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SUMMARY:
The applicant is a Swiss national who was born in 1937 and lives in Aarau (Switzerland). She was registered at birth
under the name Max Schlumpf, of male sex. The case concerned the applicant's health insurers' refusal to pay the costs of
her sex-change operation on the ground that she had not complied with a two-year waiting period to allow for reconsideration,
as required by the case-law of the Federal Insurance Court as a condition for payment of the costs of such operations.
The
applicant submitted that the psychological suffering caused by her gender identity disorder went back as far as her childhood
and had repeatedly led her to the brink of suicide. In spite of everything, and although by the age of about 40 she
was already certain of being transsexual, she had accepted the responsibilities
of a husband and father until her children had grown up and her wife had died of cancer in 2002. The applicant decided in
2002 to change sex and from then on lived her daily life as a woman. She began hormonal therapy and psychiatric and endocrinological
treatment in 2003.
An expert medical report in October 2004 confirmed the diagnosis of male-female transsexualism and
stated that the applicant satisfied the conditions for a sex-change operation. In November 2004 the applicant asked SWICA,
her health insurers, to pay the costs of the sex-change operation, and supplied a copy of the expert report. On 29 November
2004 SWICA refused to reimburse the costs, noting that according to the case-law of the Federal Insurance Court the mandatory
clause providing for reimbursement of the costs of a sex-change operation which health-insurance policies were required to
include applied only in cases of "true transsexualism", which could not be established until there had been an
observation period of two years.
On 30 November 2004 the applicant
nevertheless successfully underwent the operation. In mid-December 2004 she again applied to
SWICA, who again refused. In late January 2005 the applicant appealed unsuccessfully against that decision. She attempted
to show that at the stage medical science had then reached it was possible to identify true cases of transsexualism without
waiting for two years to elapse.
She also proposed that the Senior Consultant of the Zurich Psychiatric Clinic be
asked to give evidence in the context of a further investigation. On 14 February 2005 the applicant's civil status was modified
to reflect her sex-change and she was registered under the forename of Nadine.
In early April 2005 the applicant appealed
to the cantonal insurance court and asked for a public hearing. When the cantonal insurance court informed her of the possibility
of sending the case back to the health-insurers for a further investigation the applicant withdrew that request in the event
of the case being remitted. However, she said that waiver would not apply if the case were to go to the Federal Insurance
Court or the European Court of Human Rights.
In June 2005, without holding a hearing, the cantonal insurance court
set aside the health- insurers' refusal to pay the costs of the sex-change operation and remitted the case for a further investigation
and reconsideration. In July 2005 SWICA appealed to the Federal Insurance Court, arguing that the cantonal insurance court
had disregarded the Federal Court's case-law to the effect that costs could only be reimbursed after a period of two years
and submitting in addition that the existence of an illness had not been established.
In September 2005 the applicant
explicitly asked the Federal Insurance Court for a public hearing and requested that it call expert witnesses to answer questions
on the treatment of transsexualism. Her request was refused, among other reasons because the Federal Court considered that
the relevant issues were legal questions, so that a public hearing was not necessary. It also reaffirmed the pertinence of
the two-year observation period. It noted that despite what various experts had submitted during the proceedings and the stage
modern medical science had reached, caution was vital, given in particular the irreversibility of the operation and the need
to avoid unjustified operations.
The Federal Insurance Court noted that at the time of the operation the applicant
had been under psychiatric observation for less than two years and held that the health-insurers had been justified in refusing
to reimburse the costs.
Relying on Article 6 § 1 (right to a fair trial), the applicant complained of an infringement
of her right to a fair trial and to a public hearing. She further alleged that a fair balance had not been preserved between
her interests and those of her health-insurers, contrary to Article 8 (right to respect for private life).
Article
6 § 1
The Court considered that it was disproportionate not to accept expert opinions especially as it was not
in dispute that the applicant was ill. By refusing to allow the applicant to adduce such evidence, on the basis of an abstract
rule which had its origin in two of its own decisions in 1988, the Federal Insurance Court had substituted its view for that
of the medical profession, whereas the Court had previously ruled that determination of the need for sex-change measures was
not a matter for judicial assessment.
The Court held that the applicant's right to a fair hearing before the Federal
Insurance Court had been infringed, contrary to Article 6 § 1.
The Court reiterated that the public nature of judicial
proceedings was a fundamental principle of any democratic society and emphasised a litigant's right to a public hearing at
at least one level of jurisdiction. It observed that the applicant could not be considered to have waived the right to a public
hearing before the Federal Court.
The Court observed that as the question of the applicant's sex-change was not an
exclusively legal or technical matter, and given the difference of opinion between the parties as to the necessity of the
observation period, a public hearing was necessary.
Consequently, the Court held that the applicant's right to a public
hearing had not been respected, contrary to Article 6 § 1.
Article 8
The Swiss Government submitted
that in order to restrict health-insurance costs in the general interest it was necessary to place limits on the services
to be reimbursed. The applicant submitted that her age justified an exception and asserted that she had not learned of the
two-year waiting period until after the operation.
The Court considered that the period of two years, particularly
at the applicant's age of 67, was likely to influence her decision as to whether to have the operation, thus impairing her
freedom to determine her gender identity.
It pointed out that the Convention guaranteed the right to personal self-fulfilment
and reiterated that the concept of "private life" could include aspects of gender identity. It noted the particular importance
of questions concerning one of the most intimate aspects of private life, namely a person's gender identity, for the balancing
of the general interest with the interests of the individual.
The Court considered that respect for the applicant's
private life required account to be taken of the medical, biological and psychological facts, expressed unequivocally by the
medical experts, to avoid the mechanical application of the two-year delay. It concluded that, regard being had to the applicant's
very particular situation, and bearing in mind the respondent State's latitude in relation to a question concerning one of
the most intimate aspects of private life, a fair balance had not been struck between the interests of the insurance company
and those of the applicant.
There had therefore been a violation of Article 8.
Article 41
In
accordance with Article 41 of the Convention (just satisfaction), the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary
damage and EUR 8,000 for costs and expenses.
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