Statelessness Principle in French Law and Transsexualism

Extract

[...] For example, Article 16-7 prohibits gestational surrogacy contracts affirming that the human body and filiation relationships cannot be the subject of contractual agreements. These rules translate a will to protect fundamental legal relationships against arbitrary or opportunistic attacks. Sex, as a central element of legal identity, holds a particular importance in this perspective. In French civil status, sex is considered a fixed element, attributed at birth based on biological criteria. This approach is based on the idea that the immutability of sex guarantees the reliability of civil status records and protects the stability of legal and social family relationships. [...]

[...] These decisions paved the way for a progressive evolution of French law regarding the recognition of gender identities. On the legislative level, the law of 18 November 2016 recently consolidated this evolution. Now, Article 61-5 of the Civil Code opens the procedure for changing the sex mentioned in the civil status to any major or emancipated minor person who demonstrates the reality of their transsexualism by a sufficient collection of facts. Article 61-6 of the same code expressly states that refusing to grant a request for a change of sex cannot be based solely on the fact that the applicant has not undergone medical treatment, surgery, or sterilization. [...]

[...] These tensions are particularly evident in the areas of filiation and marriage. For example, when the internal law of the State prohibits marriage between people of the same sex, the legal recognition of a person's change of sex prevents their previous marriage from being maintained (Parry v. United Kingdom judgment of 28 November 2006). In the area of filiation, the change of sex raises complex questions. For example, how should a trans parent be designated on a birth certificate? Should we use the terms 'father' and 'mother', or create new categories? [...]

[...] From then on, a major question arises: how to reconcile the principle of statelessness of persons with the demands of transgender persons for full and complete recognition of their identity? This principle of statelessness of persons fulfills different objectives but evolves in the light of transgender claims and mores (II). I. The principle of statelessness of persons: an essential foundation of the legal order The principle of statelessness of persons is based on a logic of preservation of public order and legal security Historically, it has been applied strictly, excluding any possibility of modification of the constituent elements of civil status, particularly in the matter of transsexualism A. [...]

[...] However, this rigidity had important consequences for trans people. In the absence of legal recognition, they found themselves facing discrimination in various areas, such as access to employment, administrative procedures or family rights. These difficulties led to a progressive awareness of the need to adapt the law to reality. II. The evolution of the principle of indisponibilité in the face of transgenic claims Faced with the growing claims of trans people, French law has initiated a relaxation movement. This change, driven by jurisprudential advances and legislative reforms demonstrates the ability of law to adapt to societal changes while preserving public order, not without difficulties A. [...]