18 February 1994
COMMUNICATION FROM THE COMMITTEE OF MINISTERS
Supplementary Reply to Recommendation 1117 (1989)
on the condition of transsexuals
(adopted by the Committee of Ministers on 14 January 1994
at the 508th meeting of the Ministers' Deputies)
The Committee of Ministers, having (twice) consulted the European Committee on Legal Co-operation (CDCJ) and the Steering Committee for Human Rights (CDDH) and having thoroughly considered Recommendation 1117 (1989), gives the following supplementary reply to the Assembly:
1. The Committee of Ministers shares the Assembly's view that transsexualism raises complex questions requiring solutions compatible with respect for fundamental rights. It declares its awareness of the serious problems faced by transsexuals, who are often victims of discrimination.
It notes, however, that uncertainty concerning the underlying nature of transsexualism has unfortunately not entirely disappeared, although attitudes have changed and science has progressed. It observes with satisfaction in this connection that the recent case law of the European Commission and Court of Human Rights has prompted encouraging developments in the judicial practice of certain member states regarding legal recognition of the new sexual identity of transsexuals.
It also stresses that the legal situations resulting from transsexualism, particularly as regards marriage and filiation, are proving very complex and necessitate detailed, comprehensive study (including legal recognition of their new sexual identity).
2. The Committee of Ministers notes the fact that decisions concerning the legal status of transsexuals are often still left to administrative or judicial authorities in the member states, although some states have already enacted specific legislation to enable transsexuals to undergo sex reassignment surgery and to have their new sexual identity recognised.
In this connection, the Committee of Ministers draws from the case law of the European Court the conclusion that the Court considers state practice and national case law allowing, inter alia, for changes in registers of births after sexual conversion surgery to be an essential element for judging whether or not the convention has been violated. The Committee is also aware of the fact that the Court is conscious of the problems transsexuals face and considers it important to keep the need for appropriate legal measures under review.
The Committee of Ministers, while noting, like the European Court of Human Rights in the case of B. versus France, that there is no broad consensus on this matter among Council of Europe member states, considers that there is a trend towards recognition of post-operative transsexuals which manifests itself in, for example, the authorisation of changes on birth certificates.
3. The Committee of Ministers is therefore of the opinion that:
i. for a transsexual the transformation he or she seeks to achieve with the assistance of medical science is only completed when his or her newly acquired sexual identity is recognised by law;
ii. this does no more than give legal effect to a fait accompli based on medical judgment and action which is irreversible;
iii. with a view to providing legal certainty both for the individual and society, and to giving the best possible guidelines to the judiciary and administrative authorities, minimum requirements for sex reassignment surgery and the legal recognition of the new sexual identity would be clearly preferable to approaches of an ad hoc nature.
4. The Committee of Ministers recalls that all member states should take account of the case law of the European Court with regard to the legal recognition of transsexuals, the emphasis the Court lays on the seriousness of the problems affecting transsexuals, and the importance of keeping under review the need for appropriate legal measures in this area.
5. The Committee of Ministers considers, bearing in mind also the results of the 23rd Colloquy on European Law, that the legal situation of transsexuals is unsatisfactory and that information is urgently needed in this area. It therefore notes with satisfaction that the European Committee on Legal Co-operation (CDCJ) has amended the terms of reference of the Committee of Experts on Family Law (CJ-FA) to allow it to study the whole question of transsexuals in detail. The CJ-FA has thus been given the following terms of reference: "Study of questions concerning transsexuals in order to assist member states in dealing with legal problems concerning transsexuals and the preparation of a report containing criteria and possible means of solving these problems." In the light of this report, the CDCJ will make any appropriate proposals for the possible preparation of an international instrument on this question.