IN THE EUROPEAN COURT OF HUMAN RIGHTS

RACHEL HORSHAM -v- THE UNITED KINGDOM

ANNEX 5 TO MEMORIAL

I, Professor L J G Gooren, am a Consultant Internist and Endocrinologist at the Department of Endocrinology/Andrology of the Free University of Amsterdam, a Professor of Transsexology at the same university and a recognised authority on transsexualism. I acted as a Co-Rapporteur at the Council of Europe’s XXIIIrd Colloquy on European Law "Transsexualism, Medicine and Law" organised in conjunction with the International Commission on Civil Status held in Amsterdam in April 1993.

It is now a generally accepted fact that in a species like rats, dogs, cats, but also human beings, the brain undergoes a sexual differentiation into male and female. There are male and female brains. This guarantees more or less that the sexual behaviour of that person is in concordance with the genital criteria; a person with a penis will generally act sexually as a male and a person with a vagina will generally act as a female. So nature has built in a kind of guarantee that actual behaviour is in concordance with the genital criterion.

The nature of the external genitalia by which a person is assigned to one sex or the other at birth is only one of the five criteria of sex. The others are chromosomal sex, gonadal sex, the sex of the internal genitalia, the sex of the external genitalia and the sex of the brain.

Fortunately, in the vast majority of persons all these criteria of sex are in concordance but in 5 of 1000 newly-born there is a contradiction between the different criteria of sex. It is an accepted medical policy that none of these criteria takes priority or precedence over the others. If a child has contradictions between the different criteria of sex, that child is assigned to the sex in which it will function best later in life, socially and sexually.

In a modern view, transsexuals are a kind of inter-sex in that they have a contradiction between the chromosomal sex, the gonadal sex, the sex of the external genitalia and the internal genitalia on the one hand, and the brain sex on the other. Current medical evidence points out that the sexual differentiation of the brain takes place after birth, probably between the ages of 3 and 4. As long as the sex of the brain is in concordance with the nature of the external genitalia, there is no problem. But there is a problem if the brain sex differentiates oppositely to the nature of the external genitalia, as is the case in transsexuals.

The medical policy with regard to transsexuals is not essentially different from that in other cases of inter-sex. Transsexuals are assigned to the sex in which they feel well, in which they will function best socially and sexually.

So, it is my viewpoint that the same rights must be given to transsexuals as are given to other people in whom not all the criteria of sex are concordant. It is medical policy to assign the sex to those persons in whom there are contradictions between the different criteria of sex to the sex in which they will function best.

The medical evidence about the brain differentiation is rather new. it was expected at the time of the Colloquy but it was not available. It has become available over the last years and it is now quite a solid piece of evidence that in male to female transsexuals, the brain has not followed the expected path of differentiation but has taken the sexual differentiation of the opposite sex, which explains the feelings that transsexuals have about their bodies.

On 25th March 1996 at Ms Rachel Horsham’s request, I wrote to the director of records at The New East Surrey Hospital, the place of her birth, to enquire as to the availability of records of birth. A copy of my letter, together with the reply that I received from the Hospital, is attached hereto. It is unfortunate that I am not in a position to consider further the information that Ms Horsham has given to me regarding observations made at the time of her birth.

During July 1996, I was asked by Ms Horsham to evaluate certain information that had been obtained in relation to Sir Ewan Forbes née Elizabeth Forbes-Sempill. From the history before me, I can state that it would be extremely unusual if the person in question had been a case of intersex, particularly since the person must be assumed to have had medical expertise on sexual differentiation disorders. I believe that this was the case of female-to-male transsexualism. A copy of my letter setting out this belief is attached hereto.

The findings which were reported to the Commission on 19th January 1996 were published in Nature (Z N Zhou, M A Hofman, L J G Gooren and D F Swaab (1995) A sex difference in the human brain and its relation to transsexuality; Nature 378 68-70). Since the publication of that report, one other brain has been examined. Similar results were produced. Further, the specimens of the study published in Nature have been re-worked using new laboratory techniques (using antibodies against Somatostatin) and they support unambiguously the original contention that the sexual differentiation of this part of the brain in male to female transsexuals is indistinguishable from that in normal women. There have been no scientific findings which contradict the date reported in "Nature".

IN THE EUROPEAN COURT OF HUMAN RIGHTS

RACHEL HORSHAM -v- THE UNITED KINGDOM

  ANNEX 9 TO MEMORIAL

I, KRISTINA SHEFFIELD of Flat 1, 85 Grange Road, Ealing, London W5 3PH, WILL SAY as follows:

1. I am the Applicant in Application no. 31/1997/815/1018 pending before the European Court of Human Rights and I make this statement in support of my application.

(a) Importance of the Application

2. Before dealing with specifics, I must emphasise just how important this Application is to me. I suffer from the refusal of the Respondent to permit an annotation to my birth certificate acknowledging the gender re-assignment that has occurred in my case.

3. No one would undergo gender re-assignment with the social and emotional impact i entails unless it was necessary because of a profound problem in one’s previous (mistaken) identity. For anyone, it would be a source of embarrassment and distress to be prescribed wrongly in terms of gender identity. As a post-operative transsexual words are inadequate to express the hurt and distress I feel at the Respondent’s refusal to recognise my identity. This profound hurt is experienced on an on-going basis as I cannot apply for jobs, seek any form of insurance or engage in other everyday transactions without facing the prospect of being required to reveal the extremely personal and private information concerning my former identity.

4. I understand, from what I have read of the Convention and its case law, that measures affecting my personal privacy should be necessary or to put another way strike a fair balance. In assessing this, I do ask the Court to take into account and give full weight to the impact on a post-operative transsexual of being obliged, in practice, to reveal such personal information. It is simply ghastly and, I believe, both unnecessary and unfair. Such disclosures of my "legal" identity have resulted in me being treated as a freak and as an object of ridicule through the pointing of fingers and the open laughter and insults. This is a common occurrence when forced to disclose, and all must be endured without the right of redress. This causes extreme mental stress and is certainly a form of mental cruelty.

5. What is particularly sad is how the legal and administrative position of transsexuals has been made worse over the years. I face a worse position in Britain today than I would have years ago. Prior to 1971, I believe that all transsexuals, both pre-operative and, of course, post-operatives, had been issued with new passports, new driving licences, and, as they were classified in their new gender for National Insurance purposes, they were protected within the field of employment. In fact they enjoyed the same rights and privileges as experienced by non-transsexual citizens.

6.The position deteriorated after the decisions in Corbett -v- Corbett 1971, E.A. White -v- British Sugar 1977 and R -v Tan and Others 1983. The Memorial has pointed out how this occurred and has appended to it Sir Roger Ormrod’s 1972 talk, the High Court of New Zealands’s decision departing from Corbett -v- Corbett and other information.

(b) Certificates

7. I turn now to the issue of annotations to certificates. Annex 1 to the Memorial contains copies of the certificates of Roberta Cowell, Georgina Turtle, Laurence Dillon and Sir Ewan Forbes.

8. With regard to Roberta Cowell, previously known as Robert Marshall, she was 33 years old at the time of re-registration and she had served as an officer and a pilot within the Royal Air Force. I know, from personal experience, that all military personnel MUST undergo extremely strict regular medical examinations, especially in respect to aircrew personnel. The equivalent of an Al, Gl, Zl medical certificate would have been required. (Minimum RAF requirement). The Respondent asserts that she was NOT transsexual, on their case, Robert must have been suffering from some physical defect. However, considering the medical examinations required for ‘officer and aircrew’ personnel in recruitment and selection, during training and thereafter during their military service, any such abnormality would surely have been observed by the doctors. Investigations would have been initiated for cause/reasons etc. and entry into military service would have been denied. It is further shown that Roberta Cowell fathered two children as is evidenced in her own story published at that time in Picture Post. Had an error occurred at birth which necessitated corrective surgery, it would have been impossible both medically and physically prior to that surgery being carried out for her to have fathered children. This is commented upon by Professor Gooren. I verily believe that Roberta Cowell’s case is one of transsexualism.

9. With regard to the High Court hearing in 1969, I am informed and understand that in her action, under English Law, she was required to prove her case against the Defendant, Ursula Bloom. This she did by producing her certificate and stating that corrective surgery occurred - as per the amendment on the certificate. No medical evidence was submitted by Cowell as it was not necessary. The onus of proof then lay upon the Defendant (Ursula Bloom) to disprove Cowell’s claims of being genetically female, and/or that the birth certificate was false. This they could not do and, therefore, the Defendant lost the case.

10. The newspaper report referred to by the Respondent does not establish that Roberta Cowell was not a transsexual. Rather, it shows that the issue of certificates to transsexuals serves the purpose of protecting the individual’s private life from those intent on invasion of their lives.

11. With regard to Georgina Turtle, previously known as George Edwin, she was 37 years old at the time of re-registration and she served as an officer and dental surgeon within HM Royal Navy, both ashore and on board ships. Once again, she would have been subjected to the same strict medical examinations as stated above and any abnormalities would have been investigated. With regards to the publicity in 1988, and the subsequent apology, it can be seen that the Chat magazine would have found themselves in the same position as Ursula Bloom (as above) had it been pursued into the Courts. Therefore, feeling that discretion would be the better course of action, they published the apology.

12. Elizabeth Forbes Sempill was born the youngest daughter of Lord Sempill, the First Lord of Scotland and a man with close ties to the Royal family. Under Scottish law, titles can pass to the eldest child unless it is specified that a title can only be passed to the eldest male.

Dr Elizabeth Forbes Sempill, who later changed her name to Ewan Forbes, was issued with a new birth certificate. On the death of the then Lord Sempill, who held two titles, one being a Baronetcy, that could only follow the "male" line of succession. Ewan/Elizabeth Forbes laid claim to the title of Baronetcy. His/her nephew would have been next in line had Elizabeth not changed her sex.

This came before the Scottish Courts in 1965 when her/his nephew challenged the claim on the grounds that Ewan Forbes was a transsexual and really a woman. The deciding factor in this case was the medical evidence produced by Professor C N Armstrong who convinced the Court that the most important criteria for determining sex was "psychological sex" irrespective of the gonads genitalia and chromosomes of the individual. As such, the Court ruled in favour of Ewan Forbes whose psychological sex was found to be male. He took the title, known as Sir Ewan Forbes.

c. British Law

13. No Parliamentary Legislation applies to transsexuals other than the Matrimonial

Causes Act 1973, where part of ‘Void Marriages’ is directly related to the Corbett

decision. The domestic law to which the Respondent refers is ‘case law’ and ‘case law’only. Corbett -v- Corbett 1971, E.A. White -v- British Sugar, 977 and R -v- Tan & Others, 1983. All these cases have prevented me from marrying, changing my birth certificate and have forced me to be declared a man at all times whilst, previously, these restrictions would not have been possible. As can be seen, the plight of transsexuals has worsened progressively since Corbett.

14. Recent case law arising out the ECJ in the matter of P -v- Cornwall County Council has improved matters slightly in the field of employment but the overall situation for transsexuals is still one of extreme disadvantage when compared to non-transsexual persons.

(d) My divorce

15. These are extremely painful matters but I will explain the position so that the full picture is before the Court although I request that no reference to this confidential part of my statement be made in open Court or in the Court’s judgment.

16. In 1986 I began treatment at the Gender Identity Clinic, situated at the Charing Cross Hospital in London. The hospital was a National Health Service Hospital. The rules and regulations set down for the treatment of transsèxuàls is determined by NHS doctors.

17. In 1987, I was informed by my consulting psychiatrist and by the surgeon, that before surgery could be performed I must be divorced. At the time I believed it was due to the fact that two women could not be married. However, I was since told that the sole reason that divorce was required was in order to protect the consultant and/or the surgeon from being sued by the wife for loss of conjugal rights.

18. With reference to my daughter, unbeknown to me, and after the divorce, my ex-partner, having already been granted custody of my daughter, then later applied to the Courts for an Order to deny me access to my daughter. Access was denied. Not because I was considered to be a child molester or child abuser, but solely on the grounds of my transsexuality. The Judge believed that contact with a transsexual would NOT be in the interests of my daughter’s welfare. I cannot begin to describe how upsetting this was and is to me. It is just awful.

(e) The Department of Employment and Education 19. The Employment Service does not itself require clients to state that they are transsexual. It does not have to do so because the information is already contained on their computers. One is issued with a National Insurance number - which does not change with gender change. One informs one’s local office of name change and that name change is then entered into the computer at National level. In my case, on entering into the computer it discloses "KRISTINA SHEFFIELD sex MALE". This would automatically reveal me to be a transsexual, and this computer display is available nationwide throughout all employment offices. Department of Social Security records apparently drawn up for transfer from the Ealing District office to "UBO1-568" record my name as "Ian V Sheffield" and only state my current name under "known as". Another DSS record, I believe drawn up by the contributions Agency in Newcastle, lists my name as "Mr I V Sheffield k/a Miss K Sheffield" and includes a tick in the box marked "Male".

20. No one below the position of ‘Supervisor’ is supposed to have access to a transsexual’s computer file. However, this rule does not appear to be generally known. This did result in ‘file access’ by those who are not permitted to see such files. In my case, once I became aware of the rules, it took weeks to convince staff that such rule existed and to have them secure my computer files. This was eventually done at local level. It is now done at national level but still needs to be done at local level on initial contact with the Department of Employment and Education by explaining one’s situation to a Junior clerk before it can be passed to national level, thus defeating the purpose of "national level" security. However, access to my file had been obtained by juniors PRIOR to the security measures being incorporated, so now all persons within the local Employment Office know of my transsexuality, thus contravening their own rules of confidentiality. This remains a source of concern and embarrassment to me.

(f) Name Changes and its limitations

21. A change of name by ‘Deed Poll’, ‘Statutory Declaration’ or by any other means is no more than a request for other persons to address the person concerned by their new name. Statutory Declaration Act 1935 . It is NOT binding on those other persons. However, other people may not be prepared to accept such an informal change of name and there is nothing to prevent those persons using the individuals’s legal name, as stated on the birth certificate, and ignoring the ‘name change’, which, in reality, is nothing more than a ‘change of convenience’, providing the transsexual with a paper-thin veneer giving no protection against ridicule, degradation or any other form of intimation, prejudice or discrimination.

22. It is correct that my passport contains my new name and the presentation of such documents to the ‘man on the street’, would not disclose my transsexual background. However, all such documents have ‘numbers’ and any person, regardless of their status, requiring authentication of those documents, or otherwise, can check those numbers. This can and, in my experience, has led to my legal name and my legal sex being disclosed, as happened to me when I submitted my passport at the United States Embassy for a visa. As it is not offence to discriminate against transsexuals and as this information could then be disclosed to persons who do need to know of my background and who are not covered by Laws/Rules of confidentiality, then discrimination, prejudice and ridicule can, and has been levelled at me. As an airline pilot who enters many different countries throughout the world a passport is as important as my licence and is detailed by the CAA. It is of great concern to me that my passport does not portray the truth or facts about me but is only a document of convenience. In reality, it is a false document and I have been informed that the use of such a false document is at my own risk. No guarantee of protection can be given by a British Embassy or Consulate. When this document was issued to me I was not informed of the dangers of using such a document in order to hide my legal status in the course of normal living.

(g) Marriage

23. Transsexuals are being denied one of the most human rights. I do believe this should be given the Court’s attention.

(h) Sureties, Insurance and other Contracts

24. There may be circumstances in which it is necessary to know of a previous identity. The problem is that I am forced to disclose unnecessarily, even when my previous identity is not required on any rational view of the matter.

25. Once again because such a disclosure reveals my transsexuality and because it is not an offence to discriminate against transsexuals I can once again be subjected to discrimination, prejudice, ridicule etc. Because a name change is not a LEGAL change, one’s original name is always kept on data files. However, if a transsexual was permitted to have a legal and official name change, all records etc. in the ‘old name’ could be transferred to the ‘new name’ and the old name struck out. This is certainly possible and as there are only some 4,000 registered transsexuals in the United Kingdom, of which approximately 10% to 15% are post-operative, it would not be difficult for government computer files (police files, etc.) to be adjusted. I suffer and others do - terribly - in consequence of the failure to make the minimal necessary

26. I accept that the check on an individual for a criminal record can be necessary. Under the current system this discloses my legal identity to the police officer, this in turn resulted in a disclosure of my transsexuality to that police officer. Once having checked and having found me free of a criminal record, he then informed the Court and the Crown Prosecution Service of these facts. Both these parties were then aware of my transsexuality. In court - open to the public - the prosecution lawyer demanded, after I had already disclosed my name of ‘Kristina Sheffield’, that I disclose my previous name of ‘Ian Vaughan Sheffield’. He then set out to discredit me by using my transsexuality to imply that I was dishonest, untrustworthy and unreliable. It was simply awful and, I believe, so wrong and unjust. This was not the only time that I was faced with the threat of having to disclose my past name and gender in Court. In 1994, I was due to attend the criminal trial of a friend as an alibi witness. The Defendant decided not to call me out of fear that her trial would become sensationalised and my own reputation damaged. Why should the Respondent permit my intimate privacy be violated in this way? I do look to the Commission for help and protection.

27. Had I been a non-transsexual my credibility would not have been questioned in such a manner and I would not have had to suffer the degree of ridicule to which I was subjected. Because such treatment of me is not an offence, I have no right of redress or complaint.

28. In respect of car insurance, it is agreed that it is necessary for companies to check whether or not I have a goccd or bad driving record. However, most companies, if not all, do not find it necessary to go back more than 3 or 5 years. This is done in order to establish one’s entitlement to a ‘no claims discount’. In many cases some companies only require disclosure of accidents within the last 2 years. In my case there is no need for information prior to 1990 to be sought by any insurance company and therefore it should not be necessary to disclose my previous identity because that was changed in 1986.

29. In 1986, I decided not to disclose my previous driving experience in order to keep my previous identity from the then insurance company. This decision resulted in my being treated as a ‘new’ driver with no entitlement to a ‘no claims discount’. From 1986 until 1991 I declared myself as female and I went on to rebuild my ‘no claims discount’. In view of this, how can disclosure of my previous identity be warranted or be necessary? But in 1991 I realised the danger I was in by non-disclosure. Because the law states that when driving a car, one must be insured in accordance with the Road Traffic Act, then not having insurance, constitutes an offence and is a criminal act. It was only in 1991 that I discovered the full implication of Corbett, White and Tan. By informing the car insurance company between 1986 and 1991 that I was of the female sex, when in reality I am legally male, this action constituted a false declaration on the insurance application and would therefore invalidate the insurance, thus leaving me uninsured. Therefore, in order to comply with the Road Traffic Act I must have insurance to drive. In order to ensure that the insurance is valid I must not make a false declaration. I am, therefore, forced to disclose my legal sex and this in turn discloses my transsexuality to persons who do not need to know; neither are they entitled to know. I have checked with my lawyers and am informed that this is the law under the doctrine called uberrima fides.

30. Where medical history and/or medical information is required by an insurance company, ie. life insurance, then I can see that be wrong for me to NOT disclose such information and, I am prepared to comply with such a need. However, disclosure of my medical background is only disclosed to the medical experts within that company. The information is medically confidential and persons receiving such information are bound by rules of confidentiality. The fear or worry of confidential medical information being improperly disclosed to persons who are not entitled to that information does not arise.

(i) Police Computer Files

31. My complaint here was quite simple. As a result of my arrest and the disclosure by the police, to me, in relation to my transsexuality, I wished to find out if details of that status were or were not stored on the computer files. In order to find out, I would have to disclose the very information to the police that I would not want them to have on computer in the first place.

(j) Legal Aid

32. My application in this matter was to deal with amendments to, and to have my birth certificate annotated. The State claims that due to the current state of English Law, I had no reasonable prospects of success.

33. English Law is based on Corbett and Tan - case law, NOT legislation. Under the English Legal system, judicial reviews can be sought and existing ‘case law’ can be challenged and overturned. Evidence available today discredits these cases as being ‘mischievous’ and it was my intention to establish this fact in the Courts and have such ‘case law’ removed, once and for all, from English Law. Legal Aid was refused on the basis that success was unlikely. I was prevented from going to Court and would have risked bankruptcy in costs exposure had I done so. Even a loss at first instance would have ruined me since I was unemployed at the time. I could not have afforded a lawyer and would have been in grave difficulties and at severe disadvantage had I tried to act alone. Application to the Commission was the only avenue open.

34. There is now produced and shown to me marked "KS 1" a copy of

TRANSSEXUALISM: THE CURRENT MEDICAL VIEWPOINT (dated 14th February 1995) Extract from: UK Parliamentary Forum. Medical sub-group:

(a) "It is considered that as scientific knowledge of transsexualism has progressed considerably since Corbett, and that the evidence presented there is no longer reliable, from the point of view of medical ethics, the imperatives of respect for autonomy, beneficence, non-maliference and justice mean that medicine would not support any legal interpretation of its research into transsexuality that would operate against the health, well-being or advantage of patients. Medically, there is no reasons why people receiving treatment for transsexuality should be given any less legal status than that of any other person."

(b) This is further enhanced by the UK medical community’s concern about the lack of "Quality of Life" for transgendered persons. Such "Quality of Life" (see also ‘Standards of Care’ (Exhibit "KSl") refers to patient satisfaction with their ability to:

1. Find employment

It is a matter of concern to the UK medical community that the current legal status of people who have been treated for transsexualism works against the four performance indicators listed above. 35. Prior to entering hospital, I had been presented with the appropriate "Standards of Care" to which I expected to be treated. I certainly expected and looked forward to a life of normality in accordance with 1-4 above, as mentioned in para. 4.2.2 Principle 5 of the "Standards of Care" and para. 5.2. of "Transsexualism: The Current Medical Viewpoint". The UK medical community strive to achieve this aim but their hands are tied by existing case law. As such, my expectations of 1-4 above are denied to me as a result of DIRECT interference by the State, which has not only denied me a ‘quality of life’, but has also directly interfered with medical decision and caused a reduced ‘standard of care’. This is deeply distressing. There have been some remarkable medical and scientific findings in determining the sex of an individual. Such an article was published in "Nature" in November 1995 when it was shown the "brain sex" could be determined. The United Kingdom has tried to ridicule these findings using second hand personal opinions of other medical experts who have not viewed the scientific finding or carried out research of their own. These personal opinions are not based on any scientific knowledge.

36. Personally or through my solicitor or Counsel, I am ready to provide any further information that the Court may need. I ask the Court to understand how much this matter means to me. I have suffered and seek your help.

VRS2O/SHEFF1

1 Aims and Objectives of this Document

5 Outcomes and Measures

4.1 There is no single model of treatment: rather, variety in approach is both supported and sought as part of the continuing professional discussion of the syndrome. Typically, however, an effective model of treatment will utilise hormone therapy and surgical reconstruction and may indude: 7

approximately three monthly intervals and at the appropriate point surgery

5 Outcomes and Measures

5.1 There is a paucity of research into the long-term outcomes of treatment for transsexualism. However, the studies which have been carried out indicate that a treatment model using the principles described above is highly successful, with some suggesting up to a 97% success rate. ⁸This compares extremely favourably with the outcomes for other chronic conditions.

  4

thus, it is likely to impair quality of life. In particular, the lack of substantive employment rights works directly against the important economic performance indicator of finding and maintaining employment

Original draft prepared by: The founding committee of the Harry Benjamin

International Gender Dysphoria Association, Inc.