BEFORE THE EUROPEAN COMMISSION OF HUMAN RIGHTS IN APPLICATIONS:-

No: 22985/93 Brought by Kristina Sheffield

And

No: 23390/94 Brought by Rachel Horsham

Against the United Kingdom

FURTHER OBSERVATIONS ON THE MERITS

ON BEHALF OF THE APPLICANTS

1. After declaring these applications admissible, the Commission invited submission of further Observations on the merits. It specifically asked whether or not a marriage contracted by Rachel Horsham under Dutch law would be recognised in English law. It also requested any Friendly Settlement proposals.

2. In compliance with the Commission's request, these Further Observations first address the recognition in English law of a marriage contracted by a post operative transsexual (Part A) before supplementing and updating the earlier written submissions and oral submissions made on the Applicants' behalf (Parts B to E). Part F outlines the Applicants' Friendly Settlement proposals. Part G sets out conclusions and asks the Commission to find violations on the merits should a Friendly Settlement not occur.

A) The recognition in English law of a marriage contracted by a post-operative transsexual

3. Annexed to these Further Observations are two Opinions prepared by Dr Stephen Cretney_, who is recognised to be amongst the most distinguished experts in the United Kingdom on family law issues and related conflict of law questions (Annex 1) Dr Cretney is a former Law Commissioner responsible for family law issues, he is now Senior Fe1low of All Souls College Oxford; his qualifications are set out at page 12 of his first opinion.

4. Attention is drawn to the following points in Dr Cretney's Opinions: -

(a) Post-operative transsexuals domiciled in the United Kingdom are unable to contract a valid marriage with any one whether a man or a woman: Dr Cretney Opinion No 1 paragraph 5 page 6. Kristina Sheffield is indisputably domiciled in the United Kingdom and is prevented by the above legal rule from marrying anyone. If - as seems perfectly probable - Rachel would also regarded under English law as still domiciled in England, then she to is affected by this total prohibition under English law on contracting any marriage with anyone anywhere in the world.

(b) Were either Kristina or Rachel to make the declaration that no impediment to marriage is known to them, they would be at risk of prosecution of the Perjury Act 1911: Dr Cretney Opinion No 1, paragraph 6(a) at pages 6 to 7. Under that provision (as amended), the penalty is imprisonment for up to seven years and/or a fine. As to sentences, the editors of the leading work "Archibald Criminal Pleading 1996" comment that "custodial sentences are almost invariably upheld by the Court of Appeal'¹ and that, for perjury in civil proceedings, "the bracket in the reported cases is from about three months to 18 months" .2.

(c) 'The conventional understanding of Eng1ish law in relation to the marriage of transsexuals would debar her from contracting a va1id marriage

1.Archbold 1996 Volume 2, para 28-172 at page 2/1192.

anywhere in the world notwithstanding that the lex loci ce1ebrationis would permit such a marriage: Dr Cretney Opinion No 1, paragraph 8, page 9. This is the position facing Kristina. It also faces Rachel unless she can establish that her domicile of origin (England) has been 'displaced by establishing residence in another country with the intention of remaining in that Country permanently: Dr Cretney Opinion No 2 paragraph 5, pages 2 and 3, his emphasis. Accordingly, Dr Cretney considers that an English Court may take the view that Rachel "does not intend to remain permanently abroad but would return to this country if the law were changed to remove the legal provisions discriminating against her": Opinion No 2, paragraph 6, page 3.

(d) As to the position of Kristina Sheffield and Rachel Horsham (it still domiciled in England), Dr Cretney is emphatic. He regards it as 'virtually certain" that:- English law would deny the applicant the right to contract any marriage in England; and that it would equally deny recognition to a marriage contracted abroad by an English domiciliary notwithstanding the fact that the marriage was valid by the lex loci ce1ebrationis" (Opinion No 2, paragraph 10, pages 6 and 7) (e) Dr Cretney even regards it:

5. On the specific issue of the recognition in England of a marriage validly contracted in the Netherlands by Rachel Horsham if she succeeds in estab1ishing Dutch domici1e of choice, Dr Cretney takes a different stance to the editors of Bromley on Family Law who consider it "inconceivable"

that a marriage by a post operative transsexual would be recognised. Dr Cretney's considered opinion is that it is possible that an English Court would today recognise such a marriage as it does a polygamous marriage.

6. At the Oral Hearing, the Respondent submitted that: "whether Miss Horsham's marriage in the Netherlands would be recognised in the United Kingdom...is a difficult question of domestic law, the conflict of laws - and domestic remedies should be exhausted. If Miss Horsham were to marry in the Netherlands, if she is domiciled there (and we have no view on that), and if she were concerned about recognition of that marriage in the United Kingdom - all of these are moot questions at the moment -, then she could and she should seek a domestic legal remedy to clarify the position". (VR page 38)

7. The Commission is asked to reject the above submission of the Respondent:-

(a) Unless Rachel can establish domicile of choice in the Netherlands, no "difficult question of domestic law" arises as the Respondent asserts. If Rachel remains domiciled in England (and the presumption is that her domicile of origin remains unchanged), the position is clear: her marriage anywhere in the world will not be recognised in England nor will it be recognised in other countries which treat capacity to marry as governed by the law of the country of domicile.

(b) Only if Rachel can succeed in establishing change of domicile is it possible that English courts might recognise her marriage (although the Commission knows that Andrew McFarlane and the editors of Bromley consider that the courts would not do so).

(C) The Respondent appears to assert that Rachel cannot complain of the chilling effect upon her marriage plans of the predicament she faces_.

Rachel and her partner, however_, cannot reasonably be expected to embark upon marriage in the knowledge that, if she is regarded as still domiciled in Eng1and, her marriage will be unlawful not just in the United Kingdom but in other countries worldwide which treat her capacity as governed by domicile. The Commission has been told, however_, of the dreadful impact upon Rachel and her partner of this situation; their predicament severely discourages them from marriage and causes Rachel deep pain: VR page 32. The Respondent appears to assert that Rachel should marry in the hope that her; domicile will be regarded as Dutch and in the hope that an English Court may rule that Bromley on Family law is wrong. Quite apart from the emotional strain caused in entering a marriage on such a basis (and that would be severe), the uncertainty would gravely undermine the usual marital basis for pooling property and other resources, the position under wills, pensions, insurance policies etc. The Respondent's assertion that Rachel is unaffected by her plight is profoundly wrong and contrary to the case law cited on her behalf at the Oral Hearing: VR page 30.

The interference's with the Applicants private life The existence of serious interferences is established on the materials and submissions already before the Commission. Additionally reliance is placed upon the following matters: -

(a) Criminal Penalties exist requiring a Post-Operative transsexual to declare in numerous contexts that their lega1 sex remains unaltered. Paragraph 4(b) above made reference to the provision of the Perjury Act l911 (as amended) which regulates declarations in respect of marriage and would render Kristina or Rachel

liable to up to seven years imprisonment if they failed to declare their sex as male. because of Englishinsistence on treating post operative transsexuals as still being of their former gender, this requires them to identify the differences between their current and previous gender on innumerable occasions and purposes and exposes them to serious criminal sanctions it they fail to do so. Annex 2 to these Further Observations contains the relevant extract from the latest edition of Archbold. The Act is not confined to oaths taken in judicial proceedings but extends to any other affidavit which is in any material respect false (Section 2 - up to seven years imprisonment). Section 5 imposes liability to up to two years imprisonment for any materially false statement (other than under oath): -

(a) in a statutory declaration; or

(b) in [any]. .other document which he is authorised or required to make, attest or verify, by any public general Act of Parliament for the time being in force,' or

(c) in any oral declaration or oral answer which he is required to make by, under or in pursuance of any public general Act of Parliament for the time being in force"

(b) The existence of these very broad criminal sanctions create a continuing situation which adversely affects the Applicants' privacy. Reliance, mutatis mutandis, is placed on the Court's findings in Dudgeon³_, Norris⁴ and Well Woman 5, 3 Series A NO 45, 4 EHRR 149, paragraph 41.

4 Series A No 142, 13 EHRR 186, paragraph 38.

5 Series A No 246, 15 EHRR 244, paragraphs 44 and 55.

6

(c) further or alternatively, Kristina Sheffield has been personally and directly affected by these criminal law requirements on a number of occasions. At the oral hearing reference was made to the embarrassment Kristina faced when questioned in open court about the discrepancy between her female appearance and gender and her legal gender under current British law and practice Enclosed as Annex 3 is a statement from Donna Cannon, for whose trial Kristina was a material defence witness. In her statement Ms Cannon explains that, because the prosecution could divulge Kristina's history to the court room (and one may add, the Perjury Act compelled Kristina to identify herself, if questioned, as male), Ms Cannon decided not to call Kristina to the detriment of her defence. The impact of the intrusive invasion of post-operative transsexuals' privacy by English law and practice does not end with its direct victims, such as Kristina and Rachel, but can affect others profoundly as Donna Cannon testifies.

(d) Employment applications routinely require a statement of gender;' it would be unlawful and grounds for dismissal for the Applicants to describe themselves in their re-assigned gender. This point has been made in earlier observations. By way of amplification, Annex 3 provides some further sample application forms. Annex 4 contains a letter written by Kristina Sheffield answering the erroneous assertion made by the Respondent at the Oral Hearing that no complaint is made that a particular employer has refused her a job (VR page 7). The true position is that for all main purposes - employment, social security etc - Kristina is treated as a man; this causes her profound and continuous distress and pain (VR page 12). Plainly there has been an interference with her private life.

C) The severe interference with the Applicants' private lives does not comply with Article 8

9. The above matters "interfered" with the Applicants right to respect their privacy so as to cause Article 8 to be applicable. Whether analysed under Article 8(1) or Article 8(2)~ the Respondent cannot show "pressing need" for these interferences, still less that the requirements of fair balance and proportionality have been respected. Reliance is placed on the following points in addition to those already p1aced before the Commission: -

(a) The Respondent has failed to provide any viable justification for the refusal to recognise the Applicants' current gender. The Commission is asked, when reading the Verbatim Record, to analyse what justification has been pleaded. It amounts to practically nothing. In a short Parliamentary debate on a Private Member's Bill on Gender Identity (Annex 5), former Government Health Minister, Mrs Edwina Curry MP, remarked that the current Junior Health Minister had not set out a good justification why transsexuals' birth certificates should not be appropriately annotated (at column 1289). In reply_, the Junior Minister spoke of "complex policy and legal implications" but still failed to provide any specific instances of what those complications might be. The lack of detail when questioned in Parliament mirrors the lack of specific response given by the Respondent when questioned by Members of the Commission at the Oral Hearing. (b) The "historical Record" Point From the Oral Hearing this appears to be the main point on which the Respondent seeks to rely. The assertion, however, does not begin to provide the justification required: -

* Annotation is compatible with treating the Register as a historica1 record. The annotation can record when historically the gender re-assignment occurred.

** In any event the historical record point cannot explain - still less justify - why for all legal purposes post-operative transsexuals are denied recognition of their gender and required, under pain of exposure to severe criminal penalties, to disclose the discrepancy between their current appearance and gender and legal sex.

(c) Current medica1evidence about transsexualism is treated as irrelevant by the Respondent authorities Annex 6 contains a letter dated 12 January 1996 from the Junior Health Minister. In it he reiterates the biological only approach of the Registrar General adding, tellingly, that: -

"No 'governing medical body' is involved and reliance has not been placed on any particular medica1 authority".

(d) Judicial Review is the only available domestic remedy and it does not afford the Applicants effective protection. Such was the Opinion of Dr Cretney: Annex 1 Opinion No 1, paragraph 6(b), page 6. The correctness of his Opinion was confirmed by the judgement of the Divisional Court given on 16 February l996 in R v Register General for England and Wales ex parte P & G: Annex 7. To succeed in judicial review, the Registrar's policy must be demonstrated to be irrational - in practice an impossibly high threshold in a matter of this sort. Before the Divisional Court, the Respondent's first submission, in line with the Junior Minister's letter, was that it would be impossible to say that the actions of the Registrar General were

irrational when mechanically following Corbett v Corbett page 11. Whilst describing that submission as "a little bold", the Court dismissed the application, describing reference to new scientific evidence as "hardly the issue": page 10.

(e) In Scotland, at least one birth certificate has been corrected (not annotated) when an adult altered sex Reference was made to certain cases of corrections to birth certificates by persons who had served in the forces: VR page 18. Details of another striking case are supplied at Annex 8 together with the birth certificate in question. Research and inquiries on behalf of the Applicants continues to be hindered by lack of co-operation and invocation of confidentiality by officials of the Respondent. This Scottish case is further evidence that corrections are perfectly feasible, calls further into doubt the unspecified "complexities" relied on by the Respondent and provides an example of a birth certificate not just annotated but corrected years after birth The latest example completely undermines the Respondent's assertion that it is impractical to correct the historical record.

D) The denial of any capacity to marry anyone (whether male or female) violates the Convention.

10. The Courts pronouncements on Article 12 should be re-examined: -

(a) Important reasons for doing this have been given by Professor Pieter Van Dijk:

"The fact that the ECHR guarantees the right to marry and the right to found a family in one and the same provision does not necessarily carry with it the implication that the former is connected with the latter. If, as the Court's case law indicates_, the concept of family is not necessarily linked with that of marriage, why should the opposite be the case? Article 11 of the ECHR also includes two rights: the freedom of assembly and the freedom of association; that does not mean that assemblies by persons who do not form associations are not protected".: -

The Court's case law referred to by Professor van Dijk is Marckx v Belgium Series A No 31, 2 EHRR 330: -

"Ärticle 8 makes no distinction between the. 'legitimate' and the 'illegitimate' family. Such a distinction would not be consonant with the word 'everyone'….." paragraph 31.

Denial of' any possibility of marriage to post-operative English, domiciled transsexuals would likewise be incompatible with recognising the right to marry to everyone and with the very essence of that right.

(b) Dr Cretney's learned Opinions demonstrate that an English domiciled post-operative transsexual, such as Kristina Sheffield, is incapable in law of marrying anyone, regardless of gender. Dr Cretney demonstrates a "legal impediment" to any marriage by such persons. He provides 'cogent reasons' for revising the Court's statement in Cossey that "it cannot be said that the right to marry has been impaired as a consequence of the provisions of domestic law": paragraph 45.

(c) Alternatively, if contrary to the above submissions, the Commission considers that it cannot disturb the Court's case law on Article12, the denial of any possibility to enter into marriage raises a serious issue under Article 8 read alone and/or with Article 14 on which a violation should be found. Respect for private life must comprise the right to establish and develop relationships with other human beings'

11

Niemetz v Germany Series A No 251-B, 16 EHRR 97,

11. The Commission is also asked to apply the Court's pronouncements in Niemetz to the entirety of the plight the Applicants face under English laws, criminal statutes and practice. The Court described as "too restrictive" limiting the notion of private life to the individual's right to live his own personal life as he chooses: paragraph 29. Test; what Kristina and Rachel have to endure even against this limited privacy test and the intrusion, lack of proportionality or fair balance is both evident and grave.

E) Scientific and Medica1 Evidence

12. The irrelevance; of medical developments to the United Kingdom authorities has already been noted: paragraph 9 (c) and (d) above.

13. Attention is also drawn to the fact that the Divisional Court did not rule on (even in the limited judicial review jurisdiction) the medical deve1opments relied upon on behalf of Kristina and Rachel at the Oral Hearing. VR 23 to 25 and Professor Gooren VR 43 to 45. Lord Justice Paul Kennedy made this point explicitly: - "Miss Cox⁶ .. contends that since April 1993 medical science has moved on. No doubt that is right, but.. none of the post-1993 material upon which she now relies could reasonably be expected to be available to the Registrar General in September 1994 and June 1995 when he was making the decisions challenged in this case'; Annex 7, page 9.

14. Before the Divisional Court, the Respondent is reported as having relied upon a commentary by Mr Marc Breedlove, of the University of California: Annex 7, page 10. Accordingly, Professor Gooren was requested to comment on this point; his response is at Annex 10.

Leading counsel for the Applicants.

12

Friendly Settlement Proposals

The Commission requested proposals on friendly settlement. Through the good offices of the Commission, the Applicants are ready to discuss friendly settlement on the basis that the settlement should provide for:

(a) Changes in the law and administrative practice to end the suffering and humiliation they currently endure and of which has been made.

(b) The payment of substantial compensation to Kristina

and Rachel for all they have had to endure.

(c) The Payment of the Applicants' legal costs and expenses (including VAT) in bringing these proceedings.

16. The Applicants' representatives are ready to provide the Commission with more detailed indications of what Kristina and Rachel would seek by way of settlement but have not burdened these Further Observations with that detail_, since the first step is to ascertain whether in principle the Respondent is interested in discussing friendly settlement of these Applications.

G) Conlusions

17. Should Friend1y Settlement not prove possible, the Commission is requested to find violations in its Report on the Merits for all the reasons outlined above and in earlier submissions made on Kristina and Rachels behalf.

Peter Duffy Andrew McFarlane

Barrister Barrister

Essex Court Chambers 1 King's Bench Walk

24 Lincoln's Inn Fields The Temple

London WC2A 3ED London EC4Y 7DB

Solicitor for the Applicants

Henri Brandman & Co.

43 Queen Anne Street

London W1M 9FA

Dated 29th March 1996