Litigation Degree: First
Case No: 36646/2023
Issuing Court: Court of First Instances
Judgment: Unfavorable, the request for legal gender recognition was denied
Judgment Date: 24/04/2023

Summary:

The plaintiff, Ahmed, initiated a lawsuit before the Tunisian court seeking a modification of his name and gender on official papers and documents, in line with the previous gender-affirming surgeries he underwent in 2014 and 2016. The plaintiff acknowledged before the court that he has experienced gender identity disorder since childhood and has also suffered from hormonal dysfunction from a young age. However, the court dismissed the case based on the opinion of the Egyptian Advisory House, which states that sex changes should only be permitted in cases of urgent medical necessity.

Facts:

The plaintiff filed a petition before the Tunisian court of first instance seeking legal gender recognition from female to male on official documents and records. This request follows the plaintiff’s gender-affirming surgeries, which were undertaken due to long-standing suffering caused by gender identity disorder. The plaintiff has experienced this disorder since childhood, specifically from the age of 6, resulting in hormonal dysfunction and the development of a male voice during puberty. A medical examination further confirmed that the plaintiff has experienced neurological dysfunction related to female hormones, leading to menstruation occurring only once a year. The plaintiff has also sought psychiatric treatment for a period of 6 years with the expectation that accepting a female identity would be possible upon marriage, as suggested by the treating psychiatrists. Additionally, the plaintiff traveled to Egypt and underwent a comprehensive medical examination focusing on the glands and reproductive system. This examination confirmed the presence of a gender identity disorder and recommended that the plaintiff undergo a gender-affirming procedure. Upon returning to Tunisia, the plaintiff sought guidance from the mufti of the Republic, who affirmed that in cases of urgent medical necessity, the plaintiff would be authorized to undergo appropriate gender-affirming procedures. Consequently, the plaintiff underwent a mastectomy in 2014, a hysterectomy in 2016, and has received ongoing hormonal treatment.

Judgment:

The case was dismissed by the court on several grounds, with the most significant being the absence of the term “sex change” in Tunisian legislation, except for Act No. 3 of 1975, which pertains to civil status and includes provisions regarding the name and sex recorded on personal identification documents, birth certificates, passports, and others. The court determined that “sex change” refers to the psychological experience of desiring to align one’s physical body with one’s gender identity. Furthermore, the court noted that the European Court of Human Rights has incorporated Article 17 of the International Covenant on Civil and Political Rights and Article 8 of the European Convention on Human Rights in cases involving gender-affirming procedures. These articles guarantee the right to respect for one’s private life and gender identity. Additionally, the court recognized that the Tunisian Constitution upholds and safeguards the personal rights of citizens, although it does not specifically address the right to change one’s sex. The court also referenced Egyptian legal precedents and the principles of Islamic law, which require a medical necessity for sex correction procedures. According to an advisory opinion from the Egyptian Dar Al-Ifta, such procedures should only be performed if the genitals exist but are concealed, with the purpose of revealing them rather than transplanting artificial organs. Consequently, the court rejected the plaintiff’s claim.