| Applicant name | OH and GH |
| Applicant type | Natural person |
| Number of applicants | 2 |
| Country | Germany |
| Application no. | 53568/18 54741/18 |
| Date | 04/04/2023 |
| Judges | Gabriele Kucsko-Stadlmayer, présidente, Tim Eicke, Faris Vehabović, Branko Lubarda, Armen Harutyunyan, Anja Seibert-Fohr, Ana Maria Guerra Martins, |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | No violation |
| Reason | Positive olbiation |
| Type of privacy | Private life; relational privacy |
| Keywords | Transgender; recognition child under new gender |
| Facts of the case | The application concerns, under Articles 8 and 14 of the Convention, the refusal of the administrative authorities to register the first applicant (Mr O.H.) as the father of the second applicant (Mr G.H.) on the grounds that the first applicant gave birth to the second applicant and should therefore, despite the judicial recognition of his change of sex which took place before conception, be registered as the mother of the child, in accordance with the provisions of the civil code (“the CC”) and the law relating to the name and sex of transsexual persons (Transsexuallengesetz – “the TSG law”). |
| Analysis | As to the state’s margin of appreciation, the Court observes that there is no consensus among European States on the question of how to indicate, in the civil status registers concerning a child, that one of the persons having the status of parent is transgender. Only five member States of the Council of Europe have provided for a mention in these registers of the recognized sex. The Court underlines that the German authorities were called upon to balance several private and public interests and several divergent rights: firstly the rights of the first applicant; then, the fundamental rights and interests of the second applicant, that is to say his right to know his parentage, his right to receive care and education from both parents, as well as his interest in a stable attachment to his parents, rights and interests; finally, the public interest residing in the coherence of the legal order and in the accuracy and completeness of civil status registers, which have particular probative force. This circumstance also argues for the existence of a wide margin of appreciation. The Court notes in the present case that the divergence between the interests of the first applicant and those of the second applicant naturally emerged shortly after the birth of the child, when it was necessary to determine what information to record in the birth register, in other words at a time when the well-being of the second applicant could not be examined on an individual basis due to his young age. Furthermore, for the Federal Court of Justice, the interests of the second applicant merged to a certain extent with the general interest attached to the reliability and consistency of civil status, as well as legal certainty. To the extent that the applicants assert (paragraph 88 above) that the right of a child to know his or her parentage and the interest of public authorities in keeping track of the biological reality of childbirth by a transgender parent could be satisfied in a different way the Court recalls that the choice of measures appropriate to guarantee compliance with the Article 8 of the Convention in inter-individual relationships falls in principle within the margin of appreciation of the Contracting States. In this regard, there are different ways of ensuring respect for private life and the nature of the State’s obligation depends on the aspect of private life in question Therefore, having regard, on the one hand, to the fact that the filiation link between the applicants was not called into question in itself and to the limited number of situations which could lead, when a document was presented of birth of the second applicant, the revelation of the transgender identity of the first applicant and, secondly, the wide margin of appreciation available to the respondent State (paragraph 116 above), the Court considers that the German courts struck a fair balance between the rights of the first applicant, the interests of the second applicant, considerations relating to the welfare of the child and the public interests. |
| Other Article violation? | No violation 14 echr |
| Damage awarded | – |
| Documents | Judgment |