MEDICINSKE USLUGE POLNOG PRILAGOĐAVANjA KAO USLOV ZA PRAVNU PROMENU POLA U SVETLU PRAKSE EVROPSKOG SUDA ZA LjUDSKA PRAVA

Abstract

By its decision in case Goodwin v. United Kingdom (2002), The European Court of Human Rights has recognized the positive obligation of states to provide conditions for the legal recognition of preferred gender in the context of the right to respect for private life. In this regard, the Court emphasized gender identity as an important element of personal identity and an integral part of the transgender person's right to private life. On the other hand, states have kept their margin of appreciation regarding requirements needed for changing gender data in civil registries or in other words legal recognition of preferred gender. After Goodwin case, that has laid foundations for the rights of transgender people to gender identity, further development of this right was set by the decision of the European Court of Human Rights in case A.P., Garçon and Nicot v. France (2017). By this decision, the Court has further narrow the margin of appreciation removing imposing of sterilisation as a requirement for legal gender recognition. Finally, The European Court of Human Rights has taken the position in the latest judgment X and Y. v. Romania (2021) that conditioning legal recognition of preferred gender with surgical interventions of gender reassignment represents breach of the right to respect private life. Thus, the Court further approached Council of Europe Resolution 1728 (2010) according to which states are suggested to remove from the requirements for legal gender recognition the subjection to any medical service of gender reassignment, including hormone therapy. Domestic legislation has retained only hormone therapy as a necessary condition for legal gender reassignment. Although this solution is in accordance with the latest case law of the European Court of Human Rights, another step is needed to make the exercise of the right to gender identity adjusted to the "soft law" of the Council of Europe and the bodies under the auspices of the United Nations.