USA : Trump says he wants strong testing to keep transgender athletes out of women’s sports at 2028 Olympics
More: https://edition.cnn.com/2025/08/05/sport/trump-task-force-la-olympics-spt
ECtHR: Bednarek v Poland – judg. 10 July 2025 – lack of explicit notion of hate motive in legislation, prosecution, conviction and in determination of punishment – violation
Art 3 (+ Art 14) • Positive obligations • Discrimination on the basis of sexual orientation • Insufficient State response to battery with homophobic overtones committed against the applicants • Treatment to which applicants were subjected reached the threshold of severity to fall under Art 3 • Domestic legal framework did not include sexual orientation among grounds for the commission of hate crime or discrimination offences • Prima facie indications that two of the applicants suffered violence motivated or influenced by prejudice • Despite the authorities investigating and convicting the perpetrators with some consideration to the homophobic context, no charges or prosecution brought for a hate-motivated attack • Attackers’ demonstration of hostility towards applicants due to their perceived sexuality not taken into account in determining punishment • State’s failure to discharge its duty to ensure violent attacks motivated by hostility towards victims’ actual or presumed sexual orientation did not remain without an appropriate response
Judgment : https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-243999%22]}
See : https://www.sexualorientationlaw.eu/documents/80-european-court-of-human-rights
See : https://policehumanrightsresources.org/case-of-bednarek-and-others-v-poland-application-no-58207-14
USA: Trump Administration Restricts Visa Eligibility for Trans Women Athletes
More: https://www.them.us/story/trump-administration-immigration-visa-restrictions-trans-women-sports
ECtHR: Minasyan v Armenia (59180/15) judgment | 07.01.2025 (effective legal framework protecting from media attacks against LGBT-activists)
67. The Court notes, in particular, that the domestic courts gave full weight to the author’s right to freedom of expression and little to no importance to the effect of his statements on the applicants and their private life. In doing so, the courts stressed the fact that the author was a representative of the press reporting on a matter of public interest. The Court reiterates in this connection that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see Bédat v. Switzerland [GC], no. 56925/08, § 50, 29 March 2016). Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern …
69. The Court cannot accept as an example of responsible journalism an article propagating hatred, hostility and discrimination against a minority, in this case the LGBT community, which, at the material time, appeared to be one of the main targets of widespread hostility, hate speech and hate‑motivated violence in the country [emphasis added] (see Oganezova, cited above, §§ 87‑122, as well as the ECRI report and the third-party submissions in paragraphs 33 and 51 above respectively), and against those, like the applicants, who were active in promoting and defending the rights of that minority. The domestic courts failed to recognise the author’s hostile tone and intentions and the impact that his statements had on the applicants’ Article 8 rights. His expressions, which were meant to incite intolerance and hostility against the applicants with the clear intention of intimidating them and causing them real harm, were downplayed by the courts and regarded as legitimate expressions of “criticism” in the context of a debate on a matter of public interest. By doing so, the domestic courts failed to protect the applicants from speech advocating intolerance and harmful acts in breach of Article 8 of the Convention.
EU court questions Italy’s ‘safe country’ list for migrants [taking into account the protection of minorities]
1 August 2025
While ruling Italy’s plan to fast-track migrant deportations is legal, the European Court of Justice set out some limits. Those include disclosing sources for their assessment of a country being considered “safe.”
A second condition stipulated by the court is that a state can only be designated as a safe country of origin if it offers adequate protection to the entire population, including minorities.
More: https://www.dw.com/en/eu-court-questions-italys-safe-country-list-for-migrants/a-73500838
CJEU: Alace (C-758/24) – judg. 1 Aug 2025 – safe country of origin
“a Member State may not designate as a ‘safe’ country of origin a third country which does not satisfy, for certain categories of persons, the material conditions for such a designation. The new regulation, 4 which allows designations to be made with exceptions for such clearly identifiable categories of persons, will be applicable as from 12 June 2026, but it is open to the EU legislature to bring that date forward.”
Press Release: https://curia.europa.eu/jcms/upload/docs/application/pdf/2025-08/cp250103en.pdf
World Athletics introduces gene test for female category
30 July 2025
Athletes who want to compete in the female category for world ranking competitions from September will have to take a one-time gene test, says governing body World Athletics.
More: https://www.bbc.com/sport/athletics/articles/cn84gp55153o
Saint Lucia court strikes down gay sex ban
Protestors in Saint Lucia condemning the nation’s homosexuality laws in 2012. (Getty)
A Saint Lucia court has struck down a set of laws criminalising homosexuality, in a major win for LGBTQ+ rights in the Caribbean.
Judges in the eastern Caribbean nation ruled on Tuesday (29 July) that laws banning so-called “gross indecency” and “buggery” were unconstitutional.
The High Court of Saint Lucia argued that the colonial-era laws unfairly targeted LGBTQ+ people and contravene fundamental human rights, including rights to privacy, freedom of expression, and protection from discrimination.
It is now the fifth country in the Eastern Caribbean region to decriminalise same-sex activity after Antigua & Barbuda, Barbados, Dominica, and St Kitts & Nevis.
Only five countries in the Western Hemisphere continue to ban private, consensual same-sex activity – Grenada, Guyana, Jamaica, and Saint Vincent and the Grenadines. Trinidad and Tobago decriminalised homosexuality in 2018, but reversed its decision in March 2025.
Téa Braun, CEO of the Human Dignity Trust, told PinkNews that the ruling marked “another significant legal milestone” for the LGBTQ+ community both in the Caribbean and worldwide.
“[The ruling] demonstrates the importance of the courts when lawmakers fail to respect fundamental human rights,” Braun continued. “We extend our heartfelt congratulations to the litigants and activists who have tirelessly pursued justice.”
Saint Lucia’s anti-gay laws, which were inherited from the British during the colonial period, were retained in 2004 after the island nation updated its Criminal Code. Those found in violation of the law faced up to 10 years’ imprisonment.
In 2021, a human rights tribunal found that laws criminalising homosexuality violate international fundamental human rights laws.
You may like to watch
Issued by the Inter-American Commission on Human Rights, the ruling found that the Jamaican government had violated multiple international laws by criminalising homosexuality in the nation.
Despite the ruling, homosexuality is still illegal in the region, which is among one of the worst for LGBTQ+ rights, according to Equaldex.
More: https://www.thepinknews.com/2025/07/30/saint-lucia-court-homosexuality/
India: Madras High Court states same-sex couples can form a family without marriage
Interesting Article: Repost: Narin Nosrati: Whose Values? Verfassungsblog 16.6.2025 [CJEU Commission v. Hungary]
Value-based reasoning features prominently in CJEU case law. The most recent example is AG Ćapeta’s opinion in Commission v. Hungary. While AG Ćapeta finds an infringement of Article 2 TEU on the ground that “disrespect and marginalisation of a group [LGBTQI+ people in this case] in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights” (para. 262), this commitment to equality appears in contrast to how values are mobilised in asylum law. Especially gender and sexuality-based claims are often subject to selective scrutiny driven by cultural stereotyping and value-based conditionality. This tension thus reveals a deeper ambiguity in the legal politics of values in the EU: what is treated as absolute (“red line”) within the Union turns flexible and conditional in cases concerning asylum, integration, as well as anti-discrimination.
A closer look at the “feminist” cases (WS, K and L, and AH and FN) reveals how “Western values”-centred reasoning is deployed at the Member State level and re-elaborated by the CJEU as the fundamental value of gender equality. The EU Agency for Asylum (EUAA) recently hailed the feminist asylum case law as bringing “increased clarity” to the assessment of women seeking international protection. Yet it is precisely this claim of clarity that we wish to challenge: we argue that value-based reasoning risks opening the door to ideological reinterpretations and, as Saniya Amraoui recently observed, to othering.
While we will not dive into the vast debates in legal philosophy about values in law, we build on the acknowledgement that we are dealing with complex and contested grounds. In what follows, we question what this might reveal about the broader legal and political landscape in which asylum, identity, and human rights intersect.
Recent CJEU rulings mark a shift toward a more gender-sensitive interpretation of EU asylum law. In WS, the Court recognised that gender-based violence, even in the private sphere, can constitute persecution. It confirmed that women may qualify as a “particular social group” in line with the Istanbul Convention and CEDAW. This reasoning was extended in K and L, where the Court considered whether two Iraqi teenage girls could be granted protection because they had internalised the value of “gender equality” during their time in the Netherlands. The Court accepted this identification with gender equality as a defining group characteristic, implicitly tying refugee protection to value alignment and lifestyle. Finally, in AH and FN, the Court held that all women in Afghanistan, facing systematic oppression under the Taliban regime, may qualify as a particular social group, without requiring individualised proof of persecution. This decision confirmed that structural discrimination and denial of basic rights can meet the threshold of persecution.
While these cases have been welcomed as a feminist turn, and while it is true that the Court recognised the need for gender sensitivity when dealing with the question of persecution, one aspect has not gained as much attention: the judicial classification of “Western values” or, as the Court calls it, the fundamental value of gender equality. This is not to downplay the significance of recent judicial developments – we fully acknowledge the importance of the efforts to advance more gender-sensitive and intersectional interpretations of migration and asylum law. However, these gains have come at the cost of a continued othering process of asylum seekers’ countries (and societies) of origin.
In K and L (para. 63), the CJEU held that
“it is for the referring court to ascertain, in particular, whether the applicants in the main proceedings genuinely identify with the fundamental value of equality between women and men […] by seeking to benefit from that equality in their daily lives, with the result that that value constitutes an integral part of their identity and whether, as a result, they would be perceived as being different by the surrounding society in their country of origin”.
In light of this, we must ask: is this truly a victory for feminism?
Arguably, what complicates adjudication in these cases is the tension between the regimes of refugee law and human rights law. As AG de la Tour has addressed it in AH and FN (paras. 51-53) and WS (paras. 1-3), this tension relates to the problem posed by dealing with acts of persecution (gender-based violence in these cases) which are both protected by (international and European) human rights standards and systematically occurring across EU Member States. In principle, Article 78(1) TFEU resolves this tension by requiring international law to be considered when interpreting EU law. The EU Qualification Directive (2011/95/EU) must be interpreted in line with the 1951 Geneva Refugee Convention, as guided by UNHCR documents, as well as key human rights treaties such as CEDAW and the Istanbul Convention. These instruments collectively establish that gender-based violence and discrimination constitute serious human rights violations. Moreover, the UNHCR Guidelines explicitly recognise that women can be considered a particular social group under refugee law without the necessity to form distinctive groups of women (para. 30) – such as those believing in “Western values”. Similarly, CEDAW defines discrimination against women as any distinction, exclusion, or restriction based on sex that impairs or nullifies the enjoyment of rights and freedoms on a basis of equality with men, and obliges states to actively eliminate such discrimination through legal and structural reforms (Article 1), and the Istanbul Convention obliges states to recognise gender-based violence as a form of persecution (Article 60).
Why has the notion of “Western values” become entrenched in the jurisprudence and administration of several Member States, although EU asylum law does not require an assessment of such values? For example, Germany, Austria, and the Netherlands have adopted narrow interpretations of the category “particular social group” when it comes to women. Instead of recognising women as a group per se – a conclusion that the CJEU has deemed legitimate in AH and FN when dealing with Afghan women under the Taliban regime – courts often require further specification. Accordingly, women only qualify if they fall into subcategories like “single women without male protection” or “Westernised women”.
Since the protection from gender-based persecution is universally recognised, irrespective of cultural identity, lifestyle, or adherence to so-called Western values, we would expect courts not to frame asylum claims through the lens of the “belief” in fundamental values (AG Collins Opinion in K and L, para. 29), but to focus on the core principles of equality, self-determination, and protection from persecution. What is the risk of taking the first path?
Queer asylum jurisprudence and scholarship offer valuable insights into the risks of selective protection. It is particularly relevant to look into two cases, X, Y and Z (2013) and A, B and C (2014), in which the Court was faced with the task of interpreting EU asylum law in the case of asylum applications based on sexual orientation and gender identity (SOGI).
The Court clarified three main issues: first, to qualify as members of a particular social group, applicants need to satisfy both an internal requirement (identifying with the social group) and an external requirement (performing a distinctive trait of their membership) (X, Y and Z, para. 45). Second, the Court rejected the so-called discretion reasoning, namely the set of legal techniques deployed by asylum authorities to refuse international protection on the grounds that applicants could be discreet and thus conceal the characteristics that expose them to the risk of persecution (X, Y and Z, para. 71). Third, while it excluded the possibility of deciding on an application exclusively on the basis of culturally shaped stereotypes, the Court did not rule out that these can indeed play a role in the individual assessment (A, B and C, para. 62).
Building on this case law, a growing body of scholarship on queer asylum claims identifies three key lessons.
First, Sabine Jansen and Thomas Spijkerboer as well as Carmelo Danisi, Moira Dustin, Nuno Ferreira, and Nina Held demonstrate in their empirical studies on the SOGI asylum claims across Europe that credibility assessments are heavily influenced by stereotypes and dependent on European conceptions of LGBTIQ+ identities, experiences, behaviours, and affects. These include, for instance, expectations regarding LGBTIQ+ applicants’ ability to articulate their psychological and emotional path of self-discovery and coming out or assumptions about their feelings of shame or their exclusion from families and communities.
Second, as Janna Wessels shows, the cumulative criteria for the determination of particular social groups subject applicants to “double binds” whereby they are “damned if they do and damned if they don’t” (p. 44): applicants must perform an identity convincingly enough to be believed, but risk being disbelieved if that performance is deemed inauthentic, strategically exaggerated or unfit for a culturally specific conception of emancipation. One example is found in the Austrian court’s decision in AH and FN (prior to the CJEU referral): while that court imposed on the applicants the requirement to prove their adoption of a Western lifestyle in order to access protection, it also disbelieved them inasmuch as it found that such lifestyle had not “become such an essential part of their identity that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin” (AH and FN, para. 23).
Third, while the ruling out of discretion has given way to a heightened scrutiny of credibility if not a general attitude of disbelief (see Jenni Millbank), discretion reasoning cannot be fully eliminated since it is “the site where the extent of the Convention grounds is negotiated in refugee law” (Wessels, p. 35).
When it comes to the “feminist” cases under examination, the most compelling insight from queer asylum literature concerns the role of the discretion and credibility requirements in the Court’s reasoning. In K and L, for instance, the Court accepts, as a ground of persecution, the applicant’s membership of a particular social group to be defined by the internalised belief in gender equality as enshrined in Article 2 TEU and “absorbed” during their stay in an EU Member State (para. 34). By focusing on “particular social group” rather than, for example, on “religion” or “political opinion” – as suggested by the Dutch referring judge (para. 27) – and by insisting on the cumulative elements of internal identification and external recognisability, the Court puts applicants in a vulnerable position: the focus shifts away from the persecutor and the risk of persecution, and instead centres on the persecuted’s acts and identities – ultimately making them responsible for proving their entitlement to protection (Wessels, pp. 38, 40). Second, the Court establishes a threshold of genuine, effective identification with all the components of gender equality as set by international legal instruments (K and L, paras. 37-44) in order to fulfil the internal requirement. In so doing, the Court imposes such a high burden of proof on applicants that they are consequently exposed to the risk of stereotyped credibility assessments. This mirrors, we argue, the “double binds” documented in queer asylum cases.
The Opinion in K and L by AG Collins further demonstrates that constructing women identifying with gender equality as a particular social group is problematic. Collins rightly rejects the East-West binary proposed by the referring court because it “perpetrates a false dichotomy that constitutes part of a divisive dialogue” (para. 18). However, he later reifies this very division by suggesting that it is “plausible” that the applicants, “in contrast to their peers in Iraq”, had so “accepted and absorbed” the belief in gender equality that it became “a part of their character” (para. 40). By framing it this way, AG Collins not only ties eligibility for protection to a perceived value alignment, but also exclusively associates the possibility of “absorbing” that value to growing on European territory. What emerges, then, is a troubling paradox: value-based reasoning, even when it appears to support progressive outcomes, undermines the universality and legal clarity of refugee law provisions. By grounding protection in applicants’ supposed internalisation of certain values, courts risk opening the door to ideological reinterpretations that may ultimately undermine international protection altogether.
This purported feminist evolution in case law is steering refugee protection away from its core purpose: to protect individuals that suffer serious human rights violations regardless of cultural adaption. It unduly shifts the attention from the persecutor to the persecuted, centres the individual assessment on the applicants’ internalisation of abstract values, understood in a Eurocentric way, and thereby reproduces the same double binds identified in queer asylum cases. Protection becomes conditional not on risk or need, but on demonstrable assimilation into a culturally preferred model of identity based on exclusionary conceptions of “European” values.
To be clear: values are constitutive of legal systems. They acquire meaning through codification, interpretation, and institutional practice. However, relying on value-based arguments in legal reasoning carries significant risks. First, it blurs the line between normative clarity and moral abstraction, creating legal uncertainty and unpredictability. Second, values can be selectively instrumentalised – even more so when framed through the lens of “Western” ideals. As such, we see that values often function as contested tools, deployed to shape or limit access to individual rights.
To serve justice rather than power, values must be legally defined, procedurally constrained, and subject to democratic scrutiny. In pluralistic societies committed to the rule of law, this calls for critical awareness, legal precision, and democratic reflection.
We therefore call for a broader, more deliberate debate about the role that values play in European law: How are they defined? Who determines them? And how do they interact with the legal principles meant to ensure equality before the law?
The post Whose Values? appeared first on Verfassungsblog.
Interesting Article – Repost: Sarah Ouředníčková, A Door Opened, But Not Fully (Verfassungsblog 17.6.2025) [ECtHR, T.H. v. the Czech Republic – sterilisation as a precondition for legal gender recognition]
On 12 June 2025, the European Court of Human Rights issued a judgment in T.H. v. the Czech Republic, a case brought by a non-binary person, finding a violation of Article 8 of the Convention for requiring sterilisation as a precondition for legal gender recognition. Legally, the Court walked a familiar path, citing its established case law and reasserting well-known principles. But this case marked an unspoken first: it involved a non-binary applicant. While the applicant’s identity was acknowledged in passing, the Court quickly reframed the claim in binary terms, referred to the applicant using masculine pronouns, and declined to engage with the broader questions of inhuman and degrading treatment or discrimination. The result is thus a mixed outcome: the judgment opens a legal door but offers little warmth to those standing outside the traditional gender binary.
T.H. is a non-binary person, assigned male at birth, but having struggled considerably with their gender identity from their early age (for a more detailed introduction see our previous post on the underlying decision by the Czech Constitutional Court (CCC)). As the ECtHR noted, T.H. has undergone “hormonal treatment (to reduce testosterone levels) and some body aesthetic procedures” (§ 7) but has never undertaken a sex reassignment surgery. Therefore, the Czech authorities register and treat T.H. as a man. That is reflected inter alia in T.H.’s personal numerical code, also known as “birth number”, which has the male form.
This explains the procedural strategy: T.H. had approached Czech administrative authorities with a request to change the birth number to a “neutral” (which, admittedly, does not exist in Czechia) or at least a “female” form so that this unique identifier would not present T.H. as a male person and would not require a repeated coming-out in everyday situations where T.H.’s documents did not match T.H.’s appearance. And while the CCC presented the case as a technical litigation “about birth numbers”, this case really concerns much deeper issues, including dignity and recognition of persons belonging to minorities.
The ECtHR found unanimously (and unsurprisingly) that the Czech requirement of undergoing surgery and sterilisation as a condition for legal gender recognition violates the right to respect for private life under Article 8. The Court reaffirmed that such a requirement imposes on certain persons “an insoluble dilemma”: it forces them to choose between preserving their physical integrity and gaining legal recognition of their gender identity (§ 58; see also X and Y v. Romania, § 165). The judges considered that while States enjoy a margin of appreciation in this morally sensitive area, that margin narrows considerably when fundamental aspects of personal identity and autonomy are at stake. However, the Court declined to examine the applicant’s complaints under Articles 3 and 14, holding that the violation of Article 8 sufficed. It also refused to award any compensation for non-pecuniary harm, stating that the finding of a violation was itself sufficient. Only a partial reimbursement of legal costs was granted.
In a case centred on recognition, language is paramount. The Court acknowledges that T.H. identifies as non-binary (§ 6) and has requested to have their male unique identifier changed to, preferably, a neutral one or, at least, a female one (§ 7). However, the Court proceeds to use masculine pronouns throughout the judgment. It justifies this by stating that
“on the date of lodging of the application, the applicant was regarded for civil-law purposes as belonging to the male sex. For that reason, the masculine form is used in referring to him; however, this cannot be construed as excluding him from the gender with which he identifies.” (§ 4)
This misstep undermines the very dignity the Court ought to uphold. Even as the judgment affirms a right, its tone betrays a missed opportunity for respect.
First, pronouns are a crucial way of identifying with a gender for anybody and of affirming their gender identity. The use of preferred pronouns, including by judges, has a fundamental importance for the recognition particularly of trans and non-binary persons. Scholars such as Rosalind Dixon have emphasised the importance of the language used by judges for a sense of dignity and respect on the part of applicants. Similarly, Sarah Ganty has shown how the language and narratives used by judges – as (meta)narrators – can become part of the cultural processes reproducing (or tackling) inequalities. At the same time, the use of preferred pronouns does not prejudge the merits of the claim as to whether one’s gender should be recognised, as noted by dissenting Judge Šimáčková in the first Transgender Judgment of the CCC. In other words, by using the applicants’ preferred pronouns, nothing is lost but much is won in terms of respect.
Secondly, the justification of using pronouns based on the legal sex/gender of the person at the time of lodging the application is inconsistent with the Court’s usual approach of addressing trans applicants in accordance with their gender identity. It is true that the Court has sometimes used the pronouns according to the officially registered sex/gender including in the key case of A. P., Garçon and Nicot v. France which also dealt with the refusal to recognise gender without undergoing gender reassignment surgery and which the applicant in T.H. relied on. However, the Court usually uses the preferred pronouns, including in its other key cases such as Goodwin v. UK, as well as more recent cases dealing with the refusal to recognise gender without undergoing surgery such as the 2021 case of X and Y v. Romania or the 2022 case of A .D. and Others v. Georgia. The Court’s refusal to use the applicant’s pronouns in T.H. is thus a surprising and unwelcome setback.
Finally, the Court’s refusal to use the applicant’s preferred pronouns is even more surprising and disrespectful given that the Court used feminine pronouns when first communicating the case. Interestingly, even the Government consistently used feminine pronouns in its communication with other institutions, which makes the Court’s choice absurd. The Government continued to use feminine pronouns even in its press release about the judgment. In a rare reversal of roles, the respondent State has thus appeared more attuned to the lived identity of the applicant than the Court itself.
Focusing exclusively on Article 8 while ignoring potential violations of Articles 3 and 14 significantly narrows the judgment’s reach and we consider it a missed opportunity. Article 14, in particular, could have grounded a stronger, intersectional judgment addressing gender-based discrimination.
The Court noted that while the applicant relied on more provisions, it was up to the Court – as the “master of the characterisation” – to decide under which Article(s) a complaint is to be examined (§ 46). It argued that since the applicant had not been subjected to any medical intervention against their will or any interference with their reproductive rights as well as “the nature of the proceedings brought by him before the domestic authorities and to the approach taken by it in similar cases”, referring to A.P., Garçon and Nicot and X and Y v. Romania, the complaint falls to be examined solely under Article 8. However, in Garçon, the situation was different in that only one of the three applicants had raised Article 3 (see dissenting opinion in Garçon, § 3 and 21). Moreover, Article 3 was still relied upon by the Court in its reasoning. The Court established that mandatory gender reassignment surgery affects “an individual’s physical integrity, which is protected by Article 3” as well as Article 8 (§ 127) and results in “making the full exercise of their right to respect for their private life under Article 8 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as protected by that provision and also by Article 3 of the Convention” (§ 131).
We do understand that the applicant in T.H. had not been subjected to forced sterilisation. However, the very fact that access to legal gender recognition remained contingent upon such a procedure arguably created a form of coercive pressure. In its Guide on Article 3, the Court states
“that a threat of torture can also amount to torture, as the nature of torture covers both physical pain and mental suffering. In particular, the fear of physical torture itself may in certain circumstances constitute mental torture” (p. 8).
It is worth asking whether a person must actually undergo inhuman or degrading treatment in order for the Court to assess the situation under Article 3, if such a condition is not applied regarding torture under the same article. Instead, the Court should have fully examined the complaint under Article 3, given the severity of the required medical intervention including involuntary sterilisation; an intervention that is far from hypothetical for persons such as T.H. By refusing to engage Article 3, the Court missed the chance to affirm what the UN Special Rapporteur and others have made clear: forcing trans persons to choose between recognition and sterilisation is not just privacy infringement; it is inhumane.
Furthermore, the Court held there is no need to examine the complaint under Article 14 since it had found a violation under Article 8 (§ 62). This is the Court’s typical approach of sidelining Article 14 as a Cinderella provision and shying away from developing an equality and anti-discrimination jurisprudence. However, explicitly condemning discrimination can have powerful implications for oppressed and marginalised individuals. As in other trans rights cases, the Court opted for the safer terrain of individual privacy and self-determination, rather than confronting the structural discrimination that Article 14 is designed to expose. On the contrary, we have witnessed a mirrored attitude in Semenya v. Switzerland, a key Grand Chamber case about a famous South African professional athlete who had been forced to hormonally decrease her natural testosterone levels in order to compete in the female category. In Semenya v. Switzerland, the Court found a violation of Article 14 in connection with Article 8 while concluding that there was no need to examine separately the complaints under Article 8 alone.
The refusal to grant compensation – despite acknowledging a violation – risks signalling that the harm endured is not materially recognised. This undermines the applicant’s lived experience and may discourage future litigation from marginalised groups. A violation without remedy rings hollow, especially for those already on the legal margins. Symbols matter.
In a different case decided last spring, the CCC concluded that the sterilisation requirement was unconstitutional, quashed the respective legislative provisions with effect from 1 July 2025 and set a clear deadline for legislative reform by the end of June 2025. A draft law was circulated but has been criticised for introducing burdensome and medically unnecessary conditions, such as mandatory psychiatric assessments, hormone therapy, and a year-long waiting period. Even more troubling is the political inertia surrounding the bill. The Ministries of Justice, Health, and the Interior have each shifted responsibility to the others, resulting in a bureaucratic stalemate.
Thus, no legislation has been adopted – and with just two weeks remaining, none is realistically expected before the deadline expires. That means that although the sterilisation requirement will cease to apply as of July 2025 (as a consequence of the abovementioned CCC ruling), the legal framework for gender recognition will remain ambiguous and unregulated at statutory level. Ministerial guidelines might be issued at the last minute, but such measures lack the democratic legitimacy of legislation and can be easily altered to reflect shifts in political will. This looming legal vacuum – a situation the ECtHR was aware of (§ 26) – raises serious concerns for legal certainty.
The judgment in T.H. represents a partial but important step in the ongoing development of the ECtHR’s jurisprudence on legal gender recognition. It reaffirms that requiring sterilisation as a condition for the recognition of one’s gender identity is incompatible with Article 8. It also emphasises the importance of judicial dialogue (§ 59), inviting national constitutional courts to share the responsibility for European human rights protection. However, the Court’s reasoning remains narrowly framed. By misgendering the applicant, reframing the case within a binary framework, and declining to engage with the potential implications under Articles 3 and 14, the Court missed an opportunity to address what the case was really about.
The post A Door Opened, But Not Fully appeared first on Verfassungsblog.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 