Lebanese Judicial Ruling: Respecting the Right to Sex Change
With the Lebanese legislature refraining from passing a law concerning the situations of transgender individuals, these individuals have persisted in enriching the judicial opinions of the Lebanese courts. The most recent decision on this front was issued by Beirut’s civil Court of Appeal on September 3, 2015 (ruling 1123/2015). Its profound significance lies in the fact that it is apparently the first time an appeals court has issued a decision on this particular matter. What distinguishes the ruling is the justification it lays out regarding the possibility of amending a person’s sex so that it conforms with their psychological, emotional, and behavioral situation, as will be discussed below.
The Court of Appeal considered a request to change the petitioner’s recorded gender from “female” to “male”, when the petitioner challenged the ruling [on the same subject] issued by a magistrate in Beirut on December 12, 2014. The magistrate’s response was that it was not possible to comply with the change request because of the discrepancy that had arisen between personal status records and the reality of the individual’s status; this was the result [according to the magistrate] of the individual’s personal decision. The magistrate held that “hormonal, psychological, and surgical treatments, such as the surgical operation the petitioner had undergone after seeking it out and pursuing it, was not, on a fundamental level, intended to correct a natural defect, or a case of ambiguity, or intersex status that the petitioner had been suffering from. Rather, all of these treatments and surgical operations were the cause of the new [gender] status”.
In its ruling on the subject, however, the Court of Appeal took the opposite stance: a stance adopted by the majority of magistrates who oversee personal status cases in their rulings on this particular matter. The basis of this position is, firstly, the view that a discrepancy between a reality arising from medical necessity and personal status records can be considered a correctable error, and secondly, an individual’s right to respect for their private life.
A Discrepancy Between Social Fact and Gender Identity is a Correctable Error
The Court of Appeal considered its decision in light of medical expertise highlighted in the case file stating that the sex change of the petitioner, by way of hormonal treatment and surgical procedures, was a necessary medical action “to treat and remedy” the petitioner due to “the hardship that had accompanied [him] throughout [his] life”, as a result of having “gender dysphoria since [his] childhood, and that there was no indication that [he] had brought this disorder upon himself by any willful action”. This expertise thereby refuted the initial decision, which had deemed the new [gender] status to be the result of an individual desire.
The Court of Appeal went even further by affirming that “a person’s right to seek necessary treatment when they suffer from physical or psychological ailments is a basic and natural right, and nobody may be deprived of it”. In this light, it appeared that the resulting sex change of the individual in question was the natural outcome of the exercise of a natural right –the right to treatment of a psychological illness– and should therefore be respected. The court added that according to Article 21 of Ordinance 8837 of 1932, correcting errors in the population registry is not restricted to a material misstatement of fact, but included [situations of] altered circumstances. This is what we understand from the phrase, included in the ruling, that effectively requires an “amendment to the registry in order to bring it into conformity with reality”.
What the Court of Appeal arrived at was a means to confront the law in order to construct a complex individual identity. The aim of personal status registers is to identify the individual. While this identification was once a straightforward matter, based on standards determined by nature and predetermined, with given criteria –in the case of gender, biological and objective facts– the law has entered a zone of ambiguity and confusion as the result of requests that have been made asking that other criteria be taken into account. These new criteria are based upon an emphasis on how individuals view themselves, their behavior in society, and the way that society views them. Given the law’s difficulties in attempting to distinguish between objective and subjective forms of identity, it was inevitable that “the actual personal statuses” would be instituted, which would be characterized as non-conforming and malleable. This is not limited to biological status determined at the time of a person’s birth, but would extend to include the development of a person’s psychological and behavioral situation in its various complexities.
The next question to arise concerns the extent to which such subjective identities can be instituted without adopting some form of objective standards. In other words, is it possible for personal status records to enshrine subjective identities independently of their conformity with any objective, biological standards at all? Particularly in the case of sex and gender, is it possible to institutionalize a gender category that differs from a person’s given gender at birth in the absence of [some form of] hormonal treatment or surgical procedure leading to a new psychological and behavioral reality? If not, then what degree of medical treatment is necessary for a person’s gender to be changed? Is hormonal treatment sufficient, or is a surgical operation enough by itself? Or must a person establish that they have undergone a surgical operation leading to the removal of reproductive and sexual organs they had at birth, and replaced them with new reproductive organs, in order to be recognized?
These are the contexts of prevailing debates at the international level, which have garnered varying responses from different countries. For example, Argentina has enshrined the concept of “gender identity”, which is defined as an internally determined, individual manner through which individuals envisage their gender. This might correspond to the gender assigned at birth but also may differ from it, if the outer form of the body or its functions are altered through surgery or other elective means. It can also encompass various expressions of gender such as clothing, or a person’s manner of speech or gestures. Enshrining this concept opened the doors to the possibility of changing an individual’s registered gender upon presenting their request to the administrative authorities, without the condition that they be subjected to any psychological or hormonal treatment, or surgical procedures of any kind. This progressive position could lead to the recognition of an individual’s right to respect for gender identity.
In Finland, an individual requesting a sex change must undergo a specialized surgical operation or establish that they are unable to reproduce. On the other hand, countries like Spain and the United States adopt a middle ground which requires an individual to undergo medical treatment, but does not require this treatment to include a surgical operation. On this front, it is worth pointing out the general trend in various European countries towards eliminating conditions that would require a person to undergo surgical operations or hormonal therapies that would eliminate their ability to have children.
So what will the position of the Lebanese judiciary be on these questions? The ruling issued by the Court of Appeal does not mention any conditions that must be met, except to highlight the lack of “any possibility that the petitioner would revert to his previous gender”, which is a standard that French courts uphold to this day. It seems to us that requiring a person to undergo hormonal or surgical treatments is only justified if a state is adhering to an objective model of identity. Yet, it has been established that this model does not apply in cases wherein identity involves multiple considerations that cannot be confined to a category determined by the changing facts of nature.
The Individual’s Right to Respect for Private Life
In annulling the magistrate’s ruling, the Court of Appeal did not merely address the disparity between actual, lived personal status and personal status records; it also justified its decision in terms of a person’s right to respect for private life. It explained that the refusal to recognize a new form of personal status constituted, according to the court, “an unwarranted breach of privacy of her personal life and basic freedoms”. This conclusion was reached after it was pointed out that the discrepancy mentioned before was exposed whenever the petitioner enacted “administrative, legal, and other interactions that required showing official documents that differed in appearance from his actual identity”.
In the absence of a domestic law enshrining an individual’s right to a private life, yet seeking to justify a protectionist stance towards such a law, the Court of Appeal relied upon Article 17 of the International Covenant on Civil and Political Rights, which Lebanon has ratified. This article guarantees every person the right to the protection of their privacy and the right to protection from interference with that privacy. Interestingly, the ruling also quoted the position taken by the European Court of Human Rights, and two cases in particular (Goodwin v. the United Kingdom, July 11, 2002 and B. v. France, March 25, 1992) in stating that “not accepting a request to amend [a person’s] gender in the personal status records following a sex change by a transexual person constitutes a violation of the statutes of Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to respect for private life”.
What are the boundaries of this right? Does it include “individual autonomy”, a concept promoted by the European Court of Human Rights, which recognizes an individual’s right to make decisions regarding their private affairs as they deem appropriate, and separately from the moral or religious values imposed by society? Will the enshrining of this right pave the way for [genderqueer] individuals regarding, for example, the recognition of their marriages to individuals who belong to a different gender category than the one assigned to them at birth? These questions have yet to be answered by the Lebanese judiciary.
 See: Youmna Makhlouf’s, “The Judiciary a Basis for Interpretation: For Genderqueer Persons to Amend the Record of their Sex in the Population Registry”, The Legal Agenda, Issue No. 1, September 2011.
 See: François Vialla, “Prolégomènes sur l'approche juridique de la transidentité”, Droit de la famille n° 5, Mai 2013, Dossier 13.
 The Gender Identity Law of Argentina, voted on by the Senate on May 8, 2012; see: https://globaltransaction.files.wordpress.com/2012/05/argentina-gender-identity-law.pdf; and, see: Marie Lamarche, ”L'Argentine, laboratoire d'expériences législatives en droit des personnes? propos de l'autonomie en matière d'identité sexuelle et de mort”, Droit de la famille n° 7-8, Juillet 2012, alerte 37.
 Article 4 of the Argentine Law.
 Articles 3 and 4 of the Argentine Law.
 Article 1 of the Argentine Law.
 Article 1 of the Finnish Law, Act on the Confirmation of Gender of a Transsexual, June 28, 2002/563; see: http://trasek.fi/wp-content/uploads/2011/03/TransAct2003.pdf.
 See: Marie Lamarche, “Le transsexualisme en Espagne: loi du 15 mars 2007 sur l'identité de genre”, Droit de la famille n° 5, Mai 2007, Alerte 45.
 The UK Law, the Gender Recognition Act of 2004; see: http://www.legislation.gov.uk/ukpga/2004/7/pdfs/ukpga_20040007_en.pdf.
 Irish Law, Gender Recognition Act No. 25/2015, and the report published by the Open Society Foundations, “License to be Yourself”, found at http://www.wpath.org/uploaded_files/140/files/license-to-be-yourself-20140501.pdf. See: Philippe Reigné, “La Cour de cassation et le changement d'état civil des personnes transidentitaires”, Droit de la famille n° 9, Septembre 2012, Comm. 131.