Top court offers advice on gender change struggle

It’s not every day that a court gives helpful advice to unsuccessful litigants on other ways to achieve their goal. But judges of the Seychelles Court of Appeal – the highest judicial forum in that country – have gone out of their way to help someone who was turned down, first by government officials, then by the Supreme Court and finally by the appeal court itself.

Mervin Jezabel Barbe, the woman at the heart of the story, is transgender. Born in Seychelles in 1972, she moved to Italy and had gender re-assignment surgery in 2003. In 2007 the Italian courts recognised her changed gender and later that year she obtained an Italian identity card reflecting the change.

Then Barbe came home and applied to the civil status office in Seychelles for a change of middle name from Jackson to Jezabel. That was approved by a ‘marginal entry’ on her birth certificate in 2010, but when Barbe asked the same office to change her gender record from male to female, they refused.

At the Supreme Court she had no better success. Referring to Barbe throughout as ‘he’, Judge Crawford McKee found the law on civil status had no provision for someone to change their birth gender unless the original entry was an error. Nor could provisions allowing for a change of name be used for this purpose, said the judge.

Though new laws in SA and the UK allowed consideration of such a change, and new procedures in France permitted a change in gender to be dealt with administratively, there were no such provisions in Seychelles. Gender information on Barbe’s entry correctly reflected the situation as at the time of birth, therefore that was the end of the matter and the action had to be dismissed.

The approach of this eight-paragraph decision contrasts sharply with that of the judges of the Appeal Court. Take the question of language. Yes, they refer to Barbe as ‘he’ in the initial paragraphs where the court described, for background, the documentation completed at birth, but from the time the court mentions the surgery in Italy, Barbe is referred to as ‘she’.

President of the Appeal Court, Francis MacGregor, wrote the decision with the agreement of two colleagues. They pointed out that their judgment included a number of references to how the law dealt with gender change in other countries, and said these references were included ‘for the benefit of research and analysis’.

That is certainly the impression created by the decision: someone researching how such a situation is handled in other countries with a rights-based approach, would find much that is useful. Some countries allow the original birth certificate to be changed, for example. Others permit a ‘marginal entry’. In some an ‘amended birth certificate’ can be issued, without changing the original. But as far as Seychelles is concerned, the court concluded, the law was ‘very much unsettled’ and it was as yet far from clear ‘which path to tread’.

MacGregor said ‘we’ – the whole court – acknowledged Barbe’s plight and recommended to Parliament that consideration be given to the needs of Barbe and others like her. ‘In the Seychelles of today’, they asked, was there not justification for recognising gender change, in conformity with the charter of human rights in the Constitution? Over time there had been ‘an element of acceptance’ of transgender people ‘and their rights as citizens to be treated equally’.

But as well as urging that the legislature should act, the court was generous with its advice to Barbe. The judges point out that Barbe’s lawyers submitted in argument that they would be happy with a mere ‘marginal entry’ on the birth certificate – a solution not proposed, and thus not considered, in the Supreme Court. Such a solution – a ‘marginal entry’ – might however ‘be considered in another application’ to the civil status office or to a judge, the Appeal Court said, with a nod and a wink to Barbe’s legal team that they try again.

Later the judges point out that the Constitution provides for equal protection and quote from its provisions that equal protection ‘shall not preclude any law, programme or activity which has as its object the amelioration of the conditions of disadvantaged persons or groups’. Barbe could consider pursuing her case in the Constitutional Court using this section as a basis, say the judges, even suggesting that she could add an argument on the breach of her ‘inherent right to respect of her private life and dignity’.

There was yet another helpful idea: ‘An alternative route for (Barbe) might be in the consideration of the … Civil Status Act’, section 10, which provides that ‘The chief officer of the civil status shall register or cause to be registered all births, marriages and deaths and all other acts connected with … civil status’ in Seychelles.

In their view, this section is much broader than the section under which Barbe originally brought her action: perhaps she would have had more success hanging her application on this provision, they suggest. And in a final thought, they point out that the law allows acts of civil status ‘drawn up abroad’ to be considered under the Civil Status Act – this appears to be a reference to Barbe’s being recognised as female in Italy, and to this being a possible ground that she could use in a fresh application to the courts in Seychelles.

What will happen now is unclear: Seychelles is a reasonably conservative country with a strong Catholic influence. Yet its tolerance is widely acknowledged. Its President spoke strongly last year, urging the national assembly to cancel a law, imposed by the British in 1955, criminalising homosexuality and providing for up to 14 years in jail. While the law was no longer enforced it remained on the statute books. ‘This is an aberration,’ he said at the time, ‘(w)e are not a homophobic country.’ The Constitution guaranteed the protection of all citizens, without discrimination and, as a secular and democratic country, Seychelles had international as well as national constitutional obligations to fulfil.

The law’s easy repeal was welcomed by the Seychelles LGBTI community, and local media quoted one official as saying it paved the way for same-sex marriage and adoption.

Clearly then, the courts and the national assembly are open to change. It might take some time but with the various legal options now apparent, not to mention the possibility of new statutory provisions, the plight of Barbe and others in a similar position, is surely headed for a satisfactory resolution.

– CARMEL RICKARD
(first published in Legalbrief, 3 October 2017)

Mervin J Barbe v Chief Officer Civil Statu(PCA)-11-8-17

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