Briefly Noted

Extract

On July 6, 2021, the Third Section of the European Court of Human Rights issued its judgment in the above case concerning a trans woman's Article 8 right to family life and Article 14 right to non-discrimination on gender identity grounds. The Applicant (divorced) in the case was prevented from seeing her children by their biological mother on the grounds that her gender transition had caused irreparable harm to the mental health and morals of the children. During the dispute, an “expert report” had confirmed the Applicant's diagnosis of “transsexualism,” noting the applicant's “principled inability to preserve a male appearance” and her “insufficient consideration […] of the age-related specificities of the children's development,” and that report was relied upon by a district court in Moscow to prevent the Applicant from seeing her children. After several other unsuccessful appeals, the Applicant brought the case to the ECtHR, arguing under Article 8 that the restriction of her parental rights had not been necessary in a democratic society and was therefore a violation of her right to respect for family life. In reviewing the domestic courts' decisions, the Court criticized their reliance on the expert report, in particular its failure to actually explain how the Applicant's gender transition represented a risk to her children. According to the Court, this was even more concerning given that the report itself acknowledged that there is no real scientific evidence on this issue. Moreover, available international material “is unanimous that domestic courts deciding on the restriction of parental rights and contact should aim to (1) keep children together with their parents and, in the event of their separation, maintain direct contact between them on a regular basis, (2) take the child's best interests as a primary consideration, and (3) assess the entire family situation through close and individualised scrutiny.” The Court concluded that the domestic courts had failed to consider the Applicant's specific family situation and that a complete deprivation of parental rights should be reserved for only the most extreme circumstances, which were not present in this case. Therefore, the Court found a violation of Article 8.