OPINIONS AND RECOMMENDATIONS OF THE FRENCH CGLPL
These findings therefore raise the issue of management of transsexual
prisoners.
1. Definition of transsexualism
The European Court of Human Rights defines transsexualism as being
a term “applied to those who, whilst belonging physically to one sex,
feel convinced that they belong to the other” and who “often seek to
achieve a more integrated, unambiguous identity by undergoing medical
treatment and surgical operations to adapt their physical characteristics
to their psychological nature” (ECtHR, 17th October 1986, Rees v. United
Kingdom, Series A n°106).
The international classification of diseases (ICD-10) describes
transsexualism as the “desire to live and be accepted as a member of
the opposite sex, usually accompanied by a sense of discomfort with, or
inappropriateness of, one's anatomic sex, and a wish to have surgery
and hormonal treatment to make one's body as congruent as possible
with one's preferred sex”.
2. The rights protected
The right to personal development
Article 8 of the European Convention on Human Rights provides that
“everyone has the right to respect for his private and family life… There
shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others”.
According to the European Court of Human Rights, in France “no legal
formality or authorisation is required for hormone treatment or surgery
intended to give transsexuals the external features of the sex they wish
to have acknowledged” (ECtHR, 25th March 1992, B. v. France, Series A,
n°232-C). In this same judgment, the Court holds that the refusal to
rectify civil status documents violates Article 8 of the Convention
because in this case, even having regard to the State’s margin of
appreciation, “the fair balance which has to be struck between the
general interest and the interests of the individual has not been attained”.
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