The Constitutional Council validated Friday, July 8, 2022 the exclusion of transgender men from access to medically assisted procreation (PMA) enshrined in the “bioethics” law, a provision contested by an association for the defense of the rights of trans people.
The “bioethics” law of August 2021 opened access to assisted reproduction to couples formed by a man and a woman or two women as well as to unmarried women. In fact, on the contrary, it deprives single men or men in a couple with a man, even though those of them who, born women in the civil status, have changed the mention of their sex, may be able to lead pregnancy.
The objective of the law is to “allow equal access for women” to PMA
However, for the Information and Action Group on Procreative and Sexual Questions (GIAPS), which had seized the Elders of rue Montpensier with a priority question of constitutionality (QPC), these provisions based on civil status and not the real reproductive capacities, were contrary to the principle of equality between men and women.
In a decision handed down on Friday, the constitutional judges ruled that the “principle of equality does not preclude the legislator from regulating different situations differently, nor from derogating from equality for reasons of general interest” provided that this difference in treatment is “directly related to the purpose of the law establishing it”.
However, as the Constitutional Council reminds us, the authors of the law and Parliament wanted above all “to allow women equal access to medically assisted procreation, without distinction related to their marital status or their sexual orientation”.
The law can change “at any time”
It is therefore with good reason that the legislator considered “that the difference in situation between men and women, with regard to the rules of civil status, could justify a difference in treatment” for access to PMA.
In their press release, the “Sages” recall that it is not for the Constitutional Council to replace the legislator in this matter but that the latter can “at any time” choose to change the law.
For Giaps, the Constitutional Council “comes to nullify the constitutional principle of equality between the sexes”. “If sex in the civil registry is an objective and rational criterion for distinguishing access to certain rights, why not say that only women in the civil registry have access, for example, to family allowances, or even that are trans men excluded from access to abortion? »quipped the association in a press release.