France, Rennes Court of Appeal, Case No. 11/08743, 1453, 12/00535, 16 October 2012
Divorce requirement not necessary for gender recognition
The two petitioners had been married for thirteen years and had three children. One of them came out as a trans woman during marriage and sought to have her gender identity officially registered. However, the authorities denied her request as long as she and her wife continued to be married. In its judgment, the Court of Appeal clarified that since “the husband became a woman in a definitive and legitimate way,” denying her official recognition would be in breach of the right to respect for private life (Art. 8 ECHR). Accordingly, the Court ordered that the necessary changes be made in her birth certificate.
On the question of the petitioners’ marriage, the Court noted that their decision to continue their life together pertained to their private life, which it had no reason to interfere with. The Court specified that the validity of the marriage had to be measured by reference to the time of its conclusion. As it originally involved a man and a woman, the marriage was valid. At the same time, making a note in the marriage certificate regarding the change of gender by one of the spouses would be contrary to the public order, as that would turn their relationship into a de facto same sex marriage. However, rectifying the marriage certificate was not necessary, as the trans spouse’s birth certificate already stated that she was married. The Court also denied the request to adapt the children’s birth certificates as “not necessary”, since this would breach the presumptions regarding their filiation to a mother and father respectively.