IN THE EUROPEAN COURT OF HUMAN RIGHTS
IN THE MATTER OF
(1) KRISTINA SHEFFIELD
(2) RACHEL HORSHAM
and
THE UNITED KINGDOM
MEMORIAL OF THE GOVERNMENT OF
THE UNITED KINGDOM
INTRODUCTION
O.1 In its Reports adopted on 21 January 1997, the European Commission of Human Rights concluded
(1) By 15 votes to 1 that there had been a violation of Article 8 of the Convention in each of these cases.
(2) By 9 votes to 7 in the Sheffield case and by 10 votes to 6 in the Horsham case that the complaints under Article 12 of the Convention did not give rise to any separate issue.
(3) Unanimously, that the complaints under Article 14 of the Convention did not give rise to any separate issue.
(4) Unanimously, that there had been no violation of
Article 13 of the Convention.
0.2 In compliance with the direction made by the President of —the Court, the Government of the United Kingdom submits the present Memorial.
0.3 This Memorial is divided into seven parts
(1) Part I addresses the facts and the domestic law and practice as applied in the present cases.
(2) Part II relates to the issues raised under Article 8 of the Convention.
(3) Part III considers Article 12 of the Convention.
(4) Part IV concerns Article 14 of the Convention.
(5) Part V comments on Article 13 of the Convention.
(6) Part VI makes observations on Article 50 of the Convention.
(7) Part VII sets out the Government’s conclusions and requests to the Court.
2
PART I
THE FACTS AND DOMESTIC LAW AND PRACTICE1.1 The material facts and the relevant domestic law and
practice are summarised in paragraphs 20-31 of the
Commission’s Report in Sheffield and in paragraphs 20-32 of
the Commission’s Report in Horsham.
1.2 Kristina Sheffield is a British Citizen, resident in London. At birth in 1946, the Applicant was registered as being of the male sex. At an unspecified date thereafter, the Applicant underwent gender reassignment surgery and treatment.
1.3 Rachel Horsham is a British and Dutch Citizen, resident in Amsterdam. At birth in 1946, the Applicant was registered as being of the male sex. In 1992 the Applicant underwent gender reassignment surgery.
1.4 The United Kingdom summarises, in paragraphs 1.6 1.28 below, the relevant domestic law and practice relating to transsexuals.
1. 5 Without prejudice to any of the legal issues in these proceedings, the United Kingdom will refer to each of the Applicants as "she".
Names
1.6 As the Court noted in Cossey v United Kingdom (Judgment of
3
the Court, 27 September 1990, Series A, No. 184, paragraph 16 of the Judgment),
"Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities. For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes a declaration in the form of a ‘deed poii’ which may be enrolled with the Central Office of the Supreme Court.
The new names are valid for purposes of legal identification and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll".
1.7 In relation to these Applicants
(1) Kristina Sheffield changed her name after her gender reassignment surgery. That change of name was recorded on her passport and driving licence.
(2) Rachel Horsham changed her name after her gender reassignment surgery. That change of name was recorded on her passport issued by the United Kingdom Consulate in Amsterdam in 1992.
Marriage
1.8 The basic rule of English law is stated in Hyde v Hyde (1866) 1 LR P & D 130, 133 : marriage is ‘the. voluntary union for life of one man and one woman, to the exclusion of all others". Section 11(c) of the Matrimonial Causes Act 1973 states that a marriage will be void if "the parties
4
are not respectively male and female".
1.9 As the Court noted in Cossey (Judgment at paragraphs 23-
25), English law determines a person’s sex by the application of chromosomal, gonadal and genital tests where these are congruent, and without regard to any surgical intervention see Corbett v Corbett [1971] p 83 (Ormrod J), approved in R v Tan [1983) QB 1053, 1063H-1064E (Court of Appeal). Therefore a person born male who has thereafter undergone gender reassignment surgery remains legally male and so cannot marry a male.
1.10 Rachel Horsham has expressed concern about whether United Kingdom law would recognise as valid a marriage by her to a man in the Netherlands. This raises difficult questions of domestic law in relation to private international law. To resolve those issues, domestic remedies would need to be exhausted by Rachel Horsham. The legal position is as follows
•(1) If English law governs the validity of a marriage between the Applicant and a male, it would not be a valid marriage, because the Applicant is treated by English law as being a man. See paragraphs 1.8 - 1.9 above.
(2) Difficulty arises because of the rules of private international law, as applied by English courts, which may have the effect that when an English court
5
assesses the validity of a marriage contracted by the-Applicant, Rachel Horsham, in the Netherlands, the English court does not apply English principles but those of the law of the Netherlands. -
(3) The leading textbook on private international law in the United Kingdom (and indeed one of the leading textbooks in the world on the subject) is Dicey and Morris on the Conflict of Laws (12th edition, 1993). Annex A to this Memorial contains the relevant pages stating the principles which are applied by English law in considering capacity to marry. Dicey and Morris state, at Rule 70 (pp.663-664)
"As a
A number of exceptions are then recognised.
(4) Therefore, subject to the possible application of the exceptions, if Rachel Horsham is domiciled in the Netherlands, and if she were to marry a man in the Netherlands, and if the Netherlands were to recognise the validity of such a marriage, then it would be open to her to contend in an English court that English law should recognise the validity of that marriage because of the rule that "capacity to marry is governed by the law of each party’s antenuptial domicile".
(5) The English court would need to consider whether it would be contrary to English public policy to
6
recognise such a marriage. The public policy exception is discussed by Dicey and Morris in Exception 5, at pp.681-682, by reference to the decision in Cheni V Cheni [1965] P 67. But, as Dicey and Morris note, this exception is of uncertain application in general, and there is no authority which decides whether it would conflict with English public policy to recognise a marriage between a post-operative transsexual and a person of the same sex as that transsexual had prior to the gender reassignment surgery, when the transsexual is domiciled in a Member State of the Council of Europe (and the European Community) in which the marriage was celebrated and when the law of that country recognises the validity of the marriage. The fact that English law does not itself allow Rachel Horsham to marry a man in England does not determine the issue, because private international law is concerned with recognising that the rules of the relevant foreign law should normally apply to a case where the individuals are domiciled abroad.
(6) The United Kingdom submits that if Rachel Horsham is domiciled in the Netherlands, and if she contracts a marriage to a man in the Netherlands (such marriage being valid under the law of the Netherlands), there would be a strong argument for contending that English law recognises the validity of such a marriage. If Rachel Horsham wishes to contract such a marriage,
7
then she should exhaust her domestic remedies to establish whether English law would recognise the validity of a marriage celebrated by her in the Netherlands, by seeking an appropriate declaration in the English courts.
Birth Certificates
1.11 As the Commission noted at paragraph 27 of the Report in Sheffield (and at paragraph 28 of the Report in Horsham), an entry in the Register relating to births
"is regarded as [a] record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts".
1.12 In Cossey (Judgment at paragraphs 18-22), the Court considered the provisions of domestic law relating to birth certificates. The Court explained
"18. ... Registration of births is at present governed by the Births and Deaths Registration Act 1953 which requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born ... An entry in a birth register and the certificate derived therefrom are records of facts at the time of birth. Thus, in England and Wales, the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like.
19. The 1953 Act provides for the correction, by the
8
registrar or superintendent registrar, of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered
20. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it However, the practice of the Registrar General is to use exclusively the biological criteria : chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person’s ‘psychological sex’ is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, ie cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex".
13 Annex B to this Memorial contains a copy of the Births and
Deaths Registration Act 1953 (as amended), from Halsbury’s
Statutes (Fourth edition), volume 37, pp.722-759. The
United Kingdom points out
(1) As the Court observed in X, Y and z v United Kingdom (Judgment of the Court, 22 April 1997, paragraph 49) that
"in the United Kingdom a birth certificate is not in common use for administrative or identification purposes . ..,‘.
Indeed, the use of a birth certificate for identification purposes is discouraged by the
9
Registrar General. For a number of years, a birth certificate has contained a warning that it is not evidence of the identity of the person presenting it. In order to deter fraudulent use of birth certificates, people are recommended to ask for other evidence of identity. However, it is a matter for individuals to decide whether to follow this recommendation.
(2) For the United Kingdom to alter the birth register from an historical record of events to a record of current identity or current civil status would involve wide-ranging civil liberties implications which would need to be taken into account.
The Applicants alleged before the Commission (see paragraph 36 of the Report in Sheffield and paragraph 37 of the Report in Horsham) that there have been previous cases where an entry in the birth register has been amended by reason of gender reassignment surgery. The Applicants produced before the Commission three birth certificates as certified true copies of the amended entries in the birth register in relation to the sex of the individual concerned. The United Kingdom points out
(1) The alterations to the birth register occurred in
1944 (date of birth 1915) , 1951 (date of birth 1918) and 1960 (date of birth 1923)
10
(2) In each case, the amendments were carried out in accordance with the relevant provisions of the statute (or its predecessor), and in accordance with the general principle summarised in paragraphs 18-20 of the Court’s Judgment in Cossey (see paragraph 1.12 above)
. In each case, the Registrar General was satisfied (on the medical evidence then available) that an error had been made at the time when the birth was registered, and that at the date of birth the child was not of the sex which had been registered.
(3) In none of these cases did the Registrar General allow an alteration of the birth register because gender reassignment surgery had changed the sex of the individual. The principles applied by the Registrar General have remained the same, both before and after the decision of the High Court in Corbett v Corbett [1971] p 83. Prior to that decision, the Registrar had rejected a large number of applications by transsexuals for alteration of their birth certificate. Of course, medical knowledge has developed considerably in its ability to assist the Registrar General on what was the sex of the individual at the date of birth, and whether an entry in the birth register wrongly recorded the sex of the person at that date.
11
Social security and pensions
1.15 The Applicants remain male f or the purposes of English law (see paragraph 1.9 above). This applies to social security and pensions law. Therefore, the Applicants will have no right to a State pension until the age of 65 (and not 60, as is the case for women)
Sureties and Contracts
1.16 In paragraphs 22 and 24 of the Report in Sheffield, the Commission referred to complaints that
(1) The Applicant was required to disclose her previous name to a court when standing surety for a friend; and
(2) The Applicant was required to state her sex when entering into an insurance contract in respect of her car.
1.17 In order for the court to decide whether to accept a person as a surety for a defendant in criminal proceedings, it is appropriate that a check be made as to whether that person has a criminal record, either under her present name or under any former name. Therefore the person needs to disclose any previous name.
12
former name. It may also be appropriate for a company offering insurance to a person to be able to assess the details of her medical history. If the Applicants do not wish to deal with a company on such terms, then that is a matter between the Applicants and the company.
Police Computer Files
1.19 In paragraph 23 of the Report in Sheffield, the Commission referred to the complaint that the Applicant’s personal details were held on police computer files.
1.20 Section 21(4) of the Data Protection Act 1984 states that a data user shall not be required to comply with a request for information from an individual about data relating to that individual
"unless he is supplied with such information as he may reasonably require in order to satisfy himself as to the identity of the person making the request and to locate the information which he seeks ...".
Data users may have their own standard forms for such checks and the form may require a person to state their sex for the purpose of identification. If a person has changed his or her name, or sexual status, that person may not be correctly identified unless the former name and sex is stated. Police records need to be able to identify individuals with precision, and the former name and sex of a person are important items of information in this respect.
13
Employment
1.21 The Commission stated (at paragraph 30 of the Report in Sheffield and at paragraph 31 of the Report in Horsham) that a transsexual continues to be recorded for "employment purposes" as being of the sex recorded at birth.
1.22 For reasons identified in paragraphs 1.17 - 1.18 above, an employer may need to know the personal history of an employee, and in particular his or her former name and sexual identity, so that checks can be made to see if he or she has a criminal record, or so that previous employers can be contacted for references.
1.23 By reason of the judgment of the European Court of Justice in Case 13/94, p v S and Cornwall County Council [1996] ECR
1-2143 (see paragraph 2.9 below), it is unlawful for an employer to treat the Applicants less favourably in relation to employment opportunities by reason of the fact that they are post-operative transsexuals (unless there is a justification f or such adverse treatment in the specific circumstances of the case) . The Applicants have domestic remedies in relation to any such complaint.
1.24 Kristina Sheffield complained to the Commission that the Department of Employment files referred to her as "unemployable". In fact, this description derived from the Applicant’s own statements on her form claiming unemployment benefit and in interviews at West Ealing
14
Jobcentre, and had nothing to do with her transsexualism.
When the Applicant complained about this matter, the
Employment Service ensured that the description was removed
from the computer record. Annex C to this Memorial contains correspondence dealing with this matter, that is a letter from the Rt Hon. Sir George Young Bt MP dated 15 December 1993 and a reply from Mr M.E.G. Fogden, Chief Executive of the Employment Service, dated 10 January 1994. The Employment Service does not itself require clients to state whether they are transsexual. It will normally accept and respect the wishes of the client as to the sex by which he or she is to be known and treated.
Criminal Justice
1.25 The Commission referred (paragraph 35 of the Report in Sheffield and paragraph 36 of the Report in Horsham) to the Applicants’ complaints that they would be treated as men for the purposes of criminal justice, in particular in relation to’ the definition of the offence of rape, the sentencing of any person who committed a sexual assault on one of the Applicants, and the prison to which the Applicants would be sent if they committed a criminal offence.
1.26 With regard to the otrence or rape, section 142 of the Criminal Justice and Public Order Act 1994 amends section 1 of the Sexual Offences Act 1956 so as to define the offence of rape as covering vaginal or anal intercourse
15
with a person (male or female)
l42 of the 1994 Act a post-operative male to female transsexual could be the victim of vaginal rape.
1.27 In any event, an assault on one of the Applicants, whether of a sexual nature or otherwise, would be unlawful and would receive a punishment appropriate to the facts of the case. Whether the Applicants are regarded by English law as male or female, any person who carried out a serious sexual assault on one of the Applicants would (almost inevitably) be sentenced to a lengthy period of imprisonment.
1.28 The prison rules require male and female prisoners to be detained separately. In some cases, post-operative transsexuals have been placed in a prison catering for the sex which accords with their new social status. Consideration is given to the individual circumstances of each case of a transsexual sent to prison in order to determine what would be most appropriate.
complaints
declared inadmissible1. 29 The Reports of the Commission referred, under the heading "Particular circumstances of the case", to complaints which
the Commission itself declared inadmissible
(1)
In paragraph 21 of the Report in Sheffield, the
16
Commission referred to the complaints that the Applicant was required to obtain a divorce as a precondition to surgery being carried out; and that a judge terminated the Applicant’s access to her daughter because contact with a transsexual would not be in the interests of the child, with the consequence that the Applicant has not seen her daughter since then, a period of more than eight years. However, the Commission held that these complaints were inadmissible because of the failure to comply with the six-month time-limit under Article 26 of the Convention. See p.34 of the Commission’s Report in Sheffield. In any event, the United Kingdom does not accept that these allegations were well-founded on their merits.
(2) In paragraph 25 of the Report in Horsham, the Commission referred to the Applicant’s complaints that she "is forced to live in exile because of the legal situation in the United Kingdom". However, the Commission held that these complaints under Article 3 of Protocol No. 4 of alleged constructive expulsion from the United Kingdom had to be rejected because the United Kingdom is not a party to this Protocol. See p.32 of the Commission’s Report in Horsham. In any event, the United Kingdom does not accept that this allegation
was well — founded on its merits.
17
PART II THE ISSUES RAISED UNDER ARTICLE 8 OF THE CONVENTION
2.1 Article 8 of the Convention provides
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, f or the prevention of disorder or crime, f or the protection of health or morals, or for the protection of the rights and freedoms of others".
2.2 The United Kingdom submits that there was no breach of Article 8 in the circumstances of the present case f or the following main reasons
(l) As the Court has recognised, Contracting States enjoy a wide margin of appreciation in relation to positive obligations of respect for private life.
(2) Because of the complexity of the issues raised by transsexualism (in scientific, legal, moral and social terms) and because of the absence of any sufficiently broad consensus within the Member States of the Council of Europe, Contracting States enjoy an especially broad margin of appreciation in addressing such issues.
(3) Therefore Article 8 does not require a Contracting State generally to recognise for legal purposes the new sexual identity of
18
reassignment surgery, even though a transsexual may be socially accepted under that new sexual identity.
(4) There would be a breach of Article 8 only if substantial, practical detriments on an everyday basis were suffered by an Applicant as a result of the refusal of the United Kingdom to recognise for legal purposes that sex reassignment surgery has changed the sex of that Applicant.
(5) In the present case, there are no substantial, practical detriments on an everyday basis which could lead to the conclusion that the United Kingdom has exceeded the very broad margin of appreciation which it enjoys.
In assessing the reasoning contained in the Report of the Commission, the Court is invited to note that the Commission has consistently taken a different approach to issues of transsexualism to that set out in the case-law of the Court
(1) In Rees v United Kingdom (Judgment of the Court, 17 October 1986, Series A, No. 106), the Commission unanimously concluded that there had been a breach of Article 8. The Court disagreed.
in
19
held by 10 votes to 6 that there had been a breach of Article 12. The Court disagreed.
(3) In _X. Y and Z v United Kingdom (Judgment of the Court, 22 April 1997), the Commission held by 13 votes to 5 that there had been a breach of Article 8. The Court disagreed.
Margin of Appreciation Enjoyed by the United Kingdom
2.4 The Court has held that Contracting States enjoy a wide margin of appreciation in relation to positive obligations of respect f or private life under Article 8 of the Convention. See Johnston v Ireland (Series A, No. 112, Judgment of 18 December 1986, paragraph 55 (C)).
2.5 That margin of appreciation is especially broad in relation to the complex issues raised by transsexualism. See Rees (paragraph 37 of the Judgment), and X, Y and Z (paragraphs 44 and 52 of the Judgment). This is because there is little common ground between Contracting States in dealing with the difficult issues which transsexualism raises, and the law is very much in a transitional state. In B v France (Judgment of the Court, 25 March 1992, Series A, No. 232-C), the Court stated, at paragraph 48
"The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism.
It notes, however, in the light of the relevant studies carried out and work done by experts in this
still remains some uncertainty as to
20
the essential nature of transsexualism and that the
legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which
result are moreover extremely complex anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with
before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed); the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation), and so on. On these various points there is as yet no sufficiently broad consensus between the Member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments".
The scientific and legal position remains as stated by the
Court in paragraph 48 of the judgment of the Court in
France (see paragraph 2.5 above). As the Court explained in
X, Y and Z (paragraph 52 of the Judgment)
"transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States".
The difficulties in this area were recognised at The Council of Europe 23rd Colloquy on Transsexualism, Medicine and Law in 1993. The report of the proceedings has been published by the Council of Europe. The United Kingdom directs the attention of the Court to the following pages (copies of which are contained at Annex D to this Memorial)
21
(1) At p.30, Dr Russell Reid of the Hillingdon Hospital in London, England explained that "neither psychology/psychiatry nor the biosciences can provide a conclusive or even a satisfactory explanation of the etiology of gender identity disorders ... [M]uch still has to be learnt".
(2) At p.203, Professor Doek of Amsterdam stated that "transsexualism remains an enigmatic problem". He
added, at p.209, that "biological factors do not (yet) provide us with a satisfactory explanation for cross-gender identity development. Further research is necessary ...". He concluded (at p.210) that "much still has to be learnt".
(3) At p.239, Mr Hondius of the International Commission on Civil Status referred to the "lack of legal harmonisation between countries".
Since 1993, some further work has been carried out. The Applicants have relied on a study the results of which were published in Nature on 2 November 1995. This study suggests that the structure of the brains of male-female transsexuals differs from the brain structure of other men and that this may be a causal factor of gender identity disorder. The research cannot sensibly be said to have resolved the scientific and other problems. In the same of Nature, the editors published an independent
22
commentary by S. Marc Breedlove on the research. A copy both of the report and of the commentary are contained in Annex E to this Memorial. The commentary explains that the research is only a preliminary finding which leaves open many important questions concerning whether brain structure causes transsexualism:
(1) In the first paragraph, the commentary states that "the difficulties inherent in studying the divers sexual behaviour of humans ensures that this will be far from the final word on the subject".
(2) In the fourth paragraph, the commentary notes that it remains uncertain whether "some other feature, more mundane than the fascinating and psychologically complex phenomenon of transsexuality, is in fact responsible for the correlation" between the size of a particular area of the brain and transsexualism. The commentary suggests that the size of the particular area of the brain may have been affected by the oestrogen treatment of transsexuals, the drugs administered and the other medical treatment of them.
(3) In the seventh paragraph, the commentary notes that it also remains uncertain whether brain structure cause the transsexualism (which would then have physiological cause), or whether the fact of transsexualism, and the psychological consequences of it, affected the structure of the brain. As the
23
commentary observes (in the seventh paragraph), this "represents the chicken-or-the-egg dilemma endemic to brain correlates of behaviour". The commentary points out (in the eighth paragraph) that "three decades of neuroscience research have made it clear that experience can dramatically alter the structure and function of the brain". Therefore, in the penultimate paragraph, the commentary explains that
"At present these brain regions can only be measured post mortem. Until technology enables us to measure them repeatedly in the same person at different ages (before and after puberty, for example), there can be no definitive answer as to whether these regions direct psychological sexual differentiation or are themselves directed by that process".
2.9 The Applicants have also relied on the Judgment of the
European Court of Justice in Case 13/94, p v S and Cornwall
County Council [1996] ECR 1-2143. The United Kingdom draws
attention to the following matters
(1) p v S and Cornwall County Council was concerned with the narrow issue of whether a person dismissed from employment because of sex reassignment surgery was the victim of sex discrimination contrary to Directive 76/207. The European Court of Justice held that a dismissal for that reason was an act of sex discrimination, but it added (at paragraph 23 of the Judgment) that there may be a justification for that treatment on the facts of the particular case.
(2) PS and Cornwall County Council was not concerned at
24
all with the legal status of transsexuals, and in particular with whether, and in what circumstances, a State is obliged to recognise for legal purposes that a person’s sex has been changed by sex reassignment surgery. It was irrelevant to the argument and the judgment in P v S and Cornwall County Council whether P was now a woman, or remained a man, for legal purposes. The issue, and the only issue, was whether P’s employers could lawfully dismiss her because she had undergone sex reassignment surgery. That issue arose, and was determined in P’s favour, irrespective of whether she was now female, or remained male for legal purposes.
Because the European Court of Justice was not concerned with the legal status of a transsexual, or with any context in which States enjoy a margin of appreciation, the European Court did not address, and did not need to address, any of the scientific, legal and moral difficulties associated with sex reassignment surgery and with the consequent assessment by a State of the status of an individual.
For these reasons, the judgment of the European Court of Justice is authority only for the proposition that where a transsexual is denied a benefit because he or she is undergoing, or has undergone, sex reassignment surgery, such treatment amount to sex
25
discrimination. That does not assist these Applicants, because they are complaining not that they have been denied benefits by reason of the fact that they are post-operative transsexuals, but that in various legal respects the United Kingdom continues to regard them as male, and declines to recognise them as female.
The approach previously adopted by the Court
2.10 For the reasons set out in paragraphs 2.4-2.9 above, Article 8 does not require a Contracting State generally to recognise for legal purposes the new sexual identity of a person who has had sex reassignment surgery, even though a transsexual may be socially accepted under that new sexual identity. The Court so stated in Cossey (paragraph 40 of the Judgment) and it repeated this conclusion in B v France (paragraphs 46-48 of the Judgment). Therefore, the Applicants have no general right under the Convention to legal recognition as women.
2.11 The Court has recognised, however, that there may be circumstances in which the refusal of the State to grant legal recognition to the new sexual identity of a transsexual may result in a breach of Article 8. Whether the State’s treatment of transsexualism amounts to a breach of a positive obligation of respect under Article 8 will depend on the application of the fair balance between the general interests of the community and the interests of the individual. This, in turn, will depend on the nature and
26
degree of detriment suffered by that individual. So
(1) In Cossey (at paragraphs 36-42 of the Judgment) the Court concluded that there was no breach of Article 8 by reason of the refusal of the United Kingdom to issue the Applicant with a birth certificate stating her sex as female after sex reassignment surgery. This was because of the purpose of a birth certificate in the United Kingdom (it is a statement of historical fact as at the date of birth, and not a statement of current identity) and the limited practical effect of a birth certificate in the United Kingdom. (The Court followed its earlier decision to the same effect in Rees).
(2) By contrast, in B v France (at paragraphs 56-58 of the Judgment), the Court explained that the Applicant was obliged to have all of her identity documents (identity card, passport, voting card), her cheque books, and her official correspondence (telephone accounts, tax demands etc) in the name of Norbert, even though she was a post-operative transsexual who was socially accepted as a female. The Court accepted (paragraphs 59-63 of the Judgment) that because of the substantial practical effects in her everyday life, she was daily subjected to treatment which was not compatible with respect for her private life as required by Article 8.
27
Compliance with Article 8 of the Convention in these cases
"not subject to the daily humiliation and embarrassment"
which concerned the Court in B v France.
28
Applicants were concerned about the risk at intrusive and distressing inquiries, and an obligation to make embarrassing disclosures,
"with care, such situations could be avoided".
2. 13 The Commission rightly recognised (at paragraph 46 of the Report in Sheffield, and paragraph 47 of the Report in Horsham) that each of the Applicants had been able to change her name and key documentation (such as passport and driving licence). However
(1) The Commission was concerned that the Applicants might be required, for legal purposes, to disclose their original sex (for example when appearing in court, or entering into contracts). But, as explained in paragraphs 1.16 - 1.24 above, the Applicants are required to disclose such information because it may assist others to identify (with justification) the record - criminal, medical or otherwise - of the person with whom they are dealing. In any event, these are very rare occurrences that cannot satisfy the test stated by the Court in B v France of immediate, substantial, practical disadvantages on an everyday basis. The Commission specifically referred to the occasion when the Applicant Kristina Sheffield, in court as a surety, was required to disclose her original birth name. But, as explained in paragraph 1.17 above, in order for the court to decide whether to accept a person as a surety for a defendant in
29
criminal proceedings, it is appropriate that a check be made as to whether that person has a criminal record, either under her present name or under any former name.
(2) The Commission also referred to the fact that the Applicants remain subject to the legal regimes
applicable to women,in relation to pension
entitlements after reaching retirement age. See
paragraph 1.15 above. But this is simply a consequence of the refusal of the United Kingdom to recognise that the Applicants have changed their sex for legal purposes. As explained in paragraph 2.10 above, the United Kingdom has no positive obligation in this respect.
2.14
48 of the Report in Horsham, the Commission adopted a test very different to that stated by the Court. The Commission suggested that there was a breach of Article 8 even though the Applicant was not suffering immediate, substantial,
practical disadvantages on an everyday basis. For the
reasons set out in paragraphs 2.4 2.11 above, the
Commission was wrong to conclude that a breach of Article
8 is established by the risk of intrusive and distressing enquiries, and the obligation to make embarrassing disclosures, which may result in internal conflict or stigmatisation. Such a test substitutes for the principles
30
stated by the Court a general obligation on the United Kingdom to recognise that persons who have undergone sex reassignment surgery have changed their sex for legal purposes.
2. 15 The Commission commented (at paragraph 49 of the Report in Sheffield, and paragraph 50 of the Report in Horsham) on amendments to the register of births. The United Kingdom responds
31
register is marked accordingly. This was recognised by the Court in Cossey (paragraph 19 of the Judgment). However, the Applicants in the present case are not concerned simply to obtain such a mark on the birth register.
(3) As explained in paragraph 1.13(1) above, a birth certificate is not in common use for administrative or identification purposes. Indeed, the use of a birth certificate for identification purposes is discouraged by the Registrar General. So the fact that the Applicants’ birth certificates record their sex as male does not involve the immediate, substantial, practical disadvantages on an everyday basis which formed the basis of the Court’s judgment in B v France.
(4) As explained in paragraph 1.13(2) above, for the United Kingdom to alter the birth register from an historical record of events to a record of current identity or current civil status would involve wide-ranging civil liberties implications which would need to be taken into account.
2.16 The Commission stated (in paragraph 50 of the Report in Sheffield, and paragraph 51 of the Report in Horsham) that, in its view, English law could provide for transsexuals to be given prospective legal recognition of their gender re 32
assignment, without necessarily destroying the historical nature of the birth register. The Commission stated that if transsexuals receive passports and driving licences in their new identity, it was not apparent why they should remain under a legal obligation to declare their birth gender in other official or employment or contractual contexts. The United Kingdom responds
(1) The Commission has failed to apply the test stated by the Court. Instead of asking whether there are immediate, substantial, practical disadvantages on an everyday basis, the Commission suggested a general duty on the United Kingdom to recognise for legal purposes the sex reassignment surgery carried out on the Applicants.
(2) The Commission failed to recognise that the rare occasions on which the Applicants are required to declare their birth sex in official or legal contexts. are because (as explained in paragraph 2.13(1) above) the provision of such information may assist others (with justification) to identify the record (criminal, medical or otherwise) of the person with whom they are dealing. Transsexuals are provided with passports and driving licences in their new sexual identity because there is no good reason for denying them such documents.
3) The Commission recognised that there may be a
33
legitimate interest in the context of life insurance for persons to be required to disclose details of their medical history, but suggested that there would appear to be no such automatic necessity to declare birth gender in subscribing to house insurance. But the company providing house insurance may legitimately wish to know the applicant’s history (under her present or an earlier name)
"there would have to be detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest. Having regard to the wide margin of appreciation to be afforded the State in this area and to the relevance of protecting the interests of others in striking the requisite balance, the positive obligations arising from Article 8 cannot be held to extend that far".
2.17 The Commission recognised (at paragraph 51 of the Report in Sheffield and paragraph 52 of the Report in Horsham) that there are legitimate public interest considerations to weigh in the balance against the Applicants’ interests, where it is being claimed that established legal principles and practices should be modified. However, the Commission failed to recognise the width of the margin of appreciation enjoyed by Contracting States in this context (see
paragraphs 2.4
- 2.6 above), and failed to apply the principles previously stated by the Court (see paragraphs2.10
34
2.18 The Commission suggested (at paragraph 52 of the Report in Sheffield and paragraph 53 of the Report in Horsham) that there was a clear trend in Contracting States towards the legal acknowledgement of gender re-assignment. The United Kingdom points out
(1) The Commission stated that it was applying its own conclusions in X, Y and Z. But, in X, Y and Z, the Court recently disagreed with the majority of the Commission and found no breach of Article 8. The Court concluded (at paragraph 52 of the Judgment in X. Y and Z) that
"transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States
(2) Most of the legal developments to which the Commission referred were noted by the Court at paragraph 40 of its Judgment in Cossey (and by Judge Martens at
paragraph 5.5 of his Dissenting Opinion).
Nevertheless, the Court concluded that there was no sufficiently broad consensus between the Member States of the Council of Europe. There remains no such consensus
(3) The Commission referred to the Judgment of the European Court of Justice in P v S and Cornwall County
Council. For the reasons set out in paragraph 2.9 above, that judgment was not concerned with whether, and in what circumstances, a State is obliged to
35
recognise for legal purposes that a person’s sex has been changed by sex reassignment surgery.
2.19 The Commission referred (at paragraph 53 at the Report in Sheffield and paragraph 54 of the Report in Horsham) to scientific and medical developments. The United Kingdom comments
(1) The specific research into brain structure does not assist the Applicants for the reasons set out in paragraphs 2.7
(2) As the Court observed in Rees (paragraph 45 of the Judgment), the fact that doctors have carried out the medical treatment with official approval does not impose legal obligations on the Contracting State to recognise the change of sex for legal purposes
"If such arguments were adopted too widely, the result might be that Government departments would become over-cautious in the exercise of their functions and the helpfulness necessary in their relations with the public could be impaired. In the instant case, the fact that the medical services did not delay the giving of medical and surgical treatment until all legal aspects of persons in the applicant’s situation had been fully investigated and resolved, obviously benefited him and contributed to his freedom of choice’.
(3) In X, Y and Z, doctors had given treatment to the First Applicant (a female-male transsexual) and his female partner (the Second Applicant) which resulted in the birth of the Third Applicant by artificial insemination by donor. But the fact that doctors had
36
carried out the procedure did not (in the Court’s judgment) entitle the First Applicant to be registered as the father of the Third Applicant.
Conclusion
2. 20 For all these reasons, the United Kingdom invites the Court to conclude that there was no breach of Article 8 in the circumstances of the present case.
37
PART III
: THE ISSUES RAISED UNDER ARTICLE 12 OF THE CONVENTION
3.1 Article 12 of the Convention provides
"Men and women of marriageable age have the right to
3.2 The Commission concluded by 9 votes to 7 in the case of Sheffield (see paragraphs 56-61 of the Report) and by 10 votes to 6 in the case of Horsham (see paragraphs 57-62 of the Report) that it was unnecessary to examine separately the complaints under Article 12 of the Convention.
3.3 In Sheffield, of the 7 dissenting members, 5 were of the view that there was a breach of Article 12, and 2 were of the view that there had been no breach of Article 12.
3.4 In Horsham, all 6 dissenting members were of the view that there was no breach of Article 12.
3.5
The United Kingdom submits that there was no breach of Article 12 in either of these cases.
3.6 The Court held in Cossey (paragraphs 43-48 of the Judgment), following its earlier judgment in the case of
Rees (paragraphs 48-51 of the Judgment), that it was not a
breach of Article 12 for English law to prevent a person
who has had gender reassignment surgery from marrying a person of the sex which he or she had at birth.
38
3.7 In X, Y and Z v United Kingdom (Application No. 21830/93, decision of 1 December 1994), the Commission held to be inadmissible as manifestly ill-founded a claim that Article 12 conferred a right for a transsexual to marry a person of the same sex as the transsexual had at birth.
3.8 The reasoning of the Court in Cossey and Rees was that
(1) The right to
(2) This appears from the wording of Article 12 which makes clear that the main purpose of the provision is to protect marriage as the basis of the family.
(3) Article 12 recognises that the right to marry shall be subject to the national laws of the Contracting States.
3.9
The United Kingdom points out that(1) Contracting States have a broad margin of appreciation in relation to regulation of the right to marry, since Article 12 states that it applies "according to the national laws governing the exercise of this right". No doubt the Convention refers to "national laws" because it recognises that in each society, there will be distinct conceptions of the role and purpose of marriage, and the circumstances in which the solemn
39
state of marriage should be entered into.
(2) As explained in paragraphs 2.5
- 2.7 above, there is no consensus across Contracting States in. addressing the difficult issues which transsexualism raises. It cannot be said that the refusal of the United Kingdom to recognise a marriage between a person born male and another male is outside the scope of the margin of appreciation enjoyed by Contracting States under Article 12.
(3) This is especially so when English law does not prevent either of the Applicants from living together with any partner they wish.
3.10 In any event, in the Horsham case, as pointed out by four members of the Commission (at p.15 of Report),
(1) The Applicant has been living for some time in the Netherlands without any expressed intention of returning to the United Kingdom. In particular, she has not expressed any intention to return to the United Kingdom after marriage, or in order to be married.
(2) Were she to marry in the Netherlands, such a marriage may well be recognised in the United Kingdom. The Applicant has failed to exhaust domestic remedies. See paragraph 1.10
above.
40
3.11 In Sheffield, five dissenting Members of the Commission concluded that there was a breach of Article 12 in that the Applicant was effectively denied the right to marry (Report at p.16). The United Kingdom submits:
Applicant to marry a man. The United Kingdom does not
41
accept that it has any such obligation. But in any event, its justification is that explained by the Court in Rees and Cossey a belief that the purpose of marriage as the foundation of the family requires that it be confined to the union of a man and a woman. Other persons may live together as partners, without interference by the United Kingdom.
3.12 For these reasons, the United Kingdom submits that there was no breach of Article 12 in the circumstances of the present cases.
42
PART IV: THE ISSUES RAISED UNDER ARTICLE 14 OF THE CONVENTION READ WITH ARTICLE 8
4.1 Article 14 of the Convention states
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
4.2 The Commission unanimously concluded (at paragraphs 62-66 of the Reports in Sheffield and Horsham) that the Applicants’ complaints under Article 14 of the Convention did not give rise to any separate issue.
4.3 The Court stated in X, Y and Z (at paragraph 56 of the Judgment)
"The Court considers that the complaint under Article 14 is tantamount to a restatement of the complaint under Article 8, and raises no separate issue. In view of its finding in respect of the latter provision [that there was no breach]
The same is true in the present cases.
43
III above the basis for the treatment of the Applicants in
all relevant respects.
4.5 The Applicants have complained that there has been
discrimination by inconsistent treatment in the
rectification of birth certificates in the United Kingdom.
As explained in paragraph 1.14 above, there is no substance
in these complaints. Rectification of the register has
occurred, but only where a mistake was made in relation to
the sex of an individual as at the date of their birth.
There are no cases of amendment of the register by reason
of a change of sex.
44
PART V : THE ISSUES RAISED UNDER ARTICLE 13 OF THE CONVENTION
5.1 Article 13 of the Convention states
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".
5.2 The Commission unanimously concluded that there was no breach of Article 13 (paragraphs 67-71 of the Reports).
5.3 The United Kingdom submits that the Commission was correct so to conclude
(1) As the Commission observed (paragraph 70 of the Reports), the Applicants complaints relate essentially to the content of United Kingdom law. Article 13 does not require a remedy to be provided in domestic courts for such complaints.
(2) In any event, Article 13 does not require a remedy in domestic law in respect of any supposed grievance under the Convention : the grievance must be an arguable one in terms of the Convention. See Boyle and Rice v United Kingdom (Judgment of the Court, 27 April
1988, Series A, No. 131, paragraphs 52-55). None of the Applicants’ complaints is properly arguable.
45
PART VI ARTICLE 50 OF THE CONVENTION
6.1 If, contrary to the above submissions, the Court were to decide that there had been a breach of the Applicants’ rights under the Convention, a finding to that effect, plus payment of the reasonable legal costs of the Applicants in bringing these Applications, would provide just satisfaction for the purposes of Article 50 of the Convention.
46
PART VII CONCLUSIONS AND REQUESTS TO THE COURT
7.1 In the light of the matters set out above, the Government of the United Kingdom requests the Court to decide and declare that the facts disclose no breach of the Applicants’ rights under the Convention.
Susan McCrory
Agent of the Government
of the United Kingdom
17 October 1997