A priority question of constitutionality had been asked by the GIAPS association, which considered that the criterion of being a woman in the civil status to access medically assisted procreation, criterion provided for in the last bioethics law, Achievement of the principle of equality between women and men.
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A year after the vote of window Bioethics law , opening access to medically assisted procreation (PMA) with third parties to couples of women and single women, the Constitutional Council was called upon to decide on one of its provisions: that of defining as Criterion for access to these techniques, in particular, being a woman in civil status.
With such a formulation, which removes transgender men from PMA always having female reproductive functions, does the law undermine the principle of equality between women and men? And is she thus obstructing the right to lead a normal family life of transgender men? Seized of a priority question of constitutionality (QPC), the Constitutional Council answered by judging the disputed provisions in accordance with the Constitution, Friday July 8.
The information and action group on procreative and sexual questions (GIAPS), at the origin of the QPC, reproached article L. 2141-1 of the public health code to introduce a difference in treatment between people On the only basis of the mention of their sex in civil status, thus ignoring the principle of gender equality. A reasoning which leads to “destroy the principle of equality between women and men” and actually leads to discrimination against transgender men, had pleaded M e magaly lhotel for the giaps during the Audience, Tuesday, June 28. This is not the opinion of the Constitutional Council, which recalls in its decision that “the principle of equality does not oppose that the legislator regulates differently from different situations, nor to what it derogates from Equality for reasons of general interest, provided that, in both cases, the resulting difference in treatment is directly related to the object of the law that establishes it “.
Objective of general interest
In its argument, the giaps noted that, since the Law of November 18, 2016, which simplified the procedure for changing the civil status by no longer requiring medical treatments, surgical operation or sterilization, “men in civil status (…) have gestational capacities similar to those of women”. “It’s been five years and, since then, there have been trans men who have kept this uterus, as a couple with other men, who led pregnancies and who have had children. The civil status officers, on Instruction of the prosecution, established the birth acts of these children and a parentage link with these men who gave birth to their child (…), the choice of the legislator was to decorrect the concept of procreation of the concept of civil status “, explained M e Magly Lhotel, pleading for a consistency of the texts.
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