‘the right to protection of health’ – makes clear that States’ obligations under that provision are not solely limited to ensuring enjoyment of the right to benefit from any positive, proactive state measures enabling enjoyment of the highest possible standard of health attainable…Rather, the notion of the protection of health incorporates an obligation that the state refrain from interfering directly or indirectly with the enjoyment of the right to health.” (Para 79)

“Guaranteeing free consent is fundamental to the enjoyment of the right to health, and is integral to autonomy and human dignity and the obligation to protect the right to health.” (Para 82)
“Respect for physical and psychological integrity is also inextricably part of the right to the protection of health guaranteed by art.11 of the 1961 Charter.” (Para 74)
“The Committee considers that surgical gender reassignment surgery as required in the Czech Republic for a change of gender identity is not necessary for the protection of health. Obliging an individual to undergo such serious surgery which could in fact be harmful to health cannot be considered as being consistent with the obligation that the state refrain from interfering with the enjoyment of the right to health and in such cases states must eliminate the interference. Any kind of medical treatment which is not necessary can be considered as contrary to art.11, if obtaining access to another right is contingent upon undergoing it.” (Para 80)
“As the complainant organisations rightly point out, the sterilisation requirement is discriminatory on the ground of gender identity. Transgender persons are discriminated when compared to cisgender persons, whose gender identity is recognised at birth without any seriously infringing medical interventions being imposed, such as sterilisation.” (OI-6)