Discriminatory aspects of medical requirements for legal gender recognition in the European legal context

This article examines medical requirements for legal gender recognition in the European legal context, with particular attention to mandatory surgical procedures resulting in the loss of reproductive capacity. It asks whether, and in what sense, such requirements may amount to discrimination, and more broadly whether the case law of the European Court of Human Rights adequately captures their equality dimension when addressing them primarily under Article 8 ECHR. The analysis first situates the problem within a theoretical framework concerned with identity and the conditions of legal recognition. It then outlines selected legal approaches to gender recognition in Europe and examines medical requirements in the ECtHR’s case law. The article argues that, although the ECtHR has strengthened the protection of bodily integrity and personal autonomy, it has addressed the discriminatory dimension of such requirements under Article 14 ECHR only inconsistently. It concludes that the issue extends beyond compulsory surgery because medicalised conditions of legal recognition may themselves impose an unequal burden on transgender persons by making legal recognition dependent on external validation of their gender identity.