LGBT+ Rights Discussion Group: The Consensus Trap: How Constitutional Entrenchment Undermines the ECtHR’s Margin of Appreciation in Intersex Cases

In Y v. France (2023), the European Court of Human Rights left the legal recognition of intersex persons largely to national legislatures. The Court reasoned that, without a European consensus on a third marker, the respondent State should decide the pace and extent of reform. Two years later, Slovakia amended its Constitution to state that it “recognises only the biologically determined sexes of male and female.” The provision does not say which biological criteria apply. Its implications for people whose sex characteristics do not fit typical definitions of male or female have received little attention. Notably, it was adopted in the same year as the Council of Europe’s Recommendation on Equal Rights for Intersex Persons. The talk uses the Slovak amendment to revisit the Court’s reasoning. If the Court defers to States because it expects domestic law to keep evolving, what happens when a constitutional rule settles the question in advance? The talk reviews the factors that, in the Court’s case law, narrow a State’s margin of appreciation, and asks how they might apply here. It also considers whether Article 14, which the Court seldom examines on its own in this area, could offer a useful additional lens on the position of intersex persons. Several European States are now debating whether and how sex should be defined in law. The Slovak case study may help show what such choices mean for intersex persons and how the Convention system might respond.

Igor Hron is an Assistant Professor at Comenius University Bratislava, Faculty of Law, Department of Legal History and Comparative Law. He is a member of the research project on the self-determination of intersex, trans and non-binary individuals, funded by the Slovak Research and Development Agency – APVV-23-0252 (2024–2027). Within the project, he focuses on human rights and comparative perspectives.