Европейский суд по правам человека
8 января 2009 года
Facts
The applicant was registered at birth under the name Max Schlumpf, of male sex. The applicant decided to change sex and from then on had lived her life as a woman. She began hormonal therapy and had been receiving psychiatric and endocrinological treatment. The doctor confirmed the applicant satisfied the conditions for a sex-change operation.
The applicant asked her health insurers to pay the costs of the operation. They refused on the ground that under the case-law of the Federal Insurance Court the mandatory clause which health-insurance policies were required to include for reimbursement of the costs of a sex-change operation applied only in cases of “true transsexualism”, which could only be established after a 2 year observation period during which the patient was required to receive psychiatric and endocrinological treatment.
Following an operation the applicant applied to her health insurers again and a court process followed. The court overturned the insurer's refusal to cover the operation, acknowledging the applicant's diagnosis. However, the Federal Insurance Court reversed this decision, citing the applicant's failure to meet the observation period and denying her request for a public hearing and expert witnesses.
Complaint
The applicant complained that her right to be heard had been infringed, that the Court had arbitrarily substituted its own judgment for that of the medical experts, and that there had been no public hearing before the court of first instance. She invoked Article 6 (1) of the Convention. The applicant also alleged a violation of Article 8 regarding the 2-year observation criterion.
Court’s ruling
The Court found multiple violations. First, it had been disproportionate not to accept expert opinions. By refusing to allow the applicant to present such evidence, on the basis of an abstract rule which had its origin in 2 of its own earlier decisions, the national court had substituted its own view for that of the doctors and psychiatrists, even though the Court had previously ruled that determination of the need for sex-change measures was not a matter for judicial assessment. Consequently, the applicant had not had a fair hearing before the national court.
Determination of the need for a sex change could not be regarded as a purely legal issue and not so technical a process as to justify an exception to the right to a public hearing, especially as the parties did not agree on the need for an observation period. The applicant had been denied a public hearing before the domestic courts.
The central issue in the case was the way the national court had applied the criteria governing the reimbursement of medical costs. It had relied on a criterion without any statutory basis which it had established in its own case law. When insisting on compliance with the observation period, the national court had refused to carry out an analysis of the specific circumstances of the applicant’s case or to weigh up the various competing interests. The domestic authorities should have taken the specialists’ opinions into account to determine whether an exception should be made to the rule, in view of the applicant’s relatively advanced age and her interest in having an operation without delay. Further, the national court had failed to consider the medical advances that had been made since its previous judgments. The Court concluded that a fair balance had not been struck between the insurance company’s and the applicant’s interests.