Transgender men will not be able to access LDCs, the Constitutional Council decides

Those who are called the “Sages” have decided … A man of marital status with a uterus will not be able to access medically assisted procreation (MAP). In fact, on 8 July 2022, the Constitutional Council deemed the 2021 bioethics law to be compliant, excluding transgender men from MAP but also self-preservation of gametes (eggs or sperm).

As a reminder, the French institute in charge of ensuring compliance laws to the Constitution, it had been seized in this regard by the Information and Action Group on Procreative and Sexual Issues (Giaps). An exceptional hearing was even held on June 28. The lawyer Giaps and the representative of the government then confronted their arguments. Madmoizelle had covered the event in this previous article.

For the Constitutional Council, refusing PMA to transgender people is not contrary to the principle of equality

On July 8, 2022, before making his decisionthe Constitutional Council recalled this “the applicant association”Giaps accuses the new bioethics law of depriving access to LDCs “for single men or couples” And this would apply although those of them who, born to marital status, have changed the mention of their sex, may be able to carry a pregnancy to term. ”

As recalled by the Council of Elders, Giaps denounces a measure he has introduced “Unjustified difference in treatment between persons with gestational capacity according to the mention of their sex in the marital status ” that would “contrary to the principles of equality before the law and of equality between men and women”.

Especially since the law of November 18, 2016, is authorized to change the mention of sex in the marital status, without any medical intervention.

But these arguments failed to convince the Sages which concluded that:

” LThe principle of equality does not preclude the legislator from regulating situations differently or from derogating from equality for reasons of general interest, it being understood that, in both other cases, the resulting difference in treatment is directly related to the purpose of the law establishing it. “

Giaps’s anger and the appeal to the European Court of Human Rights

The JAPs reacted promptly, on July 8, 2022, through a press release, reiterating that the exclusion of transgender people would, in their opinion, undermine to the constitutional principle of equality between men and women (al.3 of the preamble of the 1946 Constitution), to personal freedom (Article 2 and 4 of the Declaration of Human and Citizen Rights) and the right to lead a normal family life (al. 10 of the preamble of the 1946 Constitution). “

So is the decision of the Constitutional Council, again according to Giaps bad omen for the future of gender equality:

“In his decision today, the Constitutional Council believes that the legislator “held, in the exercise of its competence, that the difference in the situation between men and women, with regard to the norms of marital status, could justify a difference in treatment” (§ 8). By doing so, the Constitutional Council comes to nullify the constitutional principle of equality between the sexes. “

A final appeal is possible for the Bar Association: go to the European Court of Human Rights. Giaps is convinced of this, France would expose itself to a new condemnation. Indeed, in Spain, Belgium or the Netherlands, for example, access to the MAP does not depend on gender criteria in marital status. About twenty European countries would also allow it legally, according to the independent Spanish foundation Civio. The hexagon, still lagging behind a progressive reform? Apparently.

Image in One: demonstration on February 21, 2021 – © Maëlle Le Corre