| Applicant name | AH and others |
| Applicant type | Natural person |
| Number of applicants | 3 |
| Country | Germany |
| Application no. | 7246/20 |
| 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 obligation |
| Type of privacy | Identity; relational privacy |
| Keywords | Trangender; recognition child new gender; margin of appreciation |
| Facts of the case | The application concerns, under Articles 8 and 14 of the Convention, the refusal of the civil status authorities to register the first applicant as the applicant’s mother, on the grounds that she had not given birth to the latter, who had been conceived with his male gametes, and that, in accordance with the provisions of the Civil Code and the law relating to the name and sex of transsexual persons (Transsexuallengesetz – “the TSG law”), she therefore had to be entered in the birth register as the child’s father, despite the judicial recognition of her sex change which took place before the child was conceived. |
| Analysis | 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 States have provided for the possibility of including in these registers a mention of the recognized sex, while the majority of States continue to designate the person who gave birth to a child as the child’s mother and to allow the person who contributed to fertilization with his sperm to recognize his paternity with regard to the child. The Court also notes that the German authorities were called upon to balance several private and public interests and several divergent rights: first of all, the rights of the applicants; then, the fundamental rights and interests of the applicant, that is to say his right to know his parentage as well as his interest in being attached in a stable manner 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. Consequently, the Court considers that the German authorities had a wide margin of appreciation in this case. In so far as the applicants argue that the right of a child to know their parentage and the interest of public authorities in keeping track of the biological reality of fertilization by a transgender parent could be satisfied by the registration of two mothers in the birth register, the Court recalls that the choice of measures to guarantee compliance with Article 8 of the Convention in inter-individual relationships falls in principle within the margin of appreciation of the Contracting States. The existing system, according to the Court, is likely to reduce the inconvenience to which the first applicant, in particular, could be exposed by finding herself forced to prove her status as a parent to her son if she were to be registered in the birth register as father. It further notes that the applicants did not claim that they often had to present a complete birth certificate of the applicant during administrative procedures, nor that an abbreviated version of the certificate or another document was insufficient for the administrations. and establishments concerned, some of which generally already have knowledge of the transgender nature of a person or are required to keep this information confidential. Therefore, having regard, on the one hand, to the fact that the parentage link between the first applicant and the applicant was not called into question in itself and to the limited number of situations which could lead, during the presentation of the applicant’s birth certificate, to the revelation of the first applicant’s transgender identity, if she was registered as the applicant’s father in the birth register, and, secondly, to the margin of broad assessment available to the respondent State, the Court considers that the German courts struck a fair balance between the rights of the applicants, the interests of the applicant, considerations relating to the well-being of the child and public interests. |
| Other Article violation? | No violation 14 ECHR |
| Damage awarded | – |
| Documents | Judgment |