Should the State provide for the possibility of a “neuter sex” or “intersex” category on birth certificates? In a decree dated 31st January, the European Court of Human Rights (ECHR) responded in the negative. Their position is less “final” than it might at first seem.
Certain people – who could be termed “intersexual” exhibit at birth a certain “sexual ambiguity”, a malformation of the genital organs which makes it difficult immediately to draw up a birth certificate specifying boy or girl. The decision is deferred, to allow doctors to conduct further examinations. These situations, which are rare and complex, require a specific treatment, both medically and psychologically. They are difficult to endure for the families and sometimes, later, for the people concerned.
A sixty-year old born intersexual requested from the French justiciary to modify their civil state to register as “neuter sex”. This request, which was initially accepted, was subsequently rejected. By its rejection in 2017, the Court of Appeals, the highest jurisdiction, had stated that French law does not allow the registration, on birth certificates, of the indication of any sex other than male or female and that this binarism follows a legitimate purpose: it is necessary for social and legal purposes, of which it constitutes a fundamental element. Recognition by a judge of a third sexual category would have profound repercussions on the rules in French law established on the basis of the binarism of sexes and would involve numerous legal coordination modifications.
The applicant, claiming a violation of article 8 of the European Convention on Human Rights, then raised an appeal to the ECHR (European Court of Human Rights). The latter has also just rejected the appeal and decided not to constrain France to recognise a “neuter sex”. As far as the ECHR are concerned, “France has correctly considered both the general benefit and the benefit of the applicant: privacy must indeed be reconciled with other imperatives, in this case the unavailability of the state of persons (the legal principle under which individuals cannot freely choose the elements which enable their identification) and the need to preserve the consistency and security of birth certificates as well as the social and legal organisation of the French system” as explained by the “Juristes pour l’enfance” association (association for the protection of children’s rights).
But the “terms” used by the ECHR, the competences which it claims and its ever more transgressive decrees are far from reassuring.
Nicolas Hervieu, a lawyer specialising in European law has noted for example that it “scathingly contradicts the Court of Appeals, when stating that they were wrong in considering the masculine physical and social appearance of the applicant. The European organisation specifies that as an “element of privacy, a person’s identity cannot be reduced to the appearance of the person as seen by others”.
The ECHR further concluded that “in the absence of any European consensus on the subject, it is left up to the defending State to determine at which rate and up to which point to respond to the requests of intersexuals, such as the applicant, regarding birth certificates, duly taking into account the difficult situation in which they find themselves in relation to the right for the respect for privacy in particular due to the inadequacy between the legal framework and their biological reality”. Thus, it bases its decision on the absence of European consensus, which is not very solid and even less immutable. In the opinion of of of Aude Mirkovic, a Lawyer: “The ECHR is gradually elaborating the content of the text which it is tasked with enforcing: there is no separation of powers here, not to mention any democratic legitimacy of the self-appointed powers of the Court under the cover of “dynamic interpretation”, since its judges are not elected and have no mandate from the people to thus establish constraining rules for all the member States of the European Council. The European Court today leaves it up to France to decide on the birth certificate entries on the duality of the sexes. But for how long?”
This legal battle is hiding other ambitions. Not for the creation of new categories, but the actual disappearance of any distinction between the two sexes for the benefit of a concept which is as implausible as it is impossible: that of “self-determination”.
“Our final objective, as a movement, is indeed the total repeal of sexual categories on any identity documents, not the lasting creation of a third sex category on birth certificates”, as explained for some time by a militant group.
The Orleans Appeals Court rejects a request for the “neuter sex” on birth certificates, 1st April 2016.
“Neuter” sex?” The Appeals Court says no, 5th May 2017.