Iași clinic performs its first ‘identity affirmation’ surgery / Challenges in legally changing gender identity in Romania / Lawyer: no regulated procedure, decision rests with judge / Romania faces condemnation at the European Court of Human Rights

Changing gender identity, specifically the Personal Numeric Code (CNP), first name, and sex in the birth certificate, can only be done in Romania following a definitive court decision. Iustina Ionescu, a human rights lawyer, stated for G4Media.ro that there is no legally regulated procedure in this regard, so the decision belongs to the judge, even though Romania was obliged by a 2021 European Court of Human Rights (ECHR) ruling to adopt legal provisions in this sense, but this has not happened yet. In Romania, there are about 100 gender change cases in the last six years. Today, a clinic in Iași announced that it has performed for the first time an ‘identity affirmation’ operation.

The ECHR’s decision in the case of X and Y against Romania primarily established that for changing gender identity, it is not necessary for the individuals requesting it to have undergone a sex reassignment surgery.

The European Court of Human Rights (ECHR) found in 2021 that ‘Article 8 of the Convention was violated due to the lack of a clear and predictable procedure for the legal recognition of gender identity that would allow for the change of sex, and therefore the name or the personal numeric code in official documents quickly, transparently, and accessibly. Additionally, the national authorities’ refusal to recognize the male identity of the applicants in the absence of a sex reassignment surgery led in this case to a breach of the just balance that the state is obliged to maintain between the public interest and the applicants’ interests.’

‘The Court notes that, in the procedures initiated by the applicants, the courts did not at all articulate their reasoning regarding the exact nature of the public interest that requires not allowing the legal change of sex, and did not perform, respecting the margin of appreciation granted, however narrow it may be, a balancing exercise of this interest with the applicants’ right to the recognition of their sexual identities. In these conditions, the Court cannot identify the public interest reasons that led to the refusal to reconcile the sexual identity of the applicants and the corresponding entry in the civil status registers. Of course, in its written observations before the Court, the Government indicated the public interest reasons that could apply in the case. However, it only presented them to justify the necessity of a judicial decision and, therefore, the judicial nature of the procedure, and not to justify the necessity of the sex reassignment surgery. Therefore, the Court considers that, in the circumstances of the present case, these reasons cannot repair the omission of the national courts.

(…) The national courts put the applicants, who did not want a sex reassignment surgery, in front of an impossible dilemma: either to undergo, despite their own desire, this intervention, and to give up the full exercise of the right to respect for physical integrity, which particularly pertains to the right to respect for private life guaranteed by Article 8 of the Convention, but also by Article 3 of the Convention, or to give up the recognition of their sexual identity which also pertains to the right to respect for private life. In the Court’s opinion, this situation reflects a breach of the just balance that the States Parties are obliged to maintain between the public interest and the interests of the persons concerned,” the ECHR decision stated.

Iustina Ionescu, a human rights lawyer, explained to G4Media.ro that Romania has not adopted a legal framework in this regard, even after the ECHR’s decision in 2021, which was followed by a similar decision in April 2023 (Csata v. Romania), and currently, another similar case is ongoing at the European Court. Romania is now under the supervision procedure of the Council of Ministers, following the non-implementation of the ECHR decision, explained lawyer Iustina Ionescu.

The only legal mention of this possibility is in Law 116 of 1996 on civil status documents, which in Article 44 letter i states that changes in a person’s civil status can be made for ‘gender change, after the final and irrevocable court decision’. Therefore, the law does not establish a clear and predictable procedure but leaves it to the discretion of the judge to decide whether a person can change their gender identity.

Lawyer Iustina Ionescu pointed out that there have been court decisions that have rejected this change, invoking that the respective individuals have not undergone sex reassignment surgery. In 2017, the ECHR ruled against France, establishing that the state cannot compel a person to undergo irreversible medical procedures.

Following this decision, starting in 2018, courts in Bucharest began to accept favorable decisions for individuals requesting gender identity changes, without requiring sex reassignment surgery, but based on a solid medical file, including treatments followed with a psychologist, psychiatrist, endocrinologist, hormone treatments.

Iustina Ionescu explained that some transgender individuals only resort to hormone treatments, which are also very costly. Few people undergo sex reassignment surgery, because, for now, in Romania, these are at an experimental level.

‘In recent years, there is a practice in Bucharest to accept these requests, but this does not guarantee that this practice is applied by every judge in the country. Nothing is certain until it is written into law,’ emphasized lawyer Iustina Ionescu.

According to her, over a hundred such cases have been initiated in Bucharest in the last 6 years. These can last between one and two and a half years. And if the decision is negative, the only solution left is to open a case at the ECHR, which can take up to 7 years.

Context.

The Arcadia Medical Network announced on Tuesday, in a press release, that a team of specialists within the network successfully completed at the end of 2023, for the first time in Iași, a gender affirmation surgery for a 19-year-old patient. The surgical procedure took place at the Arcadia Hospital in Iași, lasted 3 hours, and represents a direct response from the medical team to the needs of transgender individuals opting for this medical procedure, the source stated.

‘Studies show that transgender individuals who undergo a sex affirmation surgery reap long-term benefits in terms of mental health. Annually, the likelihood of such an individual needing psychological treatment has decreased by approximately 8% after undergoing a sex affirmation procedure. However, sex change procedures are quite rare in Romania while internationally the number of these has increased.

According to Statista, in 2019, the European average of transgender individuals who publicly admitted to having undergone a gender affirmation surgery was 27%. In contrast, the percentage of these patients was higher than the European average in countries such as Finland, Denmark (29%), Belgium (35%), Malta, the United Kingdom, Sweden, Czech Republic (36%), Luxembourg (42%), Germany, Austria (46%), and the Netherlands (48%)’, the statement said.

According to the clinic’s representatives, the patient operated in Iași, for a long time, wore a binder that helped flatten the breasts to contour the chest more closely to the male one. In parallel, he underwent hormonal treatment that led to increased hair growth. The procedure was complex and involved a mastectomy and masculinization of the chest.

In the first stage, there was a bilateral subcutaneous mastectomy with a double incision, complemented by a liposuction procedure, redistribution of skin flaps, and redefinition of the pectoral. The areola-nipple complex was resized and repositioned higher to preserve masculine landmarks that complemented the chest masculinization process.

‘Gender affirmation surgery refers to interventions that contribute to the transition to the self-identified gender. Options for sex affirmation can include facial surgery, chest and breast area surgery, or genital area surgery. Transgender surgery interventions are preceded by specific treatment protocols and rigorous evaluations that lead to an extensive medical file, the basis for a surgical intervention opinion and an extended process of psychological, hormonal, and physical transformation. In the case of female-to-male transgender surgery, reconstructive facial surgery aims to masculinize facial features. The main goal of breast surgery is to remove breast tissue and masculinize this area. Last but not least, genital surgery transforms and reconstructs the genital organs’, declared Dr. Costel Dobre, primary doctor in Plastic Surgery, Reconstructive Microsurgery, and Aesthetics, Arcadia.

In Romania, patients who wish to undergo sex affirmation surgeries need, in the first phase, an evaluation report prepared by a psychiatrist or a mental health specialist. This report receives the approval of the specialist doctor after the patient is fully aware and determined to undergo the surgical treatments for sex affirmation interventions. Once this approval is obtained and after the patient undergoes a series of medical investigations that declare him healthy and fit to undergo these interventions, he can begin the surgical treatments for sex change and, if necessary, visits to the endocrinologist for hormone treatment.