Litigation Degree: Second
Case No: Appeal No 10298/1993
Issuing Court: Court of Appeals
Judgment: Unfavorable, the request for legal gender recognition was denied
Judgment Date: 22/12/1993

Summary:

The plaintiff, Samia, commenced legal proceedings before the Tunisian court of First Instance in pursuit of a name change from Sami to Samia, as well as a change of gender from male to female on official documents. However, the court rejected the claim on grounds that these modifications would violate Islamic sharia law, public order, and moral standards. Subsequently, the plaintiff filed an appeal against this decision, but the Court of Appeal upheld the initial court’s ruling, thereby dismissing the appeal.

Facts:

The plaintiff (Samia), a native of Hallaq Al-Wadi in Tunis, has presented with female traits from an early age. In order to align her physical appearance with her gender identity, the plaintiff underwent gender-affirming surgeries in Spain on 2/5/1992, transitioning from male to female. Additionally, the plaintiff underwent a medical examination at Charles Nicole Hospital in Tunisia, which confirmed that her genitals are female. Subsequently, the plaintiff initiated legal proceedings to request a change of name and gender marker in official documents and records.

Judgment:

The Court of First Instance, on 8/2/1993, dismissed the case based on previous judgments of the French judiciary, which also dismissed the claims for sex change. The Court initially relied on Islamic sharia and jurisprudence but found no regulations governing sex reassignment in the jurisprudence. Consequently, the Court relied on other grounds to establish the applicant’s gender identity. In its judgment, the Court based its decision on the potential violation of the principles of Islamic Sharia, public order, and morals if a sex change were approved. It argued that such approval would bring into question the fundamental element of society, the family. Following the Court’s dismissal of the case, the plaintiff appealed against the decision of the Court of Appeal, filing appeal No. 10298. On 22 December 1993, the Court of Appeal dismissed the case and upheld the judgment of the Court of First Instance. The Court of Appeal affirmed the assertions of the first instance Court, stating that the sex changes to which the plaintiff was subjected were not of urgent medical necessity, they constituted an artificial change, and they infringed upon community order as per Islamic law.