Convention (Nº 29) of the
International Commission on Civil Status (ICCS) on the
recognition of sex reassignment decisions and Explanatory Report
adopted by the Lisbon General Assembly on 16 September 1999 (*)
(*) Only the original French language version is authentic.
"Transsexualism in
Europe" (Council of Europe Publishing 2000) pp. 67-76
uploaded 2002/01/17
International Commission on Civil Status - Secretariat General
3. place Arnold. F-67000 Strasbourg. France
Tel: +33 (0)388 611862 Fax: +33 (0)388 605879
The States signatory to this Convention,
members of the International Commission on Civil Status,
Wishing to foster the recognition on their territory of decisions
recording a person's sex reassignment, taken in another
Contracting State,
Have agreed on the following provisions to that end:
Article 1
Final court or administrative decisions recording a person's sex
reassignment that have been taken by the competent authorities in
a Contracting State shall be recognised in the other Contracting
States if, at the time when the application was made, the person
concerned was a national of or habitually resident in the State
in which the decision was taken.
Article 2
Recognition of the decisions referred to in Article 1 of this
Convention may be refused in the following cases:
a) when the physical adaptation of the person concerned has not
been carried out and has not been recorded in the decision in
question;
b) when such recognition is contrary to public policy in the
Contracting State in which the decision is relied on;
c) when the decision has been obtained by fraudulent means.
Article 3
A State which recognises a decision pursuant to this Convention
shall update, on the basis of that decision and according to the
arrangements provided for under its domestic law, the birth
certificate of the person concerned that has been drawn up in
that State or transcribed into its civil status registers.
Article 4
This Convention shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be
deposited with the Swiss Federal Council.
Article 5
1. Any member State of the International Commission on Civil
Status may accede to this Convention. It is also open to
accession by any member State of the European Union.
2. The instruments of accession shall be deposited with the Swiss
Federal Council.
Article 6
1. This Convention shall enter into force on the first day of the
seventh month following the deposit of the second instrument of
ratification, acceptance, approval or accession by member States
of the International Commission on Civil Status.
2. In respect of any State that ratifies, accepts, approves or
accedes to the Convention after it has entered into force, the
Convention shall take effect on the first day of the seventh
month following the deposit of the instrument of ratification,
acceptance, approval or accession by that State.
Article 7
1. After the entry into force of this Convention, any State other
than those referred to in Article 5 may accede to it. The
accession will have effect only as regards the relations between
the acceding State and a Contracting State that has declared its
acceptance of the accession. Such a declaration will also have to
be made by any State that becomes a party to the Convention after
the accession. The instruments of accession and the declarations
shall be deposited with the Swiss Federal Council.
2. The Convention shall enter into force between the acceding
State and the State that has declared its acceptance of the
accession on the first day of the seventh month following the
deposit of the declaration of acceptance.
Article 8
1. At the time of signature, ratification, acceptance, approval
or accession, any State may reserve the right not to apply the
provisions of this Convention to administrative decisions
recording a sex reassignment.
2. No other reservation shall be admitted.
3. Any State may at any time withdraw the reservation it has
made. The withdrawal shall be notified to the Swiss Federal
Council and shall effect on the first day of the seventh month
following receipt of such notification.
Article 9
1. Any State may, at the time of signature, ratification,
acceptance, approval or accession, or at any time thereafter,
declare that this Convention shall extend to all the territories
for the international relations of which it is responsible, or to
one or more of them.
2. This declaration shall be notified to the Swiss Federal
Council and the extension shall take effect when the Convention
comes into force in respect of the said State or, subsequently,
on the first day of the seventh month following receipt of such
notification.
3. Any declaration of extension may be withdrawn by notification
addressed to the Swiss Federal Council and the Convention shall
cease to be applicable to the designated territory on the first
day of the seventh month following receipt of such notification.
Article 10
1. This Convention shall remain in force indefinitely.
2. Any State party to this Convention may, however, denounce it
at any time after one year has expired since the date on which
the Convention entered into force in respect of that State. The
denunciation shall be notified to the Swiss Federal Council and
shall take effect on the first day of the seventh month following
receipt of such notification. The Convention shall remain in
force between the other States.
Article 11
1. The Swiss Federal Council shall notify the member States of
the International Commission on Civil Status and any other State
that has acceded to this Convention of:
a) the deposit of any instrument of ratification, acceptance,
approval or accession;
b) the deposit of any declaration as mentioned in Article 7;
c) each date of entry into force of the Convention;
d) any declaration concerning the reservation provided for in
Article 8, or its withdrawal;
e) any declaration concerning the territorial extension of the
Convention, or its withdrawal, and the date on which it is to
take effect;
f) any denunciation of the Convention and the date on which it is
to take effect.
2. The Swiss Federal Council shall inform the Secretary General
of the International Commission on Civil Status of any
notification made pursuant to paragraph 1.
3. As soon as this Convention enters into force, the Swiss
Federal Council shall send a certified true copy to the Secretary
General of the United Nations for placing on record and
publication, in accordance with Article 102 of the Charter of the
United Nations.
In witness whereof the undersigned, being
duly authorised thereto, have signed this Convention.
Done at... on ..., in a single copy, in French, which shall be
deposited in the archives of the Swiss Federal Council, and a
certified true copy of which shall be sent through diplomatic
channels to each member State of the International Commission on
Civil Status and to acceding States. A certified true copy shall
also be addressed to the Secretary General of the International
Commission on Civil Status.
Explanatory Report
adopted by the Lisbon General Assembly on 16 September 1999
1. Background
The International Commission on Civil Status (ICCS) has looked
into the complex and sensitive question of transsexualism on
several occasions. Since the late 1970s, it has built up
documentation on the legal provisions and administrative or court
decisions on this subject in its member States and has
Inventoried the repercussions of transsexualism on the civil
status of the persons concerned. This documentation was brought
up to date for the Colloquy on European Law on the theme of
"Transsexualism, medicine and law" which was
organised by the Council of Europe in Amsterdam from 14 to 16
April 1993, at which the ICCS presented two reports, on "Legal
consequences of sex reassignment in comparative law/' and
"International aspects of sex reassignment decisions".
Finding that there were problems over the
recognition in one country of decisions concerning transsexualism
taken in another, the ICCS pursued its work after the colloquy by
setting up a special committee to carry out a detailed study of
the question, paying particular attention to the consequences of
such decisions as regards civil status and the administrative
documents issued to the persons concerned. Transsexuals often
find themselves in a difficult situation, particularly when their
nationality is not that of the State in which the sex
reassignment decision was obtained. The result may be, for
example, that the sex stated on the person's passport or identity
card is different from that shown on his or her driving licence,
residence permit or social security card, which is a source of
major difficulties in everyday life. Although there are not many
of them, transsexuals meet with such serious practical problems,
and suffer such acute psychological upset, that it was thought
necessary to regulate the matter at international level.
The Council of Europe, which has also
examined the problems of transsexuals on several occasions,
considered that as sex reassignment decisions affect the civil
status of those concerned, and in particular their birth
certificates, the ICCS was the organisation best equipped to deal
with the matter.
In 1994 the ICCS began working on a
convention on the recognition of decisions concerning sex
reassignment, a task that raised a number of tricky legal
problems, especially since only a few countries have laws
regulating the matter, most of the others leaving it to be dealt
with by case-law.
In 1996 the ICCS drew up a detailed
questionnaire to which all Its member States replied. The
information gathered as a result was summarised in an article
entitled "Transsexualisme, vie privée et familiale dans
les Etats de la CIEC" ("Transsexualism, private
and family life in ICCS member States"), published in
the review Droit de la famille (Editions du Juris
Classeur, Paris 1998, No. 12). At the Council of Europe's request
and using the information, supplemented by extensive
documentation, that it had gathered during the course of its own
work on the subject, this monograph was extended to include other
States. It has been agreed that the Council of Europe will
publish this second study under the title "Transsexualism
in Europe", in both English and French.
After studying the laws and case-law of its
member States and following the detailed discussions needed
because of the wide differences in their legal systems, the ICCS
has drawn up this Convention, which is limited to laying down the
conditions governing the recognition in one State of a sex
reassignment decision taken in another State. It does not deal,
except as regards civil status (see Article 3 of the Convention
and the corresponding commentary), with the legal and practical
consequences of such a decision. These consequences, which
include the right of a person who has obtained a sex reassignment
decision to marry someone of the sex to which the person
concerned previously belonged, are to be dealt with by the
domestic law of the Contracting States.
In this way, the ICCS hopes to contribute
to improving the legal and social situation of transsexuals in
accordance with the case-law of the European Court of Human
Rights (see, for example, the cases of Cossey v. the United
Kingdom, ECHR, 27 September 1990, Series A No. 40, Botella v,
France, ECHR, 25 March 1992, Series A No. 231 C and Sheffield and
Horsham v. the United Kingdom, ECHR, 30 July 1998, Reports 1998 -
V).
2. Commentary on the Articles
Article 1
This Article lays down the conditions governing the recognition
in a Contracting State of a sex reassignment decision taken in
another Contracting State. Sex reassignment means a physical
adaptation such that the person concerned must be considered from
a legal point of view as no longer belonging to his or her
original sex.
In most cases, sex reassignment decisions are handed down in the
context of a judicial procedure. However, in some countries, such
as Austria, the procedure is an administrative one. The
Convention covers recognition of both categories of decisions
once they are final, which implies, in the case of court
decisions, that they can no longer be appealed and, in the case
of administrative decisions, that they are irrevocable.
Such a decision will be recognised when it applies to a national
of the State in which the decision was taken or to a person who
habitually resides in that State; these conditions must have been
fulfilled on the day on which the application for a sex
reassignment decision was submitted to the competent authority.
The Convention does not state whether recognition will follow
/pso jure or whether it will be subject to a judicial or
administrative procedure, this question being left to domestic
law.
Article 2
This Article lists exhaustively the cases in which recognition of
a decision recording a sex reassignment may be refused. The State
in which recognition of the foreign decision is sought is
entitled, but not obliged, to refuse recognition in three cases.
The first case concerns the transsexual's physical appearance.
The body of the person concerned must have been adapted, before
the decision recording the sex reassignment, as much as possible
by medical treatment and surgery to give it the physical
appearance of the sex to which that person claims to belong. This
physical adaptation must not only have been carried out, it must
also be expressly recorded in the sex reassignment decision. If
it is, the requested State will not, in principle, have to check
again that the physical adaptation has indeed been carried out;
this will normally be certified or confirmed by medical
certificates produced or a medical examination carried out during
the judicial or administrative procedure.
The second case arises when such recognition is contrary to
public policy in the State in which it is requested, although it
is pointed out that sex reassignment in itself cannot be
considered contrary to public policy.
The third and final case applies to decisions that have been
obtained by fraudulent means. Although the notion of violation of
public policy may cover fraud in a given State, the ICCS thought
it best to make this explicit.
Article 3
This Article deals with the most important practical consequence
of recognising a sex reassignment decision, namely updating the
transsexual's birth certificate when that certificate was drawn
up in the State where recognition has been obtained. As the
Convention contains no specific provisions on this point, the
updating will have to be requested by the person concerned.
Updating will take the form of an entry in the margin or at the
bottom of the birth certificate or by transcription into the
civil status registers. Only the transsexual's birth certificate
may be updated, not his or her marriage certificate or the birth
certificates of his or her children, if any. Amendments to other
documents concerning the transsexual, such as a driving licence
or diplomas - which are possible in many countries - are not
covered by this Convention. They are a matter for the domestic
law of the State recognising the sex reassignment decision.
Articles 5 and 7
The question of the geographic scope of the Convention was the
subject of lengthy discussions. Finally, it was decided to open
the Convention to all member States of the International
Commission on Civil Status or of the European Union without
restriction. This principle is set out in paragraph 1 of Article
5.
As regards other States, given the sensitive nature of the
subject of the convention, a more restrictive wording, based on
that used in certain Conventions drawn up by the Hague Conference
on Private International Law was adopted. Under Article 7, a
State which is a member neither of the International Commission
on Civil Status nor of the European Union may accede to the
Convention after it has entered into force, but such accession
will have effect only as regards the relations between that State
and those Contracting States which have declared that they accept
the accession. Such accession will likewise take effect as
regards the relations between the acceding State and a State
which becomes a party to the Convention after the said accession
only if the latter has declared that it accepts the accession.
Article 8
Article 8 gives those States which consider that sex reassignment
decisions must always be taken by the courts the right to enter a
reservation whereby they will not apply the Convention to
administrative decisions; such a reservation may be withdrawn at
any time.
Articles 6, 9, 10 and 11
These Articles contain the usual final clauses in ICCS
Conventions.
It should be noted that, under Article 6, two ICCS member States
must ratify, accept, approve or accede to the Convention in order
for it to enter into force.