The Rights of Intersex Persons to Establish a Family under Albanian Law. Practice of the ECHR

  • Dr.Sc. Jorida Xhafaj ILIRIA College
Keywords: intersex persons, marriage, family, practice of ECHR


identity is the way in which a person is self-identified with a gender category, as for example to be female or male, or in some cases intersex, which is none of the distinguishable biological sexes. In principal, intersex persons are part of the society with their rights and obligations, which are not the same with those of the other members of society, in special areas of life.

This paper aims to treat the right of intersex persons to marriage and to establish a family. The paper begins with an overview of definition of intersex persons, their rights, and focuses primarily on the right to establish a family.

The right for a family life has found protection in the Albanian national legislation. The Constitution of theRepublicofAlbaniaof 1998 in its Article 53 stipulates that "everyone has the right to marry and have a family" establishing the principle of equality before the law, closely linked to the principle of non-discrimination. The legal provisions set a controversial position on the right to get married and to establish family relationships of the intersex persons, which is based on different arguments.

For the purposes of the research, we aim also to compare the national legislation with the European principles and practice of the European Court of Human Rights (hereinafter referred as ECHR). The paper also includes the opinions and recommendations of Albanian institutions, as well as those of foreign ones, mainly European, in the area of human rights protection, and especially regarding the rights of the intersex persons.


Chetwynd H., Kati K., Bjanku L., Shehi A. (2001). For a European public order, selected decisions of the European Court of Human Rights published by Graphics ARS.

Council of Europe, Commissioner for Human Rights (2015), issue paper on Human rights and intersex people. Retrieved from (22.09.2015)

Domurat Dreger, A. (2001). Hermaphrodites and the Medical Invention of Sex. Harvard University Press.

Dagmar S., Waddington L., Bell M. (2007) Ius Commune Casebooks for the Common Law of Europe Cases, Materials and Text on National, Supranational and International Non- Discrimination Law.

Ebels Ph. (2012). Focus Intersex people in EU: ashamed and invisible, Retrieved from (06.06.2015)

European Commission, (2012). Trans and intersex people: Discrimination on the grounds of sex, gender identity and gender expression, Report by the European Network of Legal Experts in the non - discrimination field, Brussels.(10.07.2015)

Kilkelly U. (2001). Handbook No. 1: The right to respect for private and family life. A guide for the implementation of Article 8 of the European Convention on Human Rights.

Money, J. (1994). The concept of gender identity disorder in childhood and adolescence after 39 years. Journal of Sex and Marital Therapy.

Nowicki M. (2014). Brief Commentary on the European Convention on Human Rights, published by Nature Ltd.

Omari S. (2010). Family Law, published by Morava.

Resolution 1728 of the Parliamentary Assembly (2010), On discrimination based on sexual orientation and gender identity. Retrieved from (10.07.2015)

Resolution 1952 of the Parliamentary Assembly (2013), Children’s right to physical integrity. Retrieved from

Case of Van Kuck v. Germany (Application no. 35968/97), Strasbourg 12/9/2003 (Final).

Normative acts

Law no. 8317, dated 31.07.1996, "On the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms".

Law no. 10,129, dated 11.05.2009, "On Civil Status".

Law no. 10 454, dated 21.07.2011 "On the transplantation of tissues, cells and organs in the Republic of Albania".

Law no. 10221, 04.02.2010, "On protection from discrimination".

The Constitution of the Republic of Albania, 1998.

Original Research Articles