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Publication:2003-VII
Title:Van Kück v. Germany
Application No:35968/97
Respondent:Germany
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:12-06-2003
Articles:6-1
8
14
41		Conclusion:Violation of article 6-1
Violation of article 8
Not necessary to examine article 14
Compensation awarded
Keywords:FAIR TRIAL / PRIVACY / DISCRIMINATION

Summary:
(Press release)
Courts' refusal to order reimbursement of top-up costs of transsexual's gender re-assignment treatment
The applicant, Ms Van Kück, who lives in Berlin, was born male in 1948. She changed her first names to Carola Brenda in December 1991. The following year she sued a health-insurance company for reimbursement of the cost of hormone treatment and a declaration that the company was liable to reimburse 50% of the cost of gender re-assignment surgery. Her claim was rejected by the Regional Court on the ground that this could not reasonably be considered as necessary medical treatment: it had not been conclusively shown that it would relieve her condition and she should have tried extensive psychotherapy first. The Court of Appeal upheld that decision and added that Ms Van Kück was not entitled to reimbursement because she had caused the disease herself. In that respect it referred to the fact that she had started to take female hormones, without medical advice, only after discovering that as a man she was sterile. In the meantime Ms Van Kück underwent gender re-assignment surgery. Her subsequent appeal to the Constitutional Court was unsuccessful.

She complained, under Article 6 § 1 (right to a fair hearing) of the Convention, that the German court proceedings had been unfair. She also complained of a breach of Article 8 (right to respect for private life) and of Article 14 (prohibition of discrimination) combined with Articles 6 § 1 and 8.

In the Court's view, the German courts should have requested further clarification from a medical expert. With regard to the Court of Appeal's reference to the causes of the applicant's condition, it could not be said that there was anything arbitrary or capricious in a decision to undergo gender re-assignment surgery and the applicant had in fact already undergone such surgery by the time the Court of Appeal gave its judgment. The proceedings, taken as a whole, had not satisfied the requirements of a fair hearing.

The central issue with regard to Ms Van Kück's complaint under Article 8 was the courts' application of the criteria for reimbursement of the medical costs of gender re-assignment surgery and not the legitimacy of such measures in general. Furthermore, what mattered was not the entitlement to reimbursement as such, but the impact of the court decisions on the applicant's right to respect for her sexual self-determination. Without hearing further expert medical evidence, both the Regional Court and the Court of Appeal had questioned the medical necessity of gender re-assignment and the Court of Appeal had additionally, on the basis of general assumptions as to male and female behaviour, concluded that the applicant had deliberately caused her condition of transsexuality. Since gender identity was one of the most intimate aspects of a person's private life, it appeared disproportionate to require Ms Van Kück to prove the medical necessity of the treatment. No fair balance had been struck between the interests of the insurance company on the one hand and the interests of the individual on the other.

The Court held, by four votes to three, that there had been a violation of Article 6 § 1 and Article 8 and, unanimously, that no separate issue arose under Article 14. It awarded the applicant EUR 15,000 for non-pecuniary damage and EUR 2,500 for costs and expenses.

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Last Modified: 26-02-2013 10:24:53 (Documentation SIM)