Margin of Appreciation Doctrine in ECtHR's Treatment of Transsexual Rights, with Insights into the Influential Role of the EU

Year 2023, Issue: 19, 26 - 41, 01.03.2024

Haluk Ballı

Abstract

Margin of appreciation doctrine is a legal tool frequently used by the ECtHR in cases dealing with certain human rights the definitions and boundaries of which are open to interpretation. It refers to the flexibility afforded to the Contracting States in fulfilling their responsibilities emanating from the Convention. This way, in cases where there is not a consensus across the Contracting States over a specific issue, national laws function as the ultimate point of reference. One of the areas where the margin of appreciation doctrine is used is cases about human rights violations against transsexuals stemming from state refusal to recognize reassigned sex. Generally, transsexuals taking their states to the Court for violating their basic human rights did not get any substantial result because, until 2002, the Court used the doctrine in favor of the Contracting States and most cases were decided in favor of them due to the lack of a consensus and a set of common practices among member states. In 2002, the Court changed its tendency in favor of the applicants by deciding that The United Kingdom violated Articles 8 and 12 of the Convention in Christine Goodwin v. The United Kingdom. This change in the approach of the Court came about as a result of a trend initiated by the European Union regarding the human rights of transsexuals. In 1989, the European Union published a resolution where it called on its member states to legally guarantee basic rights of transsexuals and called on the Council of Europe to issue a similar report. While this whole set of processes has had positive results for the protection of human rights of transsexuals, issues of whether human rights of transsexuals are properly defined and protected and how the position of the Court as a supranational judicial body is affected by the doctrine still call for more discussion as margin of appreciation doctrine creates a hierarchy of rights by putting certain human rights above others as deemed fit by the norms of the society.

Keywords

ECHR, European Union, margin of appreciation, human rigts, transsexual rigts

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