© Nova univerza, 2018 DIGNIT AS Revija za človekove pravice Slovenian journal of human rights ISSN 1408-9653 Gender Transgression as a European Value? The Role of the Court in Recognizing Human Rights Damir Banović Article information: To cite this document: Banović, D. (2016). Gender Transgression as a European Value? The Role of the Court in Recognizing Human Rights, Dignitas, št. 69/70, str. 49-72. Permanent link to this doument: https://doi.org/ 10.31601/dgnt/69/70-4 Created on: 16. 06. 2019 To copy this document: publishing@nova-uni.si For Authors: Please visit http://revije.nova-uni.si/ or contact Editors-in-Chief on publishing@nova-uni.si for more information. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. 49 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... Gender Transgression as a European Value? The Role of the Court in Recognizing Human Rights Damir Banović 1 ABSTRACT The paper examines gender transgression as a European val- ue, as part of human dignity and individual human rights within the scope of the Council of Europe and the European Court of Human Rights. The paper also examines (1) Human dignity as an intrinsic value of an individual person; (2) Legal doctrine, le- gal arguments and legal interpretation as the means for applying certain concepts of human dignity; (3) Gender transgression and the right to self-determination as (part of) human dignity; (4) The role of the European Court of Human Rights in recognizing the right to gender transgression by applying different interpretative methods. Key words: human dignity, gender transgression, evolutive in- terpretation, the European Court for Human Rights Spolna transgresija kot evropska vrednota? Vloga Evropskega sodišča za človekove pravice pri priznavanju pravic Po VzETEk Članek obravnava transgresijo spolov kot evropsko vrednoto, kot del človekovega dostojanstva in individualnih človekovih pravic v okviru Sveta Evrope in Evropskega sodišča za človekove 1 LL.M, Faculty of Law (University of Sarajevo). 50 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic pravice. Članek obravnava tudi: (1) Človekovo dostojanstvo kot resnično vrednoto posamezne osebe; (2) Pravno doktrino, pravne argumente in pravno razlago kot sredstvo za uporabo določenega pojma človekovega dostojanstva; (3) Transgresijo spola in pravi- co do samoodločbe kot (dela) človekovega dostojanstva; (4) Vlo- go Evropskega sodišča za človekove pravice, ki priznava pravico do transgresije spolov z uporabo različnih načinov pravne inter- pretacije. Ključne besede: človeško dostojanstvo, transgresija spolov, ra- zvojna razlaga Evropskega sodišče za človekove pravice 1. on human dignity in legal philosophy and law; Right to individual self-determination The status that human dignity has in contemporary legal doc- uments undoubtedly testifies about the importance assigned to this idea. Human dignity is present in a large number of contem- porary constitutions, international declarations, and conventions, and in many it is given special significance. In addition, human dignity has a rich philosophical history that goes back to ancient times and has not been forgotten 2 . Dignity is admittedly an ethe- real concept, which can mean different things and therefore suf- fers from an inherent vagueness at its core. 3 Since human dignity is a capacious concept, it is difficult to determine precisely what it means outside the context of a factual setting 4 . Human dignity has carried an enormous amount of content, but different content to different people. The basis of dignity can be said to lay in the au- tonomy of self, a self-worth that is reflected in every human being’s right to individual self-determination 5 . one of the key elements of twenty-first century democracies is the primary importance they assign to the protection of human rights. From this perspective, dignity is expression of a basic value accepted in a broad sense by all people 6 . It is a certain fundamental value to the notion of hu- 2 D. Franeta, Ljudsko dostojanstvo između pravnodogmatičnih i filozofskih zahtjeva, Filozofska istra- živanja, (2011), no. 4, pp. 825-842. 3 R. D. Glensey, The Right to Dignity, Columbia Human Right Law Review, (2011), no. 1, pp. 65-142. 4 E. Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, Utah LR, (1997), no. 1, pp. 963-1056. 5 R. D. Glensey (fn. 2). 6 Ibid. 51 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... man dignity which someone would consider a pivotal right deep- ly rooted in any notion of justice, fairness, and a society based on basic rights; it is a constitutional value, a fundamental right 7 ; it is a value that informs the interpretation of many, possibly all, other rights; 8 it is the basic theory underlying the (Canadian) Charter. 9 Human dignity is a basic human right, a fundamental human right; criterion for setting the limits between the state and the in- dividual; individual and groups; and between individuals them- selves 10 ; an interpretative argument for the regional and national judiciary bodies; political instrument for government to pursue executive actions, to formulate and impose norms and rules. But because of these capacities, the notion of human dignity can easily turn into its contradiction; into a Trojan horse – a benign exterior masking a horrific interior. To avoid uncertainties of meaning, the answer must lie in the ability to build a plausible legal theory that would translate the idea of the right to dignity into consistent jurisprudence 11 . Although the concept of human dignity in legal documents has a prominent significance, it seems that it is far less clear what in legal and dogmatic terms (but also philosophical) the dignity of a human being encompasses and what should be understood by it 12 . That is where the discomfort arises as today a sublime con- cept may be invoked for all sorts of things, as it has become, so to speak, legal and political »petty cash« 13 . Some scholars character- ized human dignity (David A. Hayman) as merely a pretty concept that varies according to the eye of the beholder. When it comes to questioning whether, for instance, a dress code or keeping travel logs violate human dignity, then we see a sign that the concept is being misapplied and it starts doing harm by its inflationary use 14 . Inexhaustibility of situations in which human dignity can be vio- lated implies also the inexhaustibility of the legal regulation of 7 Ibid. 8 The Constitutional Court of South Africa, 7. 6. 2002 – CCT 35/99, Dawood v Minister of Home Affairs. 9 The Canadian Supreme Court, 28. 1. 1998 – [1988] 1 SCR 30, R v. Morgentaler. 10 Human dignity in German law is both a positive right, imposing affirmative obligations on the state, and a negative right, preventing the state form acting in a way that violets the highest value of the German Basic Law, which encompasses all guaranteed rights and also includes a morality of duty that may limit the exercise of fundamental right (Federal Constitutional Court of Germany). 11 R. D. Glensey (fn. 2). 12 H. Ottiman, Dostojanstvo čovjeka: Pitanja o neupitno priznatome pojmu, Politička misao, (1997), no. 4, pp. 31-44. 13 Ibid. 14 Ibid. 52 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic human dignity. If, in juridical terms, human dignity is exercised through human rights, thereby a violation of any human right may potentially be linked with the violation of human dignity (e.g. case law of the Constitutional Court of Bosnia and Herzegovina). 15 In conclusion, modern scholarship is deeply divided as to the pro- priety and the practicality of integrating the protection of human dignity within a functional legal system. 16 on one side, there are those who believe the task to be hopeless because assessments of human dignity are quite subjective, with considerable variation temporally, chronologically, geographically and culturally. 17 on the other side are those who posit that the idea of human beings as ends in them selves forms the foundation for the unfolding of human dignity as a workable legal concept 18 . Despite the fact that the concept of human dignity is relative as it depends on a world- view, what might help is taking into account the existing attempts to define the notion of human dignity in other states of the same or similar culture. 19 In that sense, a decision of the Federal Consti- tutional Court of Germany is noteworthy, as it abolished the Law on Air Safety in 2006, which was adopted by the Bundestag and which authorized the armed forces to shoot down a passenger aircraft which had been transformed into a bomb in order to pro- tect an indeterminately large number of people on the ground. According to the court, the killing of the passengers by agencies of the state would be unconstitutional. The duty of the state ac- cording to Article 2.2 of the German Constitution to protect the lives of the potential victims of a terrorist attack is secondary to the duty to respect the human dignity of the passengers: ‘ … with their lives being disposed of unilaterally by the state, the persons on board the aircraft … are denied the value which is due to a human being for his or her own sake’ 20 . Human dignity also includes self- determination as a human being, according to the constitution, is an end in him/herself and possesses personal values, which again presuppose that human beings have the freedom to decide about themselves and their lives. 15 D. Banović, Human Dignity in European Legal Culture-The Case of Bosnia and Herzegovina, in: P. Bechi & K. Mathis (eds.), Handbook of Human Dignity in Europe, 2016 (forthcoming). 16 R. D. Glensey (fn. 2). 17 Ibid. 18 Ibid. 19 C. Steiner & N. Ademović, Ustav Bosne i Hercegovine: komentar, Sarajevo, 2010. 20 J. Habermas, Ogledi o ustavu Evrope, Sarajevo, 2011, p. 14. 53 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... There are several conceptions of dignity that one can choose from, but one cannot coherently hold all of these conceptions at the same time. 21 It follows that the concept of human dignity with- in a legal framework acquits itself on no immediate definitional parameters, which create incentives for jurists to act instrumen- tally and arbitrarily when applying a certain concept of human dignity. 22 Nevertheless, in the constitutional and democratic so- cieties, law must accommodate human dignity. Having in mind comparative perspective, human dignity can be treated as (1) a right in and of itself; (2) a general principle; (3) a value underly- ing other rights 23 . What seems to be a unifying theme is that any definition of dignity must at minimum acknowledge that every in- dividual has protected specific inner attributes, such are thoughts and feelings, and possessed the independence to chose his or hers own course in life, unfettered by interference from the state or other people 24 . Professor Rex. D Glensy provides four theories on how human dignity could be applied: (1) The positive rights approach where dignity becomes an actionable substantive legal right. This approach constitutes human dignity as a separate independent right upon which indi- viduals could assert a private action against both the government and other private parties, and which would require the govern- ment to provide a minimum set of standards to ensure that each person’s human dignity is protected. 25 (2) The negative rights approach, where dignity func- tions as a background norm. This concept embodies a non- interference norm, whereby the government is required to abstain from denigrating, rather than requiring governments to intervene on behalf of human dignity. 26 The negative rights approach is based on understanding that human dignity is the source of human rights and hence is anterior or above the state and to which it does not belong conceptually. 27 This notion of human dignity is closely associated with a liberal conception of governance. 21 R. D. Glensey (fn. 2). 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid. 54 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic (3) The proxy approach where dignity is used as a heuris- tic for other enumerated rights. Under the proxy approach to the right to dignity, the invocation of a dignitary interest in a particu- lar circumstance does not signify something independent or an- other enumerated right, but rather acts as a proxy for that right. The use of dignity functions as a heuristic - a cognitive device that serves as an aid to solve a complex problem that can act either through conscious application or else from a subconsciously au- to-programmed source. 28 (4) The expressive approach, where dignity is referred to dialogically 29 . In this framework, the right to dignity is widely in- voked as both a legal ground and a moral basis for redress of cer- tain violations by the government or by private individuals. 30 (5) The interpretation approach, where human dignity is placed as the value within the legal document and used as tele- ological argument when interpreting the essence of the human rights and the basis for creating a norm. The proposed classification presents only the practical aspect of the use of the notion of human dignity in the practice of courts and other bodies that reach meaning by interpretation. It does not provide a theoretical framework of relations of human digni- ty whose content is oftentimes undetermined, subject to various ideological interpretations, defined formally or with a meaning surplus; it fails to provide a framework for the meaning of the no- tion of human dignity, tools for its determination when the value is found in a legal source. A German lawyer, Günter Düring, of- fered one of the possible uses of the notion of human dignity in law and I will here refer to his interpretation. On Günter Düring’s object formula The key notion of Düring’s interpretation of the stand on digni- ty is the so-called object - formula: Human dignity is violated when a given human is humiliated to the level of object, a pure means, a replaceable value. 31 kant’s practical philosophy position is similar as the highest moral law of human dignity in action is the obliga- tion to act in the manner that never treats humanity as a means 28 Ibid. 29 Ibid. 30 Ibid. 31 D. Franeta (fn. 1). 55 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... but always as an end: Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means. 32 Ac- cording to Düring, the simplest way to come to the concretization of the object – formula relation, i.e. concretization of human dig- nity is from the process of violation. 33 He differentiates between a number of basic types of violations of human dignity: 1) blatant violations of dignity, such as mass expulsions and genocide in which humans are degraded to things and animals; 2) cruel pun- ishments; 3) subordinating persons to objects and denial of legal subjectivity to humans and assigning it to objects; 4) transforming humans into an object of state proceedings (use of chemical and psycho-technical substances to extort »the truth«, denial of legal hearings); 5) threatening intimacy without which there can be no person; 6) depersonalization process; 7) certain forms of viola- tions of honor; 8) life below elementary existential conditions that deprives persons of their subjectivity. 34 Blatant violations of dig- nity, according to Düring, primarily include torture, slavery, mass expulsions, genocide, humiliation, ostracization, mass murders, forced labor, experiments on people, and destruction of existence which is then not worth living. 35 Similarly to kant, Düring thinks that the true guide for value is a human being in him/herself and not a concrete person. 36 Accordingly, dignity should be assigned to the unborn and to the dead. Relying on the claim that a person in him/herself is the holder of dignity, Düring concludes that dig- nity is something present, not something acquired. 37 Therefore, it is assigned to every person in any circumstances regardless of national, racial, gender, religious, status, age, or any other differ- ences. 38 It prevents differentiating between people and all types of discrimination. 39 other authors list some other dangers in the unilateral definition of the term human dignity: first, there is the danger of speciesism; then the danger of emptying the content that dilutes the meaning in the manner that nothing human can be excluded from the term; and third, that the notion of human 32 I. Kant, Zasnivanje metafizike morala, Beograd, 1981. 33 D. Franeta (fn. 1). 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 56 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic dignity depends on certain achievements that some people reach and others do not. 40 Regardless of how many counter-arguments there are to the deliberation of human dignity by Günter Düring, such as: (1) by certain actions people are degraded to the level of animals which implies that certain actions are allowed against ani- mals; (2) impossibility of creating an exhaustive list of actions that violate human dignity; (3) granting dignity to the unborn which implies prohibition of abortion and the right of choice of women etc., but also dangers of individual one-sided definitions given by Henning ottiman, Düring sill provides a primarily juristic under- standing of human dignity which could be a useful tool when in- terpreting legal principles and norms. Human dignity as the legal principle in human rights law It is impossible to speak about the legal perspective on human dignity without making reference to the most important interna- tional conventions that introduce the notion of human dignity. In that light, the Universal Declaration of Human Rights 41 , inter alia, in its preamble, assumes the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, and in its Article 1 proclaims that all human beings are born free and equal in dignity and rights. They are endowed with reason and con- science and should act towards one another in a spirit of brother- hood. The Charter of Fundamental Rights of the European Union in its first chapter (Human Dignity) places human dignity at the top of the human rights catalogue and states in Article 1: Human dignity is inviolable. It must be respected and protected. 42 The ex- planation of the Charter says, in the part on the respect of human dignity, that the dignity of the human person is not only a funda- mental right in itself but constitutes the real basis of fundamental rights. None of the rights laid down in the Charter may be used to harm the dignity of another person, and the dignity of the human person is part of the substance of the Charter itself. I will make another reference here to the European Convention on Human 40 H. Ottiman (fn. 11). 41T he Universal Declaration of Human Rights 1948, http://cesi.fpn.unsa.ba/wp-content/ uploads/2012/12/Univerzalna-deklaracija-o-ljudskim-pravima.pdf, accessed 13 January 2015. 42 C. Steiner & N. Ademović (fn. 18). 57 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... Rights. 43 Even tough the original European Convention on Hu- man Rights does not contain a reference to human dignity, it indi- rectly proceeds from the concept of human dignity and it makes direct reference to this notion in the preamble to Protocol 13 con- cerning the abolition of death penalty in all circumstances where it is being justified by the right of human beings to life, but also full recognition of the inherent dignity of all human beings. In in- terpreting the European Convention, the European Court of Hu- man Rights and the European Commission of Human Rights have called upon the right to dignity numerous times. 44 The infusion of the right to dignity throughout the European Convention has led the European Court of Human Rights to proclaim that human dig- nity underpins the entirety of the document as a general principle of law. 45 The very essence of the Convention is respect for human dignity and human freedom. 46 The European Court of Justice, for example, in the case P v. S and Cornwall County Council inter- preted human dignity in the way that prohibits discrimination of transgender individuals, 47 stating: Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavorably by compari- son with persons of the sex to which he or she was deemed to be- long before undergoing gender reassignment (...) To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard (par. 21–22). In the case Goodwin v. Uk, the European Court of Human Rights found: Nonetheless, the very essence of the Convention is respect for human dignity and human freedom (par. 89). Under Article 8 of the Convention in particular, where the notion of personal au- tonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (par. 89). 43 European Convention on Human Rights 1998, http://www.ccbh.ba/public/down/konvencija_bos. pdf, accessed 13 January 2015. 44 R. D. Glensey (fn. 2). 45 Ibid. 46 ECtHR, 29 April 2001 – App no 2346/02, Pretty v The United Kingdom 47 In its judgment of 30 April 1996, in the case of P v. S and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimi- nation on grounds of sex. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P if P had previously been a woman and had undergone an operation to become a man. 58 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic If we perceive human dignity as a moral value, then human rights are the means for protecting this value. Human rights law translates moral norms of human freedom and human dignity into legal rights. 48 These legal rights empower individuals to lay claims against those who violate these moral norms. 49 Specifical- ly, the Convention, by establishing a set of rights and freedoms, mandates contracting States to provide proper recognition and safeguards to different spheres of personal identity. 50 In its judg- ment S. H. and the others v. Austria (2011) 51 , the Court had reiter- ated that the notion of private life within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, (1) the right to establish and develop relationships with oth- er human beings 52 , (2) the right to personal development 53 , (3) or the right to self-determination as such 54 . It encompasses elements such as gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 55 , and the right to respect for both the decisions to have and not to have a child 56 . 2. on evolutive/dynamic interpretation: interpretation or creation? In cases Golder v. the United kingdom (1975) 57 and Tyrer v. the United kingdom (1978) the Court established the doctrine of evolutive interpretation 58 which was simultaneously deployed by the Court in a substantial number of cases. 59 The principle, 48 L. K. Y. Rosa, Expansive interpretation of the European Convention on Human Rights and the cre- ative jurisprudence of the Strasbourg’s Court, Mercury: HKU Journal of Undergraduate Humanities, (2014), no. 1, pp. 70-82. 49 Ibid. 50 Ibid. 51 ECtHR, 3 November 2011 – App no. 57813/00, S. H. and others v Austria. 52 See ECtHR, 16 December 1992, Series A no. 251-B, Niemietz v Germany, § 29. 53 See ECtHR, 6 February 2001– App no. 44599/98, Bensaid v the United Kingdom, § 47. 54 See ECtHR, 29 April 2002 – App no. 2346/02, Pretty v the United Kingdom, § 61. 55 See, for example, ECtHR, 22 October 1981, Dudgeon v the United Kingdom, § 41 Series A no. 45. and ECtHR, 19 February 1997, Laskey, Jaggard and Brown v. the United Kingdom, § 36, Reports of Judgments and Decisions 1997-I. 56 See ECtHR, 10 April 2007 – App no. 6339/05, Evans v the United Kingdom [GC], § 71, and ECtHR, 16 December 2010 – App no. 25579/05, A, B and C v Ireland [GC], § 212. 57 ECtHR, 21 February 1975 – App no. 4451/70, Golder v The United Kingdom. 58 J. E. Helgesen, What are the limits to the evolutive interpretation of the Convention, in Dialogue between judges, The European Court of Human Rights, Strasbourg, 2011, pp. 19-28. 59 K. Dzehtsiarou, European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, German Law Journal, (2011), 12, pp. 1730-1745. 59 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... which the present Court still applies with the reference to the Vienna Convention on the Law of Treaties, is that the Conven- tion (ECHR) is a living instrument. 60 The Convention should be an instrument of development and improvement rather than an end game treaty that set to stone the situation of 60 years ago. However, evolutive interpretation should not be tantamount to arbitrary interpretation. 61 The Convention must be interpreted in a dynamic and evolutive way; must meet present day conditions; must be interpreted according to the purpose of the Convention; must be interpreted so as to make the rights practical and effec- tive; the Court must elucidate, safeguard and develop the rules instituted by the Convention. 62 If important social and technical changes have occurred than the precedent of previous case law should change accordingly. 63 Is there a difference between the ev- olutive and dynamic interpretation? Legal theory has developed possible guidelines: the evolutive interpretation is an interpreta- tive tool to cover the situation where the Court gives answers to new facts, societal changes, an issue which has never appeared before the Court; while dynamic interpretation refers primarily to the situation where the Court gives new answers to old facts. 64 According to professor and judge of the Court, Jan E. Helgesen, by using these interpretative tools the Court has to limit its scope of interpretation by identifying avenues or problems which need to be taken into consideration: (1) The Court provides the ulti- mate interpretation of the Convention (Art. 32) guided by legal methodology of public international law, keeping in mind that the ECHR is a very special convention. (2) Also, one might analyze the legal limits in terms of the extent to which the Court is bound by previous decisions. The Court’s current position is that it must attach considerable weight to previous case law. The magical for- mula frequently used: while the Court is not formally bound to follow its previous judgments, it is in the interest of legal certainty, foreseeability and equality before the law that it should not depart without good reason from precedents laid down in previous cas- es (Goodwin v. UK (2002), Mamatkulov and Askarov v. Turkey (2005)); (3) The question of state sovereignty and state consent 60 J. E. Helgesen (fn. 57). 61 Ibid. 62 J. E. Helgesen (fn. 57). 63 K. Dzehtsiarou (fn. 58). 64 J. E. Helgesen (fn. 57). 60 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic raises an issue of national sovereignty restrictions, which is more of a political issue and will not be discussed here; (4) The fourth cluster of problems, according to professor Helgesen, relates to the legitimacy of the Court’s judgments. 65 Usually, the issues of legitimacy are discussed at the domestic level within a paradigm often formulated as judicial activism v. judicial restraint. But this distinction is hardy applicable in the case of the Convention and the Court. If one wishes to defend the Court, one must remem- ber that if the Court would refrain from being active and creating new norms, there would be no normative development at all. The Court cannot leave the challenge of developing norms to the leg- islator. But if one is to criticize the Court, one will emphasize that it is particularly dangerous to have international courts creating new norms, since there is no political body which can correct or control the court. The discussion on the legitimacy of the Court’s judgments illustrates the tension between the two principles: the rule of law and the principle of democracy. The European con- sensus used in Court’s judgments injects European context and predictability into the Court’s legal reasoning and provides a suffi- cient response to the legitimacy challenges made against the evo- lutive interpretation; 66 (5) The fifth cluster of problems, according to professor Helgesen, constitutes the issues of efficiency. 67 The fight for respect for human rights is not settled when the Court de- livers the judgment. What remains is the effective execution of the judgment. In relation to limits of evolutive and dynamic interpre- tation, the Court must be able to give guidance to governments on how they should best implement judgments; (6) Finally, the principle of subsidiarity 68 seen from the perspective of the States assumes the claim of a particular State that human rights protec- tion is better at the domestic level. on the other hand, seen from the Court’s perspective, the principle of subsidiarity has been ef- fectively applied by these tools: (a) margin of appreciation; (b) 4 th instance; (c) facts of the case; (d) proportionality, and (e) nec- essary in a democratic society. These principles are designed to allow States room for maneuver within the Convention, but the Court may also refrain from applying these principles, giving the 65 Ibid. 66 K. Dzehtsiarou (fn. 58). 67 J. E. Helgesen (fn. 57), p. 8. 68 Ibid., p. 9. 61 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... States the feeling of being overruled in issues of great importance to them. 3. The European consensus as a way to legitimize the creation of norms? The concept of the European consensus in the case law of the Court may be defined as a general agreement among the major- ity of member states of the Council of Europe about certain rules and principles identified throughout comparative research of na- tional and international law and practice. 69 When deploying an evolutive interpretation with creating a precedent, the Court may overrule previous judgments. The reason for departing from pre- vious decisions may be rooted in phenomena such as: (1) devel- opments in law (national case law, national positive law, regional case law) 70 ; (2) medical progress; (3) societal changes 71 ; (4) scien- tific changes; (5) acceptances in the society. or, to be more spe- cific: changes in law and/or facts. The European consensus is considered a mediator between the evolutive interpretation and the margin of appreciation and it is a rebuttable presumption in favor of the solution adopted by the majority of the Contracting Parties. 72 In the case A, B and C v. Ireland 73 , the Court has stated that the existence of a consensus has long played a role in the development and evolution of Con- vention beginning with Tyrer v. United kingdom (...), the Conven- tion being considered a »living instrument« to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention. 69 K. Dzehtsiarou (fn. 58). 70 ECtHR, 15 October 2009 – App no 17056/06, Micallef v Malta: The Court observes that there is a widespread consensus among the Council of Europe member States, which either implicitly or expli- citly provide for the applicability of Article 6 (...). Similarly, as can be seen from its case law (...) the European Court of Justice (par. 78). See also paragraph 31: On the basis of the material available to the Court in respect of the legislation of a relevant number of member States of the Council of Europe, it appears that there is widespread consensus on the applicability of Article 6 safeguards to interim measures, including injunction proceedings. This conclusion is inferred from constitutional texts, codes of civil procedure and domestic case-law. 71 ECtHR, 27 September 1990 – App no 10843/84, Cossey v United Kingdom (...) Nevertheless, this would not prevent the Court from departing from an earlier decision if it was persuaded that there were cogent reasons for doing so. Such a departure might, for example, be warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions (...) (paragraph 35). 72 K. Dzehtsiarou (fn. 58). 73 A, B and C v Ireland (fn. 55). 62 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic Lack of consensus may prevent the Court from applying a dynam- ic interpretation (e.g. Sheffield and Horsham v. the United King- dom in 1998). The Court stated that it could not depart from pre- vious case law because the issues of transgender raise complex scientific, legal, moral and social questions in respect to which there is no common approach among the Contracting States. The case Christine Goodwin v. the United Kingdom (2002) dealt with similar facts and the previous decision was overturned with the reasoning that there is a continuing trend in transsexuals’ right recognition 74 . But if the law of the respondent state diverts from the European consensus it does not automatically mean that the given state is violating the Convention. The member state may have a particularly strong justification for the concerned law even if this law is different from the common European consensus. 75 one can suggest that the assessment of this justification takes into account the moral sensitivity of the matter at stake, historical and political justification, as well as other factors. 76 The Court applies the European consensus extensively in relation to a broad variety of rights and it possesses legitimizing potential. 77 It is persuasive because it is based on decisions made by democratically elected bodies and it can positively affect the clarity of the Court’s legal reasoning. 78 There is no common understanding among com- mentators on the relation between the evolutive interpretation and the European consensus. Some argue that the fact that the European consensus was deployed to support evolutive interpre- tation proves that the European consensus is not a sign of stability of the case law but rather an instrument which justifies changes and that the European consensus argument does not contradict evolution but rather restricts it. 79 Some commentators argue that the Court can either defer to the solutions adopted at the national level or deploy evolutive interpretation. 80 Nevertheless, the Court faces a dilemma: its judgments should be independent enough to effectively guarantee human rights but they should also reflect the common European position for the following reasons: (1) ac- 74 K. Dzehtsiarou (fn. 58). 75 Ibid. 76 Ibid. 77 Ibid. 78 Ibid. 79 Ibid. 80 M. Pinto-Duschinsky & B. Gibbs, Bringing Rights Back Home: Making Human Rights Compatible with Parliamentary Democracy in the UK, London, 2011. 63 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... ceptance of its judgments by the respondent state and in general among the Contracting Parties; (2) as a foundation to legitimize its judgments; (3) to balance between respecting the margin of appreciation and deploying a dynamic interpretation. 4. Recognizing the right to gender transgression The Council of Europe is a global pioneer in applying human rights to transgender people as well. Article 14 of the European Convention on Human Rights introduces the non-discrimination principle in relation to the rights set forth in the Convention. Al- though gender identity is not explicitly mentioned in the Conven- tion, the term ‘transsexualism’ was used in the interpretation of ‘other status’ in the case P.V. v. Spain 81 in 2010. Since 1992, the European Court of Human Rights adopted positive decisions in a number of cases that referred to rights of transgender people in the following spheres of life: (1) right to recognition of gender in the postoperative phase of transgender persons (B. v. France) 82 ; (2) right to marry (Goodwin and I. v. Uk) 83 ; (3) right to fair and proportional requirements in relation to gender reassignment procedures (van kück v. Germany); (4) right to pension (Grant v. The United kingdom) 84 and (5) right to appropriate and clear procedure of legal recognition of name and sex (L. v. Lithuania) 85 . Gender identity and its expression are very important elements of everyday life of transgender people, but are also important for the understanding of the concept of human rights of transgen- der people. Some legal systems of the Council of Europe member states still place gender identity under sexual orientation, and the two concepts are different. But if the case law recognizes discrim- ination against transgender people, the failure to include ‘gen- der identity’ into positive law is not problematic. over the last 30 years, there is an evident tendency of the Council of Europe mem- ber states to provide full recognition of transgender people, but this tendency has primarily been caused by case law of the Euro- pean Court of Human Rights. The issue of transgender rights was 81 ECtHR, 30 October 2010 – App no 35159/09, P. V. v Spain. 82 ECtHR, 25 March 1992– App no 3343/87, B. v France. 83 ECtHR, 11 July 2002 – App no 28957/95 and 25680/94, Christine Goodwin & I. v United King- dom. 84 ECtHR, 23 May 2006 – App no 32570/03, Grant v United Kingdom. 85 ECtHR, 11 September 2007 – App no 27527/03, L v Lithuania. 64 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic raised a number of times by the European Court of Human Rights as of 1979; until 2002 the Court considered this issue to be subject to ‘free assessment by the state’. In its decision Goodwin v. The United kingdom, 86 the Court unanimously found that there has been a violation of Article 8 (right to respect for private and fam- ily life) and Article 12 (right to marry). This decision developed a precedent by which member states of the Council of Europe may no longer invoke the so-called principle of free assessment when it comes to the right to respect for private and family life, and the right to marry of transgender and transsexual people. In the con- text of rights of transgender people to sex reassignment and legal consequences of sex reassignment, the European Court of Hu- man Rights applied the European Convention on Human Rights in its important decisions and imposed the obligation upon mem- ber states to enable transgender people to have access to surger- ies for full sex reassignment and that these should be covered by health insurance as medically necessary procedures (see van kück v. Germany 87 ), and to enable the change of sex marking in personal documents (see Goodwin v. The United kingdom and B. v. France) 88 . 5. Creating precedents, creating norms; A short overview of Goodwin v. Uk (2002) Putting aside other sources of international human rights law, the international courts as agents have the authority to formally recognize the existence of law. 89 That is, to certify that a given hu- man right exists in positive international law and to use it as a ba- sis for adjudicating the dispute before them. The boundaries be- tween interpretation and lawmaking are blurred. 90 or, put more concrete, seeing »lawmaking« by the means of judicial recognition as an alternative avenue that permits positive international law to side step its own systematic deficiencies and evolve beyond the sovereign state. 91 In the Elmar case from 1882, the judges of the 86 Christine Goodwin v United Kingdom and Northern Ireland (fn 82). 87 ECtHR, 12 September 2003 – App no 35968/97, Van Kück v Germany. 88 B. v France (fn. 81). 89 V. P. Tzevelekos, The Making of International Human Rights Law, in C. M. Brölmann, & Y. Radi (eds.), Research Handbook on the Theory and Practice of International Law-Making, Cheltenham, Northampton, 2015, pp. 329-353. 90 Ibid. 91 Ibid., p. 12. 65 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... New York Supreme Court could not agree about what the law said. 92 Minority dissenting opinion of judge Gray advocated the theory of literal interpretation of legislation. 93 According to this theory, the words in the law should be assigned those meaning that we would assign without any special knowledge about the context they were used in or the intentions of their maker; 94 in other words, that we would assign in an acontextual reading. However, judge Earl, who wrote on behalf of the majority, used a significantly different legislation theory, according to which the intentions of the legislator have a notable influence on the law. 95 Judge Earl thought that they should rely on the following princi- ple: that the law should not produce a consequence that the leg- islators would not have approved had they thought about it. 96 But he did not rely only on this principle, he said that the law should not be interpreted based on the text in a historical isolation, but within what he calls a general legal principle: judges should inter- pret the law in a way to approximate it as much as possible to the principle of justice, inherent to the law. 97 First, it is reasonable to assume that the legislators had a general and broad intention to respect the traditional principles of justice. 98 Second, as the law is a part of a wider system of thought – law as a whole – it should be interpreted in the manner which will make the wider system coherent in principle. 99 In the Goodwin case, the European Court had stated that while the Court is not formally bound to follow its previous judgments, it is in the interest of legal certainty, foresee- ability and equality before the law that it should not depart, with- out good reason, from precedents laid down in previous cases (see Goodwin v. UK par. 74). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and should respond, for example, to any evolving convergence as to the standards to be achieved (see Goodwin v. UK par. 74). It is of crucial importance that the Convention is interpreted and ap- 92 R. Dworkin, Carstvo prava, Beograd, 2003, p. 26. 93 Ibid., p. 27. 94 Ibid. 95 Ibid., p. 28. 96 Ibid., p. 29. 97 Ibid. 98 Ibid. 99 Ibid. 66 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic plied in a manner, which renders its rights practical and effec- tive, not theoretical and illusory (emphasis added). A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (par 74). In the present context the Court has, on several occasions since 1986, signaled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review (par. 74). The Court proposed therefore to look at the situation within and outside the Contracting State to assess “in the light of present-day conditions” what is now the appropriate interpretation and ap- plication of the Convention (par. 75). The Court observed that the applicant, registered at birth as male, had undergone gender reas- signment surgery and lives in society as a female (par 76). None- theless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant’s life where sex is of legal relevance and distinctions are made between men and women (par 76). It must also be recognized that serious inter- ference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (par 76). The stress and alienation arising from discordance between the positions in society assumed by a post-operative transsexual and the status imposed by law, which refuses to recognize the change of gender, cannot, in the Court’s view, be regarded as a minor in- convenience arising from a formality (par 77). A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety (par. 77). The state of European or any international consensus in Goodwin case Already at the time of the Sheffield and Horsham case, there was an emerging consensus within Contracting States in the Coun- cil of Europe on providing legal recognition following gender reassignment (par 84). The latest survey submitted by Liberty in the case Goodwin vs. UK showed a continuing international trend towards legal recognition (par 84) 100 . The Court observed that in 100 In Australia and New Zealand, the courts are moving away from the biological birth view of sex and taking the view that sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be assessed at the time of marriage (par. 84). See R. Dworkin, (fn. 91), p. 27. 67 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... the case of Rees in 1986 it had noted that little common ground ex- isted between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (par. 84). In the later case of Sheffield and Horsham, the Court’s judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection (par. 84) (...). The Court accordingly attached less importance to the lack of evidence of a common European ap- proach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing inter- national trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals (emphasis added) (par 85). The Court retreated from finding a general or European consensus in situ- ations of sensitive intimate or moral issues, in concreto transgen- der identity issues. This retreat is quite understandable having in mind the different views of public morality in states members of the Council of Europe. However, it is not justified to search for majority consensus when it comes to human rights, as the major- ity may not decide about the rights of the minority. In the conflict between the rule of law and the democratic majority principle, primacy should be given to the rule of law. In this light, the Court moved towards developing argumentation which is marked by (1) a continuing international trend in social acceptance of trans- sexuals and (2) legal recognition of the new sexual identity within the already established evolutive method of interpreting the Con- vention. Human dignity as a value and legal principle Court cases, at least in principle, always raise three disputable questions: (1) the question of facts, (2) the question of law, and (3) mutually intertwined questions of political morality and devo- tion. 101 When we discuss the disagreement about what law is, this may be a disagreement about the empirical disagreement, and the theoretical disagreement about law, i.e. basic rights. 102 Law is 101 R. Dworkin (fn. 91), p. 13. 102 Ibid., p. 15. 68 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic what is contained in decisions of legal institutions, such as legisla- tive authorities, city councils and courts (»pure facts« view). 103 But if that stands, what are the lawyers disputing about? Well, when it seems that they disagree as to what law is, they are in fact disagree- ing about what law should be. It seems that their disagreement re- lates to morality and devotion. 104 The most popular view in Great Britain and the United States of America requires from a judge to primarily follow the law in his/her decision, not to improve it. 105 There are those with an opposing opinion: judges should try to improve law whenever they can, to be educative. 106 A good judge favors justice over law. 107 In addition, there is no doubt that judges create new law when they adjudicate in an important case. 108 In examples of gender transgression, part of the intimate and private sphere of an individual having consequences in the outer world of social relations, the question is raised about what law is in such a case, and what is the matter of the political morality here as gen- der transgression and its legal recognition is primarily the ques- tion of public conscience, public morality, but also human dignity. The facts remain the same, but the question of recognizing what law constitutes changes in a given period of time. How is it pos- sible that within a single positive law, something does not con- stitute a right in the practice of the Court, but is later recognized as a right through interpretation? Are we then talking about the creation of law or its interpretation? In the specific precedent of Goodwin v. UK (2002) the Court found that the right to privacy has been violated (Article 8). Thereby, judicial interpretation allows the already existing rights to act as an umbrella widening their semantic field to the extent that they acquire a new dimension and accommodate an enriched scope. 109 Depending on the legal theory one belongs to, it is possible to speak about the creation of law or interpretation of law. If we accept that only democratically elected bodies have the right to create law, and in the state of defi- cit of the legitimacy to create law, the Court introduces a model of the so-called European consensus on the future precedent. The 103 Ibid., p. 17. 104 Ibid. 105 Ibid., p. 18. 106 Ibid. 107 Ibid. 108 Ibid., p. 16. 109 V. P. Tzevelekos (fn. 88), p. 14. 69 DIGNITAS n Gender Transgression as a European Value? The Role of the Court in ... European consensus is in fact nothing more than a legitimizing model that a state resorts to at national level when adopting laws to regulate social relations. The conflict between social facts and law, and the lack of rule of recognition in international law, leads to a situation where international courts appear as de facto bodies that recognize the existence of law. 110 Although not a part of evo- lutive interpretation method, human dignity appears as (1) value and (2) legal argument of the interpretations of rights from the Convention: the very essence of the Convention is respect for hu- man dignity and human freedom. Also, in the specific precedent, the Court considers that society may be reasonably be excepted to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost (par 91). In the terminology of Rex D. Glensey, human dignity is in the function of defending the in- dividual from the state (the negative rights approach), but also is the representative of other rights (the proxy approach), as well as the moral and legal basis (the expressive approach) and the means of targeted interpretation for a precedent but also for future cases (the interpretation approach). In interpreting law, the judge may decide to apply the mechan- ical, literal interpretation of the legislation which makes him/her apply law in a simple, acontextual manner, whatever illogicalities it produces. The other path is to set the goal, the intention of those who created the norms, which in its radical form rejects the exist- ence of law as the source of the norm, and start from it as from a framework. The middle, conciliatory way combines the argumen- tation of goal and intention with the systemic linkages of legal norms, precedents and legal principles. In recognizing the right to gender transgression, the European Court took the middle way (1) by applying parts of the evolutive method, but retreating from the search for European or any other consensus, i.e. by translating social evolution into law: the majority may not and should not decide on the rights of the minority; (2) referring to the general trend of recognizing the social acceptance of transgender people and legal recognition of the new gender identity in member states; (3) by targeted, teleological interpretation of the Convention that is to protect the values of human dignity, and where human dig- 110 See more in V. P. Tzevelekos (fn. 88). 70 DIGNITAS n Evropsko in mednarodno pravo človekovih pravic nity appears also as a legal principle 111 ; (4) systematically linking it to the existing rights (right to marry and right to privacy and family life), it finally recognizes gender transgression not only as a new human right, but also as a value within the framework of the European human rights law. The European Court for Human Rights has formally recognized the right to transgression as the legal norm: the political claim has been translated into an individ- ual positive right; it has become an institutionalized value. If we take into consideration the premise that human dignity encom- passes the right to personal self-determination, individual identity (sexual or gender) is then part of his or her right to personal self- determination. Also, if we accept the premise that human dignity is a value in democratic societies which legitimates state’s exist- ence, it’s decisions and power, then human dignity is a value in every state which not only formally but essentially defines itself as democratic and in its foundations respects individuals. Human rights law (universal and regional) introduces human dignity as a positive moral and legal value and human rights as instruments, tools, processes and material preconditions the final purpose of which is to protect this value. BiBliOGrapHy Steiner, C. & Ademović, N.; Ustav Bosne i Hercegovine: komentar. Fondacija konrad Adenauer, Sa- rajevo, 2010. Banović, D.; Human Dignity in European Legal Culture-The Case of Bosnia and Herzegovina. In: P. Bechi & k. Mathis (eds.). Handbook of Human Dignity in Europe, Springer, 2016. (forthcoming) Franeta, D.; Ljudsko dostojanstvo između pravnodogmatičnih i filozofskih zahtjeva, Filozofska istraživanja, no. 4, (2011), pp. 825-842. Eberle, E.; Human Dignity, Privacy, and Personality in German and American Constitutional Law, Utah LR, no. 1, (1997), pp. 963-1056. ottiman, H.; Dostojanstvo čovjeka. Pitanja o neupitno priznatome pojmu, Politička misao, no. 4, (1997), pp. 31-44. k ant, I.; zasnivanje metafizike morala, BIGz , Beograd, 1981. Habermas, J.; ogledi o ustavu Evrope, Fondacija Centar za javno pravo, Sarajevo, 2011. Helgesen, J. E.; What are the limits to the evolutive interpretation of the Convention. In: Dialogue between judges, The European Court of Human Rights, Strasbourg, 2011, pp. 19-28. Dzehtsiarou, k.; European Consensus and the Evolutive Interpretation of the European Convention on Human Rights, German Law Journal, no. 12, (2011), pp. 1730-1745. Rosa, L. k. Y.; Expansive interpretation of the European Convention on Human Rights and the crea- tive jurisprudence of the Strasbourg’s Court, Mercury: HkU Journal of Undergraduate Humanities, no. 1, (2014), pp. 70-82. 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