In a recent judgement dated April 24th, 2023, the Tunis Court of First Instance declined to grant legal gender recognition to a transgender man, asserting that there was insufficient evidence of a biological medical condition and dismissing gender identity disorder as a mental illness that does not fulfil the criteria for legal gender recognition. The Court based its reasoning on comparative law from Egypt, the European Court of Human Rights (ECHR), and religious opinions from Egypt’s esteemed Islamic authority, Dar Al-Ifta.
The plaintiff, identified as Ahmed, submitted medical reports attesting to his long-standing struggle with gender identity disorder since childhood despite undergoing extensive therapy to no avail. Ahmed made the decision to transition and pursue gender-affirming medical healthcare. However, financial constraints and limited healthcare options in Tunisia posed challenges, making it difficult to undergo a complete medical transition without seeking treatment abroad.
In its judgement, the Court initially aimed to establish a definition for the matter at hand, referred to as “sex change.” Emphasizing the absence of legislation regarding legal gender recognition for transgender individuals, the Court examined existing definitions from medical and ECHR perspectives to conclude that there is no fixed characterization of “sex change.” Nevertheless, it described the condition as follows: “a state in which an individual strongly believes that their gender differs from the one assigned to them at birth and can be referred to as Transsexualism.”
When referring to other Tunisian cases, the Court acknowledged the discussion of this issue in Case No. 10298 of 1993 in the Court of Appeal and Case No. 12304 of 2018 in the Tunis Court of First Instance. Analysis of these two judgements revealed contradictory legal opinions, with the first case rejecting the request for legal gender recognition and the second case accepting it. Consequently, the Court determined that there is no consistent legal precedent, particularly as these judgements originated from lower courts rather than the Tunisian Court of Cassation. Thus, the Court must independently deliberate the present case without reliance on previous judgements.
The Court engaged in a thorough discussion concerning the international standards pertaining to legal gender recognition for transgender individuals, with a particular focus on the direction provided by the ECHR. Conclusively, the Court determined that the ECHR has broadened the scope of the right to privacy, as outlined in Article 17 of the International Covenant on Civil and Political Rights and Article 8 of the European Convention on Human Rights, to include the right to legal gender recognition for transgender individuals. Moreover, the ECHR has introduced new terminology, such as “gender identity,” while not explicitly delineating the matter in a legal text, thereby rendering this direction merely an opinion of the ECHR.
Furthermore, the Court recognized the absence of explicit human rights and freedoms definitions. Nonetheless, the Court generally acknowledged that they encompass social, civil, and political rights, which the Tunisian Constitution guarantees. However, the Court did not believe that this guarantee extends to encompass the issue of “sex change.” The Court raised the question of whether social rights can extend the scope of the case to allow legal gender recognition for transgender individuals. After careful consideration, the Court concluded that such an allowance exceeds the right to privacy, as it impinges upon the rights of others. In other words, the individual right to privacy is outweighed by the overall rights of the greater society.
In further deliberations, the Court examined the plaintiff’s medical condition as a basis for its reasoning, ultimately asserting that the individual’s right to legal gender recognition does not outweigh the overall social rights of the larger society in cases of gender identity disorder. The Court noted that the plaintiff was assigned female at birth and developed typical female characteristics during puberty, including breast growth and menstruation, with irregular periods being their only biological concern. The Court also highlighted the gender-affirming medical treatments the plaintiff had undergone, which consisted of hormonal replacement therapy and certain surgeries. However, the Court underscored that the plaintiff had indicated a lack of completion in their transition since they had not undergone phalloplasty. Consequently, based on the plaintiff’s statements and the medical reports presented to the Court, it was determined that the plaintiff possessed fully developed female characteristics and underwent conventional puberty. The treatments received by the plaintiff were primarily driven by a psychological desire to transition to the opposite sex rather than a biological necessity.
Once it was established that the plaintiff’s condition was “mental” rather than “biological,” the Court proceeded to examine the matter from an Islamic law perspective. In doing so, the Court invoked the fundamental Islamic jurisprudential principle of “necessities overrule prohibition.” Applying this principle to cases involving “sex change,” the Court concluded that “sex change” can only be permitted when it is indispensable for safeguarding the individual’s well-being in instances of absolute medical necessity. According to the Court’s interpretation, the only situation where “sex change” can be authorized under Islamic law is in cases involving intersex individuals, given that their condition is biologically rooted and cannot be addressed without surgical intervention, unlike transgender individuals.
To support its assertion, the Court referenced the stance of the Egyptian judiciary and the Egyptian Dar Al-Ifta. Both bodies reject what they term “sex change,” which pertains to gender-affirming healthcare for transgender individuals, and instead only endorse what they refer to as “sex correction,” encompassing surgeries aimed at aligning intersex individuals with the binary. Notably, the Court singled out Dar Al-Ifta’s position, which categorizes any procedure that alters an individual’s sex as prohibited in Islam unless it is conducted to “reveal what is hidden of the true sexual organs due to congenital disability” in intersex individuals and not as a result of a mere desire to change sex, as in the case of transgender individuals.
The Court acknowledged some comparative legal precedents offering evidence that certain jurisdictions may permit legal recognition of gender based on gender identity. Nonetheless, the Court posed a critical question: “To what extent is it valid to modify one’s sex based on a psychological inclination to do so, and how can we prioritize an individual’s internal sentiments over their evident biological characteristics?”
Considering that legal judgments are grounded in observable and provable evidence rather than subjective emotions, the Court found it impossible to issue a ruling based solely on “feelings.” Furthermore, the Court doubted the plaintiff’s commitment to undergoing gender-affirming healthcare and seeking legal gender recognition, particularly due to the absence of a phalloplasty procedure. In the Court’s view, this lack of certainty regarding the plaintiff’s transition renders it reversible, leaving open the possibility that they may wish to revert to their “original biological sex” in the future. According to the Court, this scenario could lead to contradictory legal judgments, widespread confusion, and harm to society at large.
Hence, based on the above arguments, the Court denied the plaintiff’s request for legal gender recognition.
The Court’s rationale draws from previous cases, notably the Court of Appeal case, commonly referred to as Samia’s case, and the Tunis Court of First Instance case, popularly known as Ryans’ case. Even though the Court’s reasoning appears to deviate from the latter case, where a legal gender recognition request was granted, both Islamic and comparative law were invoked in analyzing and constructing the Court’s argumentation. Most importantly, in Ryan’s case, the Court invoked the “necessities overrule prohibition rule” to reach its conclusion, as is also the case here. The key differences lie in the medical documents presented by the plaintiffs in both instances. In Ryan’s case, medical documentation was submitted to demonstrate that Ryan had attempted suicide due to their profound rejection of their body and the urgent need for gender transition.
Consequently, the Court recognized that denying legal gender recognition could result in repeated suicide attempts and significant harm to Ryan. Additionally, medical documentation in Ryan’s case revealed that they had undergone phalloplasty and were able to engage in regular sexual intercourse with their partner, which the Court regarded as evidence of complete transition and irreversible change. This medical evidence made it more straightforward in Ryan’s case to invoke international human rights law, European Court of Human Rights judgments, and, notably, Islamic law to justify legal gender recognition.
The absence of similar medical documentation in the present case led the Court to incline towards rejecting legal gender recognition for two primary reasons. Firstly, the Court emphasized the possibility of reversibility of the treatments undergone by the plaintiff, and secondly, the lack of medical necessity to meet the requirement of Islamic law for gender-affirming healthcare and legal gender recognition. However, this approach raises a crucial question: would the Court have deemed the plaintiff’s condition to meet the necessity requirement if there were evidence of suicide attempts, as in Ryan’s case? It is possible that the Court would have been compelled to address the matter. Still, it is unlikely that such suicide attempts alone would have altered the Court’s underlying rationale to deny the request for legal gender recognition.
Significantly, the Court employed an intriguing line of reasoning to refute the plaintiff’s right to privacy by employing what could be described as a “fair balance doctrine.” Typically, courts pose the question of how to achieve a fair balance between an individual’s fundamental rights and the broader rights of the state and society.
In the present case, the Court posed a crucial question: can the right to legal gender recognition and gender-affirming healthcare be restricted for the benefit of Tunisian society at large? The Court answered this question in the affirmative. However, the rationale behind this answer lacked clarification and logical coherence. While the Court cited Egyptian Islamic doctrine to assert that the plaintiff’s transition violated Islamic law, it did not clearly state that such a violation would render the plaintiff’s individual rights in service of the greater society, only implying it. Moreover, the Court emphasized the absence of phalloplasty as an indication of the plaintiff’s uncertainty regarding their gender identity and their potential ability to revert to their “biological sex.”
However, the Court disregarded the fact that the plaintiff had fully transitioned through other medical interventions, such as hormone replacement therapy and significant surgeries like top surgery, as well as the plaintiff’s expressed intention to undergo phalloplasty in the future. Notably, the Court failed to consider the limitations of the Tunisian healthcare system, which provides no options for gender-affirming healthcare, necessitating transgender individuals seeking specialized surgeries to seek treatment abroad. This has been evidenced in earlier cases, where Samia underwent gender-affirming care in Spain, and Ryan pursued treatment in Germany.
Moreover, in its attempt to address the question at hand, the Court purposefully neglected to examine the significant detriment inflicted upon the plaintiff if they were not granted legal gender recognition. The plaintiff presents themselves and lives as male; however, due to the disparity between their gender identity and their legal documentation, their entire livelihood is affected. This discrepancy prevents them from accessing employment, housing, healthcare, or education. Furthermore, it renders the plaintiff more susceptible to both state and non-state harassment and violence.
Consequently, unlike the rights of the broader society, which the Court did not clarify, the plaintiff’s fundamental human rights and ability to lead an everyday life in Tunisian society are significantly undermined. It is evident, therefore, that the fair balance tilts more towards granting legal gender recognition than restricting the plaintiff’s individual fundamental human rights for the sake of the wider society. Despite the presented evidence that proves the seriousness of the plaintiff’s condition and transition, the Court resorted to the fair balance doctrine to deny the plaintiff’s right to privacy and, subsequently, the right to legal gender recognition, asserting that it was in the best interest of society. However, as mentioned before, the Court failed to provide a rationale for how the plaintiff’s transition could harm Tunisian society. Instead, the Court’s reliance on Islamic law, the concept of reversible transition, and medical necessity suggests that the judgment was influenced by socio-religious biases rather than being based on thorough legal and medical examination to determine any potential societal harm resulting from the plaintiff’s transition. Instead, it is plausible that the Court rejected the plaintiff’s request out of fear of possible disruption of the biological cis-heteronormative binary.
This judicial stance, which upholds the biological binary, is further evidenced by the Court’s characterization of the permissibility of “sex change” treatment in accordance with Islamic law. The Court allows such treatment for intersex individuals, who are already biologically outside the binary and have no other recourse but surgeries to “correct” their binary sex but denies it for transgender individuals based on their existing biological alignment within the binary. Consequently, the Court asserts that transgender individuals’ transition would disturb the prevailing order deemed acceptable by Islamic jurists and, in this particular case, by the Court as well.
Therefore, this ruling exemplifies the prevailing judicial orientation in the Middle East and North Africa region, which frequently aligns with the principles of Islamic law to deny legal gender recognition, often asserting that transgender individuals should not even have access to gender-affirming healthcare. Interestingly, the Court does acknowledge the existence of gender identity disorder, which it refers to as “Transsexualism.” However, it views it solely as a mental illness and does not examine its implications for the transgender individual or consider potential treatment options, such as gender-affirming healthcare. Such a judicial approach is also commonly encountered in MENA case law, where gender-affirming healthcare is either ignored as a treatment for gender identity disorder or the transgender plaintiff is chastised for pursuing it, with the suggestion being made that therapy, such as conversion therapy, should be employed to address their “mental illness.”
The analysis presented herein also underscores the necessity for establishing a legislative framework or a binding legal precedent in Tunisia that would facilitate the attainment of legal gender recognition through a concrete legal basis rather than being contingent on the subjective viewpoint of individual courts. Consequently, it is imperative to develop a robust strategy for strategic litigation that would result in a favourable ruling from either the Tunisian Court of Cassation or the African Court of Human Rights, of which Tunisia is a member. In this regard, such a strategy can effectively leverage past judgments, regardless of their outcome, as a means to identify critical legal avenues whereby to advocate for the legal recognition of gender identity for transgender individuals in Tunisia.
