Gender Identity, Asylum and the ECHR
A Critical Doctrinal Analysis of Extraterritorial Gender Rights
DOI:
https://doi.org/10.14296/ac.v7i1.5838Abstract
This article explores the jurisprudence of the European Court of Human Rights (ECtHR) in relation to gender identity and asylum. It argues that the right to privacy and moral autonomy under Article 8 of the European Convention on Human Rights must be interpreted to include public expressions of sexual and gender identity. As such, presentation, recognition and social expression are intrinsic to one’s identity, preference and desire, particularly for trans and gender non-conforming individuals. The first part of the article examines post-Goodwin ECtHR case law on gender identity to clarify the scope of protection offered under the Convention. The second part analyses the extraterritorial application of Article 8 in asylum cases, focusing on sexuality-based claims and the absence of trans-specific case law. The article concludes by highlighting that the performance and recognition of gender identity in public spaces is inseparable from the exercise of Convention rights and must be legally protected in asylum contexts. The blurring of the public/private divide is particularly critical where validation by state and society affects one’s gender expression and risk of persecution.
Keywords: gender identity; asylum; ECHR; privacy; Article 8; trans rights; public/private divide; moral integrity; persecution; legal recognition.
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