No. 11/08743, 1453, 12/00535, Cour d’Appel de Rennes, France (16 October 2012)
Wilfrid Francis A. and Marie-Jeanne T., a married couple, filed a petition to the Tribunal de Grande Instance of Brest seeking to change Wilfrid’s name to Chloé and to change the sex to female in both the birth certificate and marriage act, but the tribunal ruled against their petition. Consequently, the plaintiffs filed an appeal in the Court of Appeal of Rennes.
Chloé was assigned male at birth. Chloé had been married for 13 years when she decided to change her sex. Subsequently, she underwent treatments and interventions that made her irreversibly female. The couple sought to recognise the gender reassignment in Chloé’s birth certificate as well as their marriage act, without dissolving the marriage. The couple had three minor children.
Whether the applicant could change sex markers without dissolving the marriage.
Civil Code, Article 99
European Convention of Human Rights, Article 8 (right to respect for private and family life).
Parry v. United Kingdom, ECtHR, 2006 (declaring inadmissible complaint based on forced divorce of married couple after gender reassignment of one of the spouses).
Reasoning of the Court
The reasoning of the Court of Appeal is organized into two parts. The Court first analyzes the recognition of Chloé’s sex change and then discusses the consequences of this recognition on the existing marriage.
First, the Court stated that nothing called into question the fact that the plaintiff became a woman in a definitive and legitimate way. Therefore, it would be a plain violation of Article 8 of the European Convention to refuse to grant civil status in conformity with the change of gender identity. Consequently, the female gender and name change would be noted in the margins of birth certificate.
Secondly the Court analyzed the consequences of the sex change on the marriage. The Court held that the deliberate decision of the couple to continue their lives together was part of their private life, in which the court could not intervene. Furthermore, the Court noted that it was not necessary to rule on the validity of the marriage. The validity of the marriage was determined at the time of marriage and was for that reason incontestable. In this particular case, there had clearly been a union between two people of the opposite sex, which had produced three children. However, if the change of sex was noted in the margins of the marriage act, it would create the existence of a union of two persons of the same sex, which given the state of French law was against public order. Moreover, this reference was not required, since the concordance between the birth certificate and the act of marriage was sufficiently established by the reference to the marriage in the margins of the birth certificate. Mentioning the sex again in the marriage act was not necessary.
Furthermore, although not solicited by the plaintiffs, the attorney general’s office contemplated a possible reference in the margins of the birth certificate of the children and concluded that such a reference had no place there. The Court of Appeal recalled that it is in any case unnecessary to make any reference to the sex change in the birth certificates of the children, as it indirectly runs counter to the prohibition of public order as recalled above. It would be materially absurd to indicate that they are biological children of two persons of the same sex.
The Court stated that the plaintiff was now of the female sex and bore the name Chloé. It ordered a reference in the birth certificate. The Court further stated that there was no place to refer to this name and sex change in the margins of the marriage act.
No. 11/08743, 1453, 12/00535, Cour d’Appel de Rennes, France (16 October 2012) (full text of judgment in French, PDF)