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Strasbourg Court: state can refuse to recognize man as mother and woman as father

Published: 12.04.2023

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· The European Court of Human Rights in Strasbourg has dismissed complaints against decisions by German civil registry offices that refused to enter information on birth certificates that did not conform to the biological sex of two people.

· The first case involved a woman who changed her metric sex from female to male on her documents and began hormone therapy. After stopping the therapy, she gave birth to a child conceived through in vitro fertilization.

· The mother demanded to be listed on the child's birth certificate as the father, which the registry office refused to do.

· The woman filed a complaint with the Strasbourg Court, claiming that the refusal to recognize her as the child's father constituted torture and a violation of her right to privacy.

· Separately from her, a similar complaint was filed by the father of another child who had his metric sex changed on his documents from male to female. The man was denied entry on the birth certificate as the mother.

· The Ordo Iuris Institute intervened in both cases, submitting a "friend of the court" opinion arguing that being a father or mother is a biological fact, not a matter of personal preference.

· The Strasbourg Court dismissed both complaints, pointing out that states have the right to protect the reliability of civil status registers by capturing the actual, biological sex of a child's parent.

The first case involved a woman who changed her metric sex from female to male in 2011 in documents and civil status registers. At that time she also began taking testosterone to make herself look like a man. In 2012, she discontinued her hormone therapy and underwent in vitro fertilization, and in 2013 gave birth to a child. She then applied to the registry office to register her as the father of the child. However, the USC registered her as the mother. In 2018, the woman, on behalf of herself and her child, filed a complaint with the ECHR, alleging violations of Article 8 (right to respect for private and family life), Article 14 in conjunction with Article 8 (prohibition of discrimination based on the right to respect for private and family life) and Article 3 (prohibition of torture) of the European Convention on Human Rights.

The second case involved a man who changed his metric sex in 2012 in documents and the civil registry from male to female. In 2015, his common-law wife gave birth to a child conceived through in vitro fertilization using the aforementioned man's sperm. In the same year, the two entered into a civil union and applied to the registry office to register them both as the child's mother. The USC registered the woman who gave birth to the child as the mother, while the man was registered as the father. In their complaint, the parents raised allegations of violations of Article 8 and Article 14 of the Convention. Like the applicant in the previous case, they pointed to the "fundamental contradiction" of the USC's decision with "their perception of their relationship with the child."

The Ordo Iuris Institute submitted an "amicus curiae" opinion to the Court in both cases, in which it noted that the essence of the problem lies in the way the mother is defined in the law. If the law defines a mother as a woman who has given birth to a child (which is a simple recognition of an obvious biological fact), then the natural consequence of adopting such a definition is that it is inadmissible to register as a father a woman who has given birth to a child, even if she considers herself a man. The European Convention on Human Rights does not grant a biological mother "the right to be called a father" or a biological father "the right to be called a mother."

In 2023. European Court of Human Rights dismissed both complaints, stating that states have a wide margin of discretion in the way they maintain civil status records. Stating the biological sex of the parents on birth certificates serves to protect the credibility of civil status registers, as well as the right of children to know their identity.

- Recent rulings by the European Court of Human Rights are correct, as they remind us of the basic function of civil status records, which is to collect information on objective characteristics of citizens, such as gender. However, the Court left a wicket for questioning this function, noting that its verdict was largely a consequence of the lack of consensus among European countries on how to name transgender people in civil status records. This suggests that if, in the future, just over half of the Council of Europe's member states adopt regulations allowing transgender mothers to title themselves "fathers" and vice versa, the Court may change its position on the issue, said Weronika Przebierała, director of the International Law Center of the Ordo Iuris Institute.

The case of O.H. and G.H. v. Germany and the case of A. H. and others v. Germany, ECHR judgments of April 4, 2023.

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