Start the Clock*<\/p>\n
By Eli Cooper**<\/p>\n
This essay was selected as the Runner Up for the HHRJ Spring 2025 Essay Contest.<\/em><\/p>\n I. Introduction<\/p>\n Intersex people are far too often left out of conversations surrounding rights protections around the world.[1]<\/sup><\/a> They often experience extreme violations of their human rights, including but not limited to \u201cinfanticide . . . , forced and coercive medical interventions, discrimination, and lack of access to justice.\u201d[2]<\/sup><\/a> Yet, to some, intersex people\u2019s rights are \u201con a steady rise in Europe,\u201d[3]<\/sup><\/a> especially with recent state-level developments[4]<\/sup><\/a> and intergovernmental organization resolutions.[5]<\/sup><\/a> To others, recent European Court of Human Rights decisions (\u201cECtHR\u201d) are a reminder that there is more work to be done.[6]<\/sup><\/a><\/p>\n The 2022 admissibility decision in M. v. France <\/em>indicates that the court is primed to block intersex genital mutilation (\u201cIGM\u201d).[7]<\/sup><\/a> While the ECtHR did not rule on the merits of the case because the applicant had not exhausted their domestic avenues for recourse, the ECtHR \u201cset out principles\u201d which examine non-consensual IGM procedures that are not medically necessary in the context of Article 3 of the European Convention of Human Rights (\u201cECHR\u201d) which prohibits torture and inhuman or degrading treatment.[8]<\/sup><\/a> Observers note that the decision made \u201can implicit, albeit undisputable, statement\u201d that the ECtHR will \u201cfurther scrutinise the[se] medical practices\u201d when an admissible case is heard.[9]<\/sup><\/a> While M. v. France<\/em> does not impact current obligations, it prompts \u201cMember States\u2019 obligations of due diligence\u201d[10]<\/sup><\/a> and, paired with Semenya v. Switzerland,<\/em> indicates the ECtHR will begin acknowledging a positive, as opposed to implicit, obligation for states to protect intersex people from medical discrimination.[11]<\/sup><\/a> style=”font-weight: 400″>In addition to blocking IGM, the next likely expansion of rights under the ECHR is a \u201cneutral\u201d gender recognition of intersex people, despite the immediacy of that recognition being put into limbo by the 2023 decision in Y. v. France<\/em>. The Y. v. France<\/em> case was the first to reach the merits on the issue of intersex identity recognition (\u201cIIR\u201d), and in the case the ECtHR ruled that states\u2019 margin of appreciation\u2014or the amount of discretion they have in implementing any given human rights obligation\u2014is wide because of both a lack of European consensus on IIR[12]<\/sup><\/a> and the public interest in an individual state\u2019s \u201csocial and judicial organization.\u201d[13]<\/sup><\/a> Specifically, the court identified \u201cprofound repercussions\u201d on French law as it is \u201cconstructed on the basis of the binary nature of the sexes.\u201d[14]<\/sup><\/a> With no European consensus on IIR and strong administrative concerns, the balance, according to the court, is currently tipped in favor of the decision-maker, meaning states are not violating the ECHR by not allowing IIR on civil status documents.[15]<\/sup><\/a><\/p>\n Despite the arguable recalcitrance of the Y. v. France <\/em>decision, especially in light of the EctHR\u2019s more assertive\u2014and some ways more nuanced\u2014decision in M. v. France<\/em>, the logic<\/em> in Y. v. France <\/em>nevertheless provides hope, given it strikingly mirrors early cases in other areas of gender identity that have been litigated before the court. Specifically, when finding no violation in Y. v. France<\/em>, the ECtHR noted the \u201cliving doctrine\u201d aspect of the ECHR and called for \u201cconstant review\u201d regarding \u201cscientific and societal developments.\u201d[16]<\/sup><\/a> Additionally, the administrative costs and lack of a European consensus on the issue guided the ECtHR\u2019s determination in both Y.<\/em> and prior cases.[17]<\/sup><\/a><\/p>\n Ultimately, this comparison between Y. v. France<\/em>, M. v. France<\/em>, and historical gender identity recognition cases outlines two potential approaches for the recognition of IIR under the ECHR. Irrespective of the approach that would be most successful, the historical analogs to the fight for IIR and the due diligence obligation created by Y. v. France <\/em>indicate that it is only a matter of time before the ECtHR recognizes a positive obligation. Time to start the clock.<\/p>\n II. The \u201cFast\u201d Approach \u2013 Lessons from the Dissent \u2013 Judge \u0160im\u00e1\u010dkov\u00e1<\/p>\n Cases like M. v. France<\/em> and Semenya v. Switzerland,<\/em> discussed above, indicate a willingness to prevent medical discrimination against intersex people. If the ECtHR is apt to decide that IGM and other medical procedures constitute \u201cill-treatment within the meaning of Article 3,\u201d as they seem to indicate in M. v. France,<\/em> then tying IIR and IGM together could prove useful for a faster adoption of IIR.[18]<\/sup><\/a> Taking cues from this willingness and lessons from Judge \u0160im\u00e1\u010dkov\u00e1\u2019s dissent in Y. v. France,<\/em> the first approach to IIR sees a severing of IIR from broader non-binary gender recognition (\u201cNBGR\u201d) and a tying of IIR to the prevention of IGM.<\/p>\n The conflation of the two issues is directly addressed by Judge \u0160im\u00e1\u010dkov\u00e1, who acknowledges that Y. v. France<\/em>, the IIR case, should not implicate NBGR.[19]<\/sup><\/a> The ECtHR majority seems to focus its primary inquiry in Y. v. France<\/em> on whether member states allow NBGR on civil status documents, determining that the lack of positive consensus indicates that states should still have a wide margin of appreciation.>[20]<\/sup><\/a> Yet while intrinsically linked, NBGR and IIR have different considerations and implications.[21]<\/sup><\/a> NGBR typically relies solely on a theory of gender discrimination, whereas, one could consider IGM\u2019s implications of discrimination based on sex characteristics in a way that disentangles IIR from discrimination on the basis of gender identity, as in M. v. France<\/em>.[22]<\/sup><\/a> While IIR and NBGR both implicate gender discrimination, Judge \u0160im\u00e1\u010dkov\u00e1\u2019s Y. v. France<\/em> dissent indicates that this disentanglement could be successful.[23]<\/sup><\/a><\/p>\n Disentangling IIR from NBGR opens the possibility for IIR to be tied to IGM, implicating Article 3 and providing an alternative approach for advocates to take.[24]<\/sup><\/a> Judge \u0160im\u00e1\u010dkov\u00e1 in Y. v. France<\/em> focused on the physical and emotional implications of mandating a binary gender for civil status documents, rather than highlighting the gender discrimination created.[25]<\/sup><\/a> Naturally, IGM is incredibly harmful and has countless negative physical and emotional impacts throughout an intersex person\u2019s life.[26]<\/sup><\/a> Y\u2019s experience of being prescribed ineffective and harmful medical treatments based on their legal status as a man illustrates that the lack of IIR has negative impacts that extend well beyond newborn care.[27]<\/sup><\/a>Denying intersex people recognition on official documents is directly linked to the \u201cperpetuation of IGM,\u201d[28]<\/sup><\/a> and without recognition, the \u201clegal binarity\u201d necessarily implies permission from the state to permit mutilation and lifelong medical mistreatment.[29]<\/sup><\/a> Thus, once the ECtHR rules positively on a case similar to M. v. France<\/em>, an Article 3 challenge to guarantee IIR would be the fastest way to secure the right.<\/p>\n III. The \u201cSlow Approach\u201d \u2013 Lessons from Gender Reassignment Recognition<\/p>\n There are many key similarities between the ECtHR\u2019s starting point on recognizing IIR and the protection of gender reassignment recognition (\u201cGRR\u201d) for transgender people. When the ECtHR first began taking cases concerning GRR in Rees v. The United Kingdom<\/em>, the \u201cmargin of appreciation\u201d was very wide, and states had significant latitude in determining what was feasible and appropriate.[30]<\/sup><\/a> Challenges to document adjustment systems primarily failed because alterations to certain documents, record-keeping systems, or legal principles would have significant administrative and social consequences,[31]<\/sup><\/a> the documents in question were used sparingly,[32]<\/sup><\/a> and the adjustments requested by the applicants would not have adequately addressed their issues.[33]<\/sup><\/a> This logic directly mirrors Y. v. France <\/em>and is typical when the court tackles a \u201cnovel issue\u201d with positive obligations.[34]<\/sup><\/a><\/p>\n Sixteen years after Rees, <\/em>this logic would be overcome in Christine Goodwin v. the United Kingdom.<\/em>[35]<\/sup><\/a> In this case, the court found many of the previous factors, including the administrative burden that would arise from requiring adjustments to the birth register system, insufficient to continue to support policies that did not allow gender reassignment recognition.[36]<\/sup><\/a> The court identified many instances in which the disconnect between someone\u2019s \u201cgender identity\u201d and \u201clegal status\u201d poses a \u201cserious interference with private life.\u201d[37]<\/sup><\/a> Additionally, the court pointed to a growing European consensus supporting medical,[38]<\/sup><\/a> social, and legal[39]<\/sup><\/a> acceptance of gender recognition following gender reassignment surgery.<\/p>\n If this logic has been overcome in the context of gender identity once, there are undoubtedly lessons to learn as the fight for IIR continues. Given the balancing act nature of the ECtHR\u2019s analysis, any progression in the following areas would strengthen future cases.[40]<\/sup><\/a><\/p>\n a. Build State-Level Support<\/p>\n When determining whether to recognize rights in the context of gender identity, the court continuously looked towards European consensus to guide its determination.[41]<\/sup><\/a> In cases following Rees<\/em>, the court would revisit its previous determinations regarding European consensus, looking for a standard \u201cEuropean approach.\u201d[42]<\/sup><\/a> Finding none, the court would not recognize GRR but would leave the door open for when developments were sufficient. State-level developments in member states and internationally[43]<\/sup><\/a> eventually convinced the ECtHR in Goodwin <\/em>that there was sufficient international consensus on \u201cproviding legal recognition following gender re-assignment\u201d and eschewed the emphasis on a \u201cEuropean approach,\u201d opting to recognize the right and allow states to make individualized adjustments to the \u201clegal and practical problems.\u201d[44]<\/sup><\/a><\/p>\n Currently, in the context of intersex recognition, the court does not find a European (or international) consensus strong enough to find in favor of the intersex individual.[45]<\/sup><\/a> In Y. v. France,<\/em> the court noted five countries where IIR is explicitly permitted and five countries where similar proposals are being considered.[46]<\/sup><\/a> As the court saw it, positive developments in ten of forty-six member states are insufficient to constitute a European consensus, especially when half have only considered taking positive steps.[47]<\/sup><\/a> It is important to note that in this determination, the ECtHR focused on NBGR and not a more tailored focus on IIR.[48]<\/sup><\/a> Thus, the question asked by the court in future cases would be: \u201cHas there been sufficient development to indicate a European consensus on the matter of recognizing gender markers other than male or female?\u201d<\/p>\n Luckily, this question does not require states to take a uniform approach,[49]<\/sup><\/a> nor does it require a majority of states to have completed legal IIR.[50]<\/sup><\/a> Instead, the ECtHR should look for a general positive movement towards recognition across member states and should continue to narrow the margin of appreciation as more states show this positive trajectory. In the years since the decision, more states have illustrated a willingness to consider banning IGM, which could translate into the political will to institute IIR.[51]<\/sup><\/a> However, without explicit action in that direction, the ECtHR will have no evidence to support an emerging European consensus. Without an underlying level of political support, IIR will continue to be challenging to protect via litigation. With few substantive legal changes on this issue in the two years following the judgment, this approach necessitates advocacy at the state level if it is to find success. Luckily, the movement seems to be on a positive trajectory, so it likely becomes a question of when, not a question of if.[52]<\/sup><\/a><\/p>\n b. Scientific and Societal Developments<\/p>\n When the ECtHR identifies a lack of sufficient evidence to support recognizing a given right, it has previously called for \u201cconstant review\u201d regarding \u201cscientific and societal developments\u201d on that issue.[53]<\/sup><\/a> With respect to the case at hand, Y. v. France<\/em>, the court credited the testimony of the individual applicant and third-party intervenors, but it also looked for evidence that confirms the experience of a given identity group.[54]<\/sup><\/a><\/p>\n Thus, once a substantive right is denied, it is important in subsequent cases to show growth in academic and practical evidence to persuade the court that positive developments are sufficient to justify right recognition. In the years between the Rees<\/em> and Goodwin <\/em>decisions, <\/em>there was greater social acceptance of transgender people, increased medical recognition of gender identity disorder, and advancements in the sophistication of medical procedures.[55]<\/sup><\/a> While the ECtHR acknowledged that there were still unsettled questions, this development was sufficient to move scientific and societal developments from a losing issue in Rees<\/em>[56]<\/sup><\/a>to a neutral issue inGoodwin<\/em>.<\/em>[57]<\/sup><\/a><\/p>\n Despite the ECtHR\u2019s ruling in Y. v. France, <\/em>many of the pitfalls that plagued the fight for GRR will likely not persist, as evidenced by the substantial number of third-party resources relied upon in the judgment.[58]<\/sup><\/a> However, there are significant areas where scientific and societal developments could continue to improve to strengthen future cases. First, there has been an \u201cemerging shift in the medical perspective towards intersex people,\u201d especially surrounding newborn care and IGM.[59]<\/sup><\/a> Medical professionals continue to decry outdated traditional approaches to newborn care and develop medical treatments that are tailored and responsive to the unique position of intersex people. Promoting this development and tracking its prevalence would add to the body of information that the ECtHR could rely on in subsequent cases.<\/p>\n Additionally, publishing more specific data regarding the prevalence of human rights abuses against intersex people and updating resources that examine the European legal and societal context could fill an information gap.[60]<\/sup><\/a> Two primary reports relied upon by the ECtHR[61]<\/sup><\/a> from European Union and Council of Europe subsidiaries were published almost a decade earlier, in 2015, one of which even indicates that \u201cin-depth research is urgently needed.\u201d[62]<\/sup><\/a> While the third-party resources submitted in Y. v. France<\/em> discussed research from the years since 2015, these two reports may have been credited as more authoritative by the ECtHR. Updating these resources and supplementing them with third-party resources could also promote state-level developments.<\/p>\n In any situation, in preparation for the next case, it would be highly relevant to produce, compile, and present new evidence to the court to properly educate them and to illustrate positive development in the scientific and societal understanding of intersex people.<\/p>\n c. Sufficient Time<\/p>\n Y. v. France <\/em>sets a baseline for the court to consider moving forward, allowing interested parties to directly refute the original considerations that led the court to rule negatively.<\/p>\n Because of the usage of state-based margin of appreciation, the ECtHR strongly considers the administrative tax on the state of the remedies sought.[63]<\/sup><\/a> Complete legislative overhauls and system redesigns are too much to ask of a state that still has a wide margin of appreciation on the issue.[64]<\/sup><\/a> Systems that were well-suited for a change, however, would not receive the same grace from the court.[65]<\/sup><\/a> Judge \u0160im\u00e1\u010dkov\u00e1 already pointed out the administrative burdens would not be as drastic as claimed because French law already permits a grace period for determining the gender of children.[66]<\/sup><\/a> Additionally, now that this ruling has illustrated that the courts could be receptive to recognizing IIR in the future, the \u201cliving doctrine\u201d aspect of the ECHR indicates that states have an obligation of due diligence to consider when and how to implement IIR into their domestic policy.[67]<\/sup><\/a> The more time passes, the less weight is given to administrative burden arguments from member states.<\/p>\n Since the consideration of a state\u2019s margin of appreciation is a balancing act, progression in any of the discussed areas and other methods of refuting the ECtHR\u2019s baseline would develop a stronger argument for future IIR cases. If the ECtHR is likely to follow its own trajectory mirroring the development of the right to GRR, it would be expected that a case could be successful after sufficient time for societal and scientific understanding to develop. Additionally, with more of a European consensus and enough time for states to adjust systems that rely on binary gender construction, subsequent cases will strengthen. Hopefully, since IIR is starting its journey through the ECtHR with a more substantial baseline than GRR, it won\u2019t take sixteen years for the right to be realized.<\/p>\n IV. Conclusion<\/p>\n The clock has started for member states to determine how to implement IIR in their civil status document systems. Whether through an Article 3 approach where IIR is tied to IGM, a continuation of the traditional Article 8, or another approach not discussed here, it is highly likely that the ECtHR will provide a favorable ruling on this issue at some point. The immense work already done on this issue by advocates across the region has helped to craft a growing attitude to recognize the rights of intersex people and, despite not being explicit wins, M. v. France <\/em>and Y. v. France <\/em>should provide hope.<\/p>\n <\/a>* This piece was developed from a research project in partnership between Harvard Law School Advocates for Human Rights (Advocates) and the Institute for Strategic Litigation in Africa (ISLA). Similarities between this piece and other works by these institutions are due to shared authorship. The views expressed in this article are the author\u2019s own and do not represent those of these institutions.<\/p>\n ** J.D. Candidate, Class of 2027, Harvard Law School. The author would like to thank Justine Sheehan, Caroline Arnold, the rest of the Advocates project team, and Shiv Pandya for their feedback and support.<\/p>\n [1] See generally<\/em> Amy Frieder, Intersex Intervention,<\/em> Harv. Hum. Rts. J. Online (June 27, 2022), https:\/\/journals.law.harvard.edu\/hrj\/2022\/06\/intersex-intervention-a-health-and-human-rights-perspective\/ [https:\/\/perma.cc\/EPH6-DBPZ] (providing a general overview of the human rights violations faced by intersex people).<\/p>\n [2]<\/a> Diana Dehelean & Sarah Ourednickova, The Forgotten I in LGBTQIA+<\/em>, Oxford Hum. Rts. Hub (Feb. 22, 2023), https:\/\/ohrh.law.ox.ac.uk\/the-forgotten-i-in-lgbtqia-ecthr-turns-its-back-on-intersex-people\/ [https:\/\/perma.cc\/ARZ8-3GDV].<\/p>\n [3]<\/a> Filip Rak, Intersex Rights Emerging Across Europe<\/em>, Int’l Bar Ass’n (Feb. 8, 2024), https:\/\/www.ibanet.org\/intersex-rights-emerging-across-europe [https:\/\/perma.cc\/R9KW-YN2S].<\/p>\n [4]<\/a> See, e.g.<\/em>, Good Practice Map 2023<\/em>, OII Europe (May 15, 2024), https:\/\/www.oiieurope.org\/wp-content\/uploads\/2024\/05\/GPMAP2023_web_.pdf [https:\/\/perma.cc\/4JTY-YKVB]; Good Practice Map 2022<\/em>, OII Europe (May 11, 2023), https:\/\/www.oiieurope.org\/wp-content\/uploads\/2023\/05\/GPMap2022_web.pdf [https:\/\/perma.cc\/8TQD-4X9U].<\/p>\n [5]<\/a> See<\/em> Resolution on the Rights of Intersex People, 2020 O.J. (C 449) 142; Eur. Parl. Ass., Promoting the Human Rights of and Eliminating Discrimination Against Intersex People<\/em>, 69th Sess., Res. No. 2191 (2017).<\/p>\n [6]<\/a> See, e.g.<\/em>, Comment on Y v. France ECHR Decision<\/em>, OII Europe (Feb. 22, 2023), https:\/\/www.oiieurope.org\/comment-on-y-v-france-echr-decision\/ [https:\/\/perma.cc\/AVG9-BKAP].<\/p>\n [7]<\/a> See <\/em>M. v. France, App No. 42821\/18, \u00b6\u00b6 59\u201363 (Apr. 26, 2022), https:\/\/hudoc.echr.coe.int\/eng?i=001-217430.<\/p>\n [8]<\/a> Daniela Alaattino\u011flu, Intersex Interventions as Human Rights Violations<\/em>, 86 Mod. L. Rev. 1265, 1269 (2023).<\/p>\n [9]<\/a> Charly Derave & Hania Ouhnaoui, M. v. France: Recognising the Existence of Intersex Persons, but not (yet) Their Bodily Integrity<\/em>, Strasbourg Observers (Feb. 14, 2023), https:\/\/strasbourgobservers.com\/2023\/02\/14\/m-v-france-recognising-the-existence-of-intersex-persons-but-not-yet-their-bodily-integrity\/ [https:\/\/perma.cc\/22RV-ZGMJ].<\/p>\n [10]<\/a> Alaattino\u011flu, supra<\/em> note 8, at 1272.<\/p>\n [11]<\/a> See<\/em> Tsubasa Shinohara, Caster Semenya v. Switzerland: Eligibility of Intersex Female Athlete in Female Athletic Events, <\/em>Strasbourg Observers (Sept. 27, 2023), https:\/\/strasbourgobservers.com\/2023\/09\/27\/caster-semenya-v-switzerland-eligibility-of-intersex-female-athlete-in-female-athletic-events\/ [https:\/\/perma.cc\/W8MR-5V8L] (indicating as part of the holding that agencies \u201cdid not adequately consider significant concern about irreparable damage caused by hormonal medical treatment [for an intersex athlete] in light of the ECHR\u201d).<\/p>\n [12]<\/sup><\/a> Y. v. France, App. No. 76888\/17, \u00b6 77 (Jan. 31, 2023), https:\/\/hudoc.echr.coe.int\/eng?i=001-222780.<\/p>\n [13]<\/sup><\/a> Id.<\/em> \u00b6 78.<\/p>\n