León Madrid v. Spain, No. 30306/13, ECtHR (Third Section), 26 October 2021

Automatic assignment of paternal surname preceding maternal surname in naming of child, where parents disagree, without considerations of concrete circumstances. Gender-based discrimination. Violation of the right to respect for private and family life.

Art. 8 ECHR
Art. 14 ECHR

1. The decision of the order in which parental surnames appear in the child’s surname falls within the scope of the right to respect for private and family life as protected by article 8 ECHR. The difference in treatment on the ground of ‘sex’ (gender, according to current interpretations of international human rights law) amounts to a violation of article 14 ECHR in conjunction of article 8 ECHR when it derives from the application of a repealed law establishing the automatic choice of the paternal surname where parents disagree without regard to concrete circumstances.

2. A policy or a measure of general application disproportionately affecting a specific group of individuals is not necessarily discriminatory even where it does not target specifically that group. References to majority cultural traditions or social attitudes of a given country are not sufficient to justify a difference in treatment on the basis of ‘sex’ (gender).

3. There is a difference between the impact of the surname assignment at birth and the possibility to change one’s surname throughout their life. The difference in treatment between mother and father following the automatic application of the paternal surname preceding the maternal surname where parents disagree is not sufficiently objective and reasonable, thus is not justifiable. It is true that a rule providing for the assignment of the paternal surname preceding the maternal one might be needed in practice without being considered contrary to the ECHR a priori. Yet it is precisely the inability to derogate from that rule that makes it excessively stringent and discriminatory against women.
(The applicant complained about the violation of article 14 ECHR in conjunction with article 8 ECHR. She requested the inversion of the order in which parental surnames appeared in the minor daughter’s surname. The law at that time provided that the paternal surname automatically preceded the maternal surname where parents disagreed. In the absence of objective and reasonable justifications, the automatic application without regard to concrete circumstances constitutes discrimination on the basis of sex/gender).