MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-8

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-8 A.D. and Others v. Georgia (Application No. 57864/17) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2023)1042

 

Application	Case	Judgment of	Final on	Indicator for the classification
57864/17	A.D. AND OTHERS	01/12/2022	01/03/2023	Complex problem

·  Cooperation Project: VC 3589 - Enhancing Equality and Non-Discrimination in Georgia

Case description

The case concerns a violation of the applicants’ right to respect for private life on account of the State’s failure to provide quick, transparent and accessible procedures for legal gender recognition (violation of Article 8).

The Court noted that, not only had the Georgian legislator clearly enshrined a right to have one’s sex marker changed in civil-status records in law, but it had also been interpreted to form part of the relevant constitutional right to free development of personality under Article 12 of the Constitution (§72). However, the imprecision of the current legislation undermined, in its turn, the availability of legal gender recognition in practice and, left the gatekeepers – the competent domestic authorities – with excessive discretionary powers, which could lead to arbitrary decisions in the examination of applications for legal gender recognition (§76).

Status of execution

The authorities submitted an action plan (DH-DD(2023)1042) on 8 August 2023.

Two Rule 9 communications were submitted by three NGOs[1] who are at the same time applicants’ representatives in April (DH-DD(2023)475) and October 2023 (DH-DD(2023)1299). Two more communications were received from six NGOs in August 2024 (DH-DD(2024)910[2] and DH-DD(2024)911[3]). 

Individual measures 

The just satisfaction was paid to the applicants, as awarded by the Court.  

According to the applicants’ representatives, on 6 July 2023, the first applicant applied to the Public Service Development Agency (Agency) to change his gender marker. The request was refused. The Tbilisi Bureau of the Agency noted that the applicant had failed to produce a certificate which would affirmatively state that “with anatomical structure, he is male”. The applicant appealed this decision.

The second applicant who is residing in Belgium, successfully obtained legal gender recognition in Belgium.

The third applicant has not made further applications to the Agency for legal gender recognition due to previous refusals. He stated that he had lost confidence in achieving a positive outcome.

General measures 

a)     Measures reported by the authorities in August 2023

The authorities underlined that they were studying the legislation and best practices of other States regarding legal gender recognition, analysing the Court’s case law where a similar violation has been established, the measures taken by States and the assessments made by the Committee of Ministers. They further noted that the execution of the present case was discussed with the Department for the Execution of the Court’s judgments in Tbilisi in June 2023 and that the authorities are engaged in consultations with the Department. The authorities also expressed their readiness to further explore avenues for cooperation in this process and to use the Council of Europe’s expertise.

The judgment was translated into Georgian and published in the Official Gazette.

b)     Recent legislative initiatives on “Protecting Family Values and Minors”

In April 2024 a draft Constitutional Law on “Protecting Family Values and Minors” was initiated by members of the parliamentary majority. Its provisions prohibit any medical intervention aimed at changing sex characteristics and envisage that, in compliance with genetic data, either “male” or “female” sex shall be indicated in the official documents issued by authorities. They further stipulate that any decision of a public authority or a private person that directly or indirectly restricts the use of concepts defined by “biological sex” is invalid. The draft also prohibits public assemblies, distribution of production, programme or any other material promoting same-sex families or intimate relationships, incest, adoption or foster care of minors by same-sex couples or non-heterosexual individuals, medical interventions related to sex change, or the non-use of concepts defined by “biological sex”. The same restrictions apply to providing information during the education process in public or private institutions. In June 2024 a package of legislative amendments with similar content was introduced in Parliament. These amendments additionally envisage that non-respect of the above prohibitions would entail administrative and criminal sanctions and that any labour obligations that disregard “biological sex” would be annulled. This legislative package was subsequently adopted by Parliament in the third and final reading on 17 September 2024.

On 27 March 2024 the Council of Europe Commissioner for Human Rights expressed concern over the constitutional initiative,[4] noting that it is capable of having a strong, negative impact on the human rights, safety and well-being of LGBTI people and defenders of their rights.

 

In an opinion[5] adopted in June 2024 the Venice Commission concluded that the provisions of the draft Constitutional Law are not compliant with European and international standards, notably with the provisions of the European Convention on Human Rights and the Court’s case-law, and the mere proposal of adopting this text risks (further) fuelling a hostile and stigmatising atmosphere against LGBTI people in Georgia. The Venice Commission thus recommended the authorities to reconsider this legislative proposal entirely, and not proceed with its adoption.

On 10 September 2024 the Council of Europe Commissioner for Human Rights published a letter sent to the Chairman of the Parliament of Georgia in which he asks members of the Parliament to refrain from adopting the draft law on “Protecting Family Values and Minors” passed in second reading on 4 September 2024.[6]

a)     Communications submitted to the Committee under Rule 9

In their communication of October 2023 NGOs indicated that although there had been some earlier positive developments in the domestic case law,[7] after the Court’s judgments, similarly to the first applicant, three transgender people’s applications to have their gender marker changed were refused due to the absence of “a certificate of biological gender change”. NGOs underlined that the practice of making gender reassignment surgery a prerequisite for legal gender recognition contradicts the Convention and the case law of the European Court. They further complained about the authorities’ continued inaction as regards the development of the legislation defining clear legal gender recognition procedures. Referring among others to the Public Defender’s report, NGOs pinpointed various problems related to discrimination faced by transgender people without legal gender recognition in all spheres of life, including employment, housing and social protection. In July 2023 civil society communicated their viewpoints to the government to include the issues related to legal gender recognition in the Human Rights Action Plan and asked them to involve local and international experts in the process of the policy development.

In their communications of August 2024 all six NGOs expressed grave concern about constitutional and legislative amendments initiated in spring 2024, imposing a complete legal ban on any form of gender reassignment surgery or legal gender recognition. NGOs stress that the adoption of these amendments would result in serious deterioration of already problematic human rights situation of transgender people in Georgia.

Analysis of the Secretariat

Individual measures 

It is a matter of regret that no steps have been taken so far to resolve the individual situation of the first and third applicants in conformity with the obligations emanating from the European Court’s judgment. The continued distressing uncertainty vis-à-vis their private lives and vulnerability the applicants are facing, as a result of the authorities’ repeated refusals to register the change of the gender marker in their documents, should be urgently brought to an end.

It is recalled that the absence of a clear procedure for legal gender recognition in the legislation does not absolve the authorities from the obligation to ensure restitutio in integrum for the applicants. Indeed, such individual measures have been adopted by other member States in similar cases, even pending the development of new legislation.[8] Moreover, it appears that, relying on the interpretation of the Constitutional Court[9] and the European Court’s judgment in the present case, the Supreme Court of Georgia[10] has already established a precedent whereby it acknowledged the legal gender recognition decision made by a foreign country and ordered registration of these changes in the birth certificate by the Georgian authorities.

The Committee might wish to call upon the authorities to take the necessary measures, without delay, to ensure that the change of the applicants’ gender marker can be registered in their official documents.

General measures 

The European Court has clearly established in its case-law on legal gender recognition, that the member States’ positive obligation under Article 8 of the Convention entails provision of quick, transparent and accessible procedures for changing the registered sex marker of transgender people.[11]

In the present judgment the Court noted that despite the existence of an enforceable right under Georgian law to have one’s “sex marker” changed in civil-status records, not a single case of successful legal gender recognition had been reported. The imprecision of the legislation undermined the availability of legal gender recognition in practice and left the domestic authorities with excessive discretionary powers, which could lead to arbitrary decisions.

The Court established that such a situation was fundamentally at odds with the State’s positive obligation to provide quick, transparent and accessible procedures for legal gender recognition.

The execution of this judgment therefore implies that a clear legal framework is put in place regulating the conditions and the procedure for legal gender recognition, in line with the Convention and the European Court’s case law.

It is a matter of deep concern that instead of putting in place the required clear legal framework, the authorities have initiated draft constitutional law and adopted legislative package which would restrict the rights of transgender people. In particular, the enactment of these amendments would mean that legal gender recognition is not only unavailable due to the lack of a clear procedure, as at the time of the judgment, but would go further and introduce a complete legislative ban. This would be clearly contradictory to the European Court’s case law and in particular, its findings in the present judgment.

Thus, the enactment of the legislation in question would constitute not only a rollback on the current legal framework but would raise serious questions as to Georgia’s compliance with its obligation to abide by the final judgments of the Court. The Committee might therefore wish to strongly urge the authorities not to enact the adopted legislation and not to take any further steps that would undermine the full implementation of the Court’s judgment.

The authorities should take the requisite measures to ensure that clear and foreseeable legal provisions are in place regulating the conditions and procedures for legal recognition of gender identity in compliance with the Convention and the European Court’s case law, and bearing in mind the Committee of Ministers’ Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, and the Parliamentary Assembly Resolution 2048 (2015) on discrimination against transgender people in Europe.

In the meantime, further efforts should be made to counter, so far as possible, the adverse consequences of legislative gaps by streamlining domestic administrative and judicial practice. The Committee might wish to encourage the authorities to take active capacity-building action targeting competent administrative and judicial bodies with a view to incorporating the relevant Convention standards in their practice pending the adoption of the requisite legislation. Again, as referred to above, the authorities could draw inspiration from positive practices developed within other member States.[12]

In their action plan of August 2023, the authorities committed to take into consideration the best practices of other member States in the execution of similar judgments and expressed their readiness to use Council of Europe expertise. The Committee might wish to invite the authorities to make use of the cooperation activities and expertise available in the framework of the Council of Europe Project “Enhancing Equality and Non-Discrimination in Georgia” and the Sexual Orientation and Gender Identity Unit, while working on the requisite measures to address the legislative gaps identified by the Court. It is further essential that the active involvement of the domestic civil society and community organisations is ensured in the development and implementation of the relevant legislative framework and policies.  

Financing assured: YES