An Improved Protection for the (Mentally Ill) Trans Parent: A Queer Reading of AP, Garçon and Nicot v France

DOIhttp://doi.org/10.1111/1468-2230.12344
Published date01 May 2018
Date01 May 2018
an uncertain status when compared with the unambiguous language of the
ECHR. This is a fair criticism. In the end, however, we must remember that
the common law’s fecundity is not solely a matter of judicial preference. The
common law is also moved by the arguments that are put to the courts. In this
sense, courts are reactive deliberative actors. As Allan has argued, the common
law constitution is constituted by internal ‘interpretative’ argument.99 Each of
us must engage in moral and political argument to determine the contours of
constitutional principles and fundamental rights, to constr uct the law that we
have in common. It is thus a shared and discursive undertaking. It is now time
for workers to reclaim the common law as their own. UNISON represents a
remarkable opportunity for workers, trade unions and their legal advisers to
put the common law constitution to work, guided by the needs of the labour
movement and working people.
An Improved Protection for the (Mentally Ill) Trans
Parent: A Queer Reading of AP, Garc¸on and Nicot v
France
Damian A. Gonzalez-Salzberg
The European Court of Human Rights has been deciding cases concerning LGBT rights since
the early 1980s. Its case law on trans rights has changed drastically over time, imposing upon
the states of the Council of Europe certain minimum standards regarding the legal recognition
of gender identity. In its recent judgment of April 2017 the Court laid down a new rule to be
adopted by domestic legislation; namely, that the legal recognition of gender transition cannot
be made conditional upon pursuing medical or surgical procedures which have (or are likely to
have) sterilising effects. This article analyses the judgment from a critical perspective grounded
in queer theory, noting both the positive and the negative elements of the Court’s decision.
INTRODUCTION
On 6 April 2017 the European Court of Human Rights (the Court) delivered
its judgment in AP, Garc¸on and Nicot vFrance1(AP, Garc¸on and Nicot). This is
the most recent judgment in a series of cases concerning trans rights decided
99 Allan n 27 above, 333-349.
Lecturer in Law, University of Sheffield. I am grateful to my friend and colleague Dr Yin Harn Lee
and to the anonymous reviewer for their very helpful comments on an earlier draft.
1AP, Garc¸on and Nicot vFrance ECtHR 6 April 2017. Within this piece, I follow Stephen Whittle’s
use of the term ‘trans’, as an umbrella term to refer to any person who does not perceive their
gender identity as the same as was socially expected for them to perceive following gender
classification at birth. Conversely, if I use the term ‘transgender’ or ‘transsexual’ I follow the term
used in the specific case to which the reference is made. See: S. Whittle, Respect and Equality:
Transsexual and Transgender Rights (London: Cavendish, 2002) xxii-xxiii.
526 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(3) MLR 526–538

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