IN THE EUROPEAN COURT OF HUMAN RIGHTS

RACHEL HORSHAM -v- THE UNITED KINGDOM

THE UNITED KINGDOM

  MEMORIAL OF THE APPLICANTS

 1. By decision dated 19 January 1996, the European Commission of Human Rights ("the Commission’) declared admissible the application of Kristina Sheffield and Rachel Horsham ("the Applicants") against the United Kingdom ("the Respondent").

2. In its two reports of 21 January 1997 ("the Reports"), the Commission concluded that there had been a violation of Article 8 of the Convention, that no separate issue arose under Articles 12 and 14 Convention and that there had been no violation of Article 13 of the Convention.

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This Memorial, submitted on behalf of both Applicants, is divided into the following sections:

Section 1 Summary of Submissions (paras 4 to 14)

Section 2 The domestic law (paras 15 to 42)

Section 3 The facts - Kristina Sheffield (paras 43 to 58)

Section 4 The facts - Rachel Horshain (paras 59 to 78)

Section 5 The medical evidence (para 79

Section 6 Legal Developments (paras 80 to 85)

Section 7 Additional Submission under

Article 14 read with Article 8 (paras 86 to 108)

Section 8 Article 50 (paras 109 to 112)

Section 9 Conclusions and Request to the Court (para 113)

The following Annexes are supplied with this Memorial:

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SECTION 1 SUMMARY OF SUBMISSIONS

The Applicants respectfully ask the Court to uphold the conclusions of the Commission and to find that the Convention has been violated in the present case.

The Applicants have been informed that it is often the practice of this distinguished Court to do, as the majority of the Commission have done in their Report, and to examine the issues in the light of the Convention provision which is considered most pertinent and, if a violation is found of that provision, not to examine other possible provisions.

In its Report, the Commission gave compelling reasons why Article 8 has been violated in the Applicants’ case and expressed the view that, in these circumstances, it is not necessary to consider Article 12 or 14 separately. The Applicants will be content if the Court endorses the Commission’s reasoning on these points. The Applicants accept the Commission’s conclusion on Article 13 and, accordingly, the issue under Article 13 is not pursued further. As regards, Article 14, if the Court endorses the Commission’s characterisation of the case, the Applicants accept that no separate issue will arise under Article 14 as violation will be found on Article 8 read alone. Article 14, however, is not abandoned because the Court is master of the characterisation of the law. The Applicants submit that there is a compelling case under Article 14 read with Article 8. This is outlined at Section 7 below and is quite

different to that previously put to the Court in Cossey. The Applicants request the Court to rule upon their Article 14 submission should, for any reason, the Court decide not to follow the reasoning of the Commission on Article 8 read alone.

• Since the Applicants are primarily asking the Court to follow the Commission, this Memorial concentrates on supplementing the contents of the Commission’s Report on the various topics identified at paragraph 3 above.

• The main object of bringing the present case is to end the awful plight the Applicants and other post operative transsexuals face in Britain today. As the Commission’s Report details and this Memorial further explains, the plight of post operative transsexuals is very grim indeed. There is no good reason why the horrible situation of having to be identified frequently in a gender other than the one they now have should continue.

The Applicants noted, with interest, the pledge made by the new British Government which, in its General Election manifesto, stated that it was "committed to ending unjustified discrimination wherever it exists".

0. In the light of that General Election pledge, those acting for the Applicants raised with the new Government whether this case might be resolved by a friendly settlement. On 26

Page 35 of the Manifesto of New Labour "Because Britain Deserves Better".

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September 1997, the Government replied that, although it saw no possibility at this stage, due consideration may be given to any workable solutions proposed. It is the intention of those acting for the Applicants to prepare and to offer workable proposals for the Government’s consideration. If there is a real prospect of sensible reform occurring, then, of course, the Applicants would be agreeable (as has occurred in Sutherland v United Kingdom) to have consideration of the present case stayed to give the Government the time necessary for a review and for implementation of a workable solution. Those acting for the Applicants undertake to keep the Court informed of any developments in this regard.

1. Should, unfortunately all efforts to promote consideration of sensible workable solutions come to nothing and this case proceeds, then, for reasons outlined in the next two paragraphs, the Applicants respectfully submit that it will be particularly important for this Court to give a clear judgment on the substance and to find violation of the Convention.

2. 11 years ago in Rees, whilst rejecting the Commission’s view that the United Kingdom’s treatment of transsexuals violated the Convention at that time, this Court stated that it was conscious of how serious the problems and distress caused to transsexuals are. It recalled the principle that the Convention has always to be interpreted and applied in the light of current circumstances. The Rees ruling on Article 8 concluded at paragraph 47 with the

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statement (which was then unprecedented in a case where no violation had been found) that the United Kingdom should keep the need for appropriate legal measures under review having regard particularly to scientific and societal developments. In 1990 in Cossey, by a narrow margin, the Court adhered to the position it had taken in Rees, but again the Court reiterated the importance of the Government keeping under review the need for appropriate legal measures in this area.

Sadly for the Applicants, nothing by way of review of the law affecting transsexuals has occurred during the last 11 years. If, even with this case pending and the Commission’s Report available to it, the new Government, committed to ending unjustified discrimination, finds itself unable to progress the matter, then it will be very clear, the Applicants respectfully submit, that priority will only be given to helping the plight of British transsexuals if this Court declares that the current legal position does not comply with the Convention.

Accordingly, we emphasise how very important the Court’s ruling will be should efforts to resolve the matter out of Court come to nothing. In these circumstances and particularly bearing in mind Rule 51(1) of Rules of Court A, the Applicants respectfully request that consideration be given to passing jurisdiction over this case to a Grand Chamber.

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SECTION 2 THE DOMESTIC LAW

15. The Applicants respectfully adopt the Commission’s statement of the "Relevant domestic law and practice" (part B, paras. 25 to 31) and, for that reason, only highlight the most important features of English law as it affects the position of those who, like the Applicants, have undergone gender re—assignment surgery. The Court is also respectfully referred to its own summaries of the relevant domestic law, as at the relevant times, set out in its judgments in Rees v United Kingdom² and Cossey v United Kingdom³. This Section deals in turn with the following points:

(a) Definition of "sex" and change of birth certificates.

(b) Marriage.

(c) Criminal Law.

(d) Social Security

(e) Employment

(a) Definition of "sex" and change of birth certificates

16. Section 1(1) of the Births and Deaths Registration Act 1953 ("the 1953 Act") requires that the birth of every child born in England and Wales must be registered by the registrar of births and deaths for the sub-district where the child was born. Registration includes "entering

2 Series A No 106, (1987) 9 EHRR 56 at paras. 18 to 29 Series A No. 184, (1991) 13 EHRR 622 at paras. 15 to 26

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such particulars concerning the birth as may be prescribed", which include inter alia the sex of the child.

17. Neither the 1953 Act nor the relevant statutory instruments made thereunder define the meaning of "sex". The Registrar General, following the approach adopted by Mr Justice Ormrod in the case of Corbett v Corbett (Otherwise Ashley)⁴ in the context of marriage, in determining the issue of "sex" uses purely biological criteria, ie. chromosomal, gonadal and genital. Ormrod J. stated:

"The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I ant not concerned to determine the ‘legal sex’ of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with ma]e chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, i.e. the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. "5

18. As was stated in the letter from John Horam from the Respondent’s Department of Health to Sir George Young, Miss Sheffield’s Member of Parliament, dated 12 January 19966:

"The Registrar General, traditionally, has relied on biological criteria. It is on this basis, particularly the external genitalia, that information is supplied by the person registering the birth (usually a parent) to the registrar of births and deaths. This practice can best be described as one of

[1971] P 83 ibid. at p. 106C, emphasis added. 6 Annex3.

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common sense, there being no other obvious criteria as a basis on which to make a decision. .... No ‘governing medical body’ is involved and reliance has not been placed on any particular published medical authority."

The above statement shows that the Registrar General disregards the now substantial medical evidence relating to the determination of "sex" by reference not only to the criteria laid down by Ormrod J but also by reference to the individual’s psychological sex and to the fifth criteria, the "sex of the brain" and the position of transsexuals resulting from that medical evidence. The Registrar General also disregards the "psychological sex" which appears to have been the determining factor in the case of Elizabeth/Ewan Forbes⁷ and is a criteria used in many countries for determining sex, particularly in relation to transsexuals.

19. Although in his judgment Ormrod J stated that he was only concerned with determining the legal sex of the party to that case for the purposes of marriage, the approach adopted by him has since been endorsed as of more general application by the Court of Appeal in R v Tan⁸.

20. Section 29 of the 1953 Act, however, provides for a power to correct the register:

"29 Correction of errors in registers

(1) No alteration shall be made in any register of live-births ... except as authorised by this or any other Act.

Forbes v Forbes (1965), one of the cases referred to at paragraph 22 below.

8 [1983] 1 QB 1053 at 1064

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(2) Any clerical error which may from time to time be discovered in any such register may, in the prescribed manner and subject to the prescribed conditions, be corrected by any person authorised in that behalf by the Registrar General.

(3) An error of fact or substance in any such register may be corrected by entry in the margin (without any alteration of the original entry) by the officer having the custody of the register, ... upon production to him by that person of a statutory declaration setting forth the nature of the error and the true facts of the case made by two qualified informants of the birth ... with reference to which the error has been made, or in default of two qualified informants then by two credible persons having knowledge of the truth of the case.’9

21. However, section 29 only allows amendments to be made where:

A. there was a clerical error;

B. the apparent genital sex of the child was wrongly identified; or

C. the biological criteria are not congruent.

As is apparent from the present cases and others, the Registrar General takes the view that in cases of gender re-assignment the historic information contained in the register cannot be said to be incorrect and therefore no amendment can be made. The Divisional Court (Kennedy U and Forbes J) rejected a judicial review challenge in its judgment in the case of R v Registrar General for England and Wales ex parte P & G’°.

9.emphasis added; The procedure for making any such correction is further specified in Regulation 58 of the Registration of Births and Deaths Regulations 1987

(SI 1987 No 2088) 10 judgment of the High Court of 16 February 1996

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22. However, notwithstanding the stance now taken by the Registrar General, there is increasing evidence that amendments have been made to the Register some considerable time after the original registration of the birth, following gender re—assignment surgery. Annex 1 to this application exhibits birth-certificates and press reports relating to some of these annotations/corrections made (following gender re—assignment surgery), such as that relating to Robert Cowell, married and father of two children, whose entry in the register was amended to read "Roberta Elizabeth" and "Girl", some 33 years after the original entry". Just like the Applicants in this case, Robert Cowell was a member of the British armed forced prior to his gender reassignment surgery; he served as a spitfire pilot in the Royal Airforce. Further reference is made to the material relating to Dr Elizabeth ForbesSempill. Following gender reassignment surgery, not only was her/his birth certificate entry amended to read "Ewan Forbes-Sempill", "male", but, in full knowledge of the facts and apparently contrary to a finding by the Court of Session, the then Home Secretary confirmed his succession as heir male" to his family’s baronetcy.

23.The evidence included in Annex 1 is the result of the researches of the Applicants; however, due to an attitude of lack of co-operation and invocation of confidentiality by the Respondent, the Applicants have been unable to obtain further evidence. Dr Lynne Jones MP in the debate in

11.see Robert/Roberta Cowell; George/Georgina Turtle; Laura/Laurence Dillon; Joyce/Robert Allen and Elizabeth/Ewan Forbes Sempill etc.

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the House of Commons concerning the Gender Identity Bill, a Private Members Bill that sought to overcome the difficulties in law encountered by inter alia the Applicants, stated that the Office of Population Censuses and Surveys had informed her that in the course of 10 years there had been some 30 applications for correction of the sex recorded at birth, most of which had been granted’². Her evidence together with the specific and striking evidence of the examples annexed hereto demonstrate at the minimum that it is both practicable and possible, contrary to previous assertions on behalf of the Respondent, for the Register to be annotated and/or to be amended.

24. Indeed in the context of discussion following a talk to the Medico-Legal Society on 9 March 1972 given by Orinrod J., speaking extra—judicially’³, a Dr John Burton reports how he went to Somerset House in relation to an individual who had undergone gender re-assignment surgery and was directed to Department "D.6 Sex Change" which consisted of at least one clerk and one expert. This evidence indicates that, at least in the past, it was possible to amend birth certificates in relation to transsexuals.

  25. Furthermore, as a matter of domestic law, the register is regularly annotated in cases of adoption. Under the

Adoption Act 1976 ("the 1976 Act"), Section 50 and Schedule 1, the name change of an adopted child is registered by the Registrar General. Paragraph 4(1) of Schedule 1 of the

12 Hansard, 2 February 1996, cal. 1289 13 Annex 7, at p. 88

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1976 Act and regulation 49 of the Adoption Rules provide that, if within one year of the making of an adoption order, the adopter satisfied the court that there is an error in particulars of the order or that the child has been given a new name in addition to or substitution for the names stated in the order, the court may order and direct that the register be amended.

26. A system very similar to that in use in the context of adoption formed the basis of the Private Members Bill, the Gender Identity Bill. This Bill was introduced by Alex Carlile QC MP but failed to become law without the support of the then Conservative Government.

(b) Marriage

27. The state of the English law relating to marriages is authoritatively set out in two opinions by Dr S M Cretney QC annexed hereto as Annex 2. Dr Cretney, now a Senior Fellow of All Souls College Oxford, is one of the most distinguished experts in the United Kingdom on family law issues and related conflict of law questions. He is also a Fellow of the British Academy and is a past Member of the Law Commission who had special responsibility for its family law programme.

28. Under Section 11(b) of the Matrimonial Causes Act 1973 ("the 1973 Act") any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down

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by Ormrod J in Corbett v Corbett (as set out above). As a consequence, any marriage between a male—to—female transsexual to a man would, as a matter of English law, be void’⁴.

29. Section 12(a) of the 1973 Act further makes any marriage voidable, where either party is incapable of consummating the marriage, which under English law requires "the ability to have ordinary and complete sexual intercourse, involving erection of the male member and penetration of the female"5. As Ormrod J held in Corbett v Corbett:

"In any event, however, I would, if necessary, be prepared to hold that the respondent was physically incapable of consummating a marriage because I do not think that’ sexual intercourse, using the completely artificial cavity constructed by Dr Burou, can possibly be described ... as ‘ordinary and complete intercourse’ or as ‘vera copula — of the natural sort of coitus’. In my judgment, it is the reverse of ordinary and in no sense natural."’⁶

30. As a consequence of the state of English law:

A. not only would any marriage between a male—to—female transsexual and a man be void, further or in the alternative, it could also be avoided on the basis that the transsexual was incapable of consummating the marriage; and

B. any marriage between a male—to—female transsexual, who in the eyes of the law remains a man, to a woman would

14 It is important to remember in this context that Kristina Sheffield was told by her consultant surgeons that before she could have her gender re—assignment surgery she would have to divorce her wife because "two women(!)" could not be married.

15 Opinion of Dr S M Cretney at p. 4 - see Annex 2 16 ibid. at p. 107 F to G

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also be voidable, and therefore subject to the constant threat of annulment, again because the transsexual would be incapable of consummating the marriage.

31. In addition to the absolute inability of a transsexual to contract any form of marriage in England, the English rules on the conflict of law would also act so as to deny the recognition of any marriage contracted by such a transsexual in another country where such marriages would be possible in law, unless the transsexual could establish to the courts that she had established a residence in that other country "with the intention of remaining in that country permanently"⁷. However, even where such animus manendi could be established there is substantial doubt as to whether such a marriage would be recognised by the English courts. One of the leading textbooks on English family law, Bromley’s Family law’⁸ describes it as "inconceivable" that such a marriage would be recognised, as its recognition would be "unconscionable and offensive to the conscience of the English court."

32. As a matter of English law, British transsexuals are thereby effectively prevented from contracting any form of marriage anywhere in the world. The specific impact on Rachel Horsham is outlined later.

17 Dr Cretney’s supplemental opinion at para. 5 18 8th edition 1992 at p. 60

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(c) Criminal law

33. Marriage is also one of the many areas of law where transsexuals are forced to declare the sex as registered at birth. Section 28(1) of the Marriages Act 1949 requires that any person seeking a certificate or licence to marry must make a solemn declaration that she believes that there is "no impediment of kindred or alliance or other lawful hindrance to the marriage". To make a false statement in this context constitutes a criminal offence under Section 3 of the Perjury Act 1911 punishable, on indictment, by up to seven years imprisonment and/or a fine. The making of such a statement by a transsexual was described, in the context of family law proceedings, as a "most serious offence"¹⁹. The finding that the transsexual had been "guilty" of perjury led the High Court and the Court of Appeal to hold that, as a matter of public policy, the transsexual was not entitled to financial relief from his ex-wife, despite the fact that they had been "married" (subsequently declared a nullity) for some 17 years.

34. The Perjury Act 1911 further criminalises the making of a false statement covering a wide spectrum of activities within which transsexuals may be forced to disclose their sex as registered in the birth certificate:

A. in sworn evidence — imprisonment up to seven years and/or fine (Section 1);

Mr Justice Hollis as quoted on appeal by Lord Justice Ward in J v ST (Formerly J)(Transsexual) [1997] 1 FLR

402 at 412H

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B. unsworn evidence — imprisonment up to 2 years and/or fine (Section lA);

C. in sworn statement not in the context of judicial proceedings - imprisonment up to 7 years and/or fine

(Section 2);

D. in a statutory declaration or any declaration, statement etc. which she is required (or authorised) to make under an Act of Parliament - imprisonment up to 2 years and/or fine (Section 5).

35. The experience of Kristina Sheffield before domestic courts shows the real intrusion that such criminal laws have on someone in her circumstances.

(d) Social Security

36. In the context the context of social security law, English law continues to treat transsexuals according to their registered sex and male-to—female transsexuals, like the Applicants, will not be permitted to receive a pension at the age of 60 as all other women but will only qualify for such a pension when they reach the age of 65, the retirement age set down form men²⁰.

37. In a letter to Miss Sheffield, the Department of Employment²’ expressly stated:

 20 in Cossey v United Kingdom, this Court makes reference to two decisions by the National Security Commissioners (as they then were) R(P)l and R(P)2 of 1980 which held that this was so. 21 letter dated 22 March 1994, Annex 4

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"Under current legislation a transsexual cannot obtain a revised birth certificate and the DSS is therefore unable to amend records of their gender."

38. It should be noted, however, that this is worse than the position was 25 years ago according to Mr Justice Ormrod, the judge who decided the case of Corbett v Corbett, speaking extra-judicially. In the context of his talk to the Medico-Legal Society on 9 March 1972, Ormrod J stated:

"In this context, and in the social insurance situation there is nothing to stop the transsexual making arrangements with the insurers or the Department of Health to be treated as a special case and insured in the adopted sex. ,,22

That this was then the position is also confirmed by the letter from the Department of Employment to Miss Sheffield (referred to above). However, neither that letter nor any other communication from the Respondent has ever explained why the position changed in 1975.

(e) Employment

39. In the context of English employment law, transsexuals, until very recently, were not protected against discrimination in the work place. This was established as early as 1977, when, in a case involving the dismissal of a female-to-male transsexual, an industrial tribunal in Cambridge held:

the laws of this country and the SDA [Sex Discrimination Act] in particular envisage only two sexes, namely male and female. The current edition of the Shorter Oxford English Dictionary defines male as of or belonging to the sex which begets offspring or performs the fecundating function. The same

22 Annex 7, at p. 84; see also the discussions after Ormrod J’s talk at pp. 86 ff.

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dictionary defines females as belonging to the sex which bears offspring. On her own evidence the applicant, whatever her physiological make up may be, does not have male reproductive organs and there was no evidence that she could not bear children. the Tribunal decided that for the purposes of the SDA the applicant was a woman.

Undoubtedly the respondents had dismissed the applicant because of their discovery that she was a female but was that discrimination? In the circumstances did the respondents treat the applicant on the grounds of sex less favourably than they would have treated a man? If the applicant had been a man and had he held himself out to the respondents as a female and been employed as such and used the female toilet facilities and the like and it had been discovered that he was a man the Tribunal had no hesitation in deciding that in the circumstances the respondents would have dismissed him. Accordingly in the present case there was no discrimination on the ground of the applicant’s sex."23

40. This position only changed in 1996 following the decision of the European Court of Justice in P v S and Cornwall County Council²⁴. In that case the Industrial Tribunal held that the applicant was not protected by the Sex Discrimination Act but referred questions to the ECJ for a preliminary ruling on the scope of the Directive "on the implementation of the principle of equal treatment from men and women as regards access to employment, vocational training and promotion, and working conditions". In its judgment the ECJ ruled that: the scope of the directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.

23 E A White v British Sugar Corporation Ltd [1977] IRLR 121 at 123 24 Case C—13/94, [1996] ECR 1—2143

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Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.

To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard. "25

41. Applying this ECJ ruling, the English Employment Appeal Tribunal ("EAT"), on 27 June 1997, ruled that:

"Applying the same reasoning, where, as in this case, the reason for the unfavourable treatment is sex based, that is a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made. In these circumstances we interpret the 1975 [Sex Discrimination Act] consistently with the ruling of the European Court in P v S, and uphold the tribunal’s finding on the first issue."26

In so finding, however, the EAT sought to distinguish Corbett v Corbett solely on the basis that:

"A biological test is necessary in relation to marriage where heterosexual intercourse plays an essential part. That necessity does not arise in relation to the Act."²⁷

42. The developments on employment law, caused by its EC law dimension, demonstrate how easily the discrimination transsexuals face can be legally countered. Unless the Government or this Court act, however, transsexuals will continue to suffer in many other fields in consequence of the current general insistence under English law on

25 ibid. paras. 20 to 22

26 Chessinqton World of Adventu d v Reed [1997] IRLR

556 at para. 34

27 ibid. para. 32

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regarding post operative transsexuals as remaining in their pre-operative genders and enforcing this through the penalty of perjury.

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SECTION 3 THE FACTS - KRISTINA SHEFFIELD

43. Kristina Sheffield was born in 1946 and was registered at birth as being of the male sex. Prior to her gender reassignment surgery, the Applicant was married and had one daughter.

44. In 1986, she began treatment at a gender identity clinic at Charing Cross Hospital in London, a National Health Service hospital, and later successfully underwent gender reassignment surgery and treatment. In 1987 she was informed by her consultant psychiatrist and her surgeon that she would have to obtain a divorce before she would be permitted to have the necessary operations on the deeply ironic ground (in the light of subsequent experience) that it was not possible in law for two women to be married.

45. Following the divorce, her ex-wife applied to court to have Miss Sheffield’s contact with their daughter terminated. This application was granted by the court on the basis that it was not in the child’s interest to have any contact with a transsexual. Miss Sheffield has not seen her daughter since then, ie. for some 12 years.

46. Although she was able to change her name by deed poli and this was recorded on her passport and driving licence, her birth certificate and various records kept on her by the Respondent, such as social security records, police records etc., continue to record her original name and gender.

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47.Despite her changed name being recorded in her passport, whenever there is felt to be a need to make further enquiries about the bearer of that passport, this will, almost inevitably lead to Kristina Sheffield’s former name and gender being disclosed. By way of example, this occurred when the Applicant applied for a visa at the US Embassy in London.

48.On two occasions, on 7 and 16 April 1992, Miss Sheffield voluntarily attended court in order to provide a surety for a friend in the sum of Ł2,000. On both occasions, though she could not understand the relevance of her past name or gender to the issue of whether she would be could provide such surety, she was forced, in open court, to disclose to the court her previous name. This was deeply embarrassing for her. This was not the only time that the Applicant was faced with the threat of having to disclose her past name and gender in open court: In March 1994, she was meant to attend the criminal trial of a friend, Donna Cannon, as an alibi witness. The accused, on the advice of both her solicitor and her Barrister, decided not to call Miss Sheffield:

"As the gender on Kristina’s birth certificate showed that she was a male this could have been revealed to the whole court which was of course a public hearing, this would without doubt sensationalised my trial and damaged Kristina’s reputation. As result I took the decision not to call Kristina and I took the risk that I could end up with a custodial sentence as she was my alibi. 28 Annex 8

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49. In June 1992, Miss Sheffield was arrested on fire-arms charges, which were later dropped, and it was made very clear to her by the police officers investigating her case that they were aware of the fact that she had undergone gender re-assignment surgery. Miss Sheffield sought to enquire how such information could have reached the hands of the police officers but, fully aware of the criminal sanctions attached to making a false statement²⁹, did not pursue her enquiries when she found that the enquiry form under the Data Protection Act 1984 required her to state her sex and other names. This would have disclosed to the police exactly the information she thought they ought not to have about her.

50. On 20 December 1992, Miss Sheffield sought to enter into an insurance contract for her car and again the form required to be completed by the insurance company required her to state her sex. Due to the current state of domestic law (as set out above) she had no choice but to disclose that her original gender was male. Any declaration that her sex was any other than ‘male" would have exposed her to the insurance not being honoured as she had failed to disclose a material fact and had sought to "mislead" the insurance company. In addition, Miss Sheffield faces criminal constraint, under the Perjury Act, to disclose her former sexual identity.

51.Prior to her gender re-assignment, the Applicant had a very successful career as a pilot and first officer both in the

29 under the Perjury Act 1911 - see above

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armed forces (Royal Airforce and Rhodesian Air Force) as well as flying commercial aircraft. However, ever since she decided to undergo gender re-assignment surgery, Miss Sheffield has been subjected to discrimination at work or in relation to obtaining work. In 1986, she was dismissed by her then employers, Britannia Airways, as a direct consequence of her gender re—assignment and the publicity surrounding this dismissal have made it impossible for her to obtain employment in the United Kingdom as a first officer or, even more appropriately, a pilot of a commercial airliner. The situation became so difficult that the Applicant could not afford to maintain her pilots licence which she therefore lost. This almost led to her losing a career she had built throughout her adult life. It was only through the generous support of a friend that in 1995 she managed to borrow sufficient money to regain her licence.

52. Though the Applicant managed to regain her licence it has so far proved impossible, to a large part due to the Respondent’s attitude, to re—establish her career in the United Kingdom: it has been impossible for her to find employment in the United Kingdom in her chosen profession and she has been forced to seek employment in other European countries; wherever she applied for employment as a pilot/first officer, except in the United Kingdom, she had no difficulties in finding employment and, due to her unrivalled experience, has always been a highly regarded member of the flying staff.

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53. However, due to the lack of protection afforded by English law, the Applicant had been unable to pursue discrimination actions in the English courts until the ECJ ruling in P v S and Cornwall. Only after that ECJ ruling (and subsequent to admissibility in the present case) was Miss Sheffield able, as she has now done, to apply to an Industrial Tribunal to rule on the discrimination suffered by her in the process of seeking employment as a first officer and the redress open to her is limited to discrimination in relation to EC related employment rights. Her application to the Industrial Tribunal has been declared admissible and is currently pending. Most aspects of the discrimination she has faced remain unprotected and unresolved under domestic law. Her plight remains grim.

54. The Department of Employment records record her details as follows:

"KRISTINA SHEFFIELD sex MALE"

and state: "Notes: 11/8/93 client is unemployable but available for work. REF. TO ES461 IN UBO". These records, kept on the Department of Employment computer, are in principle available to operators at employment offices throughout the United Kingdom and have led to all staff at her local employment office being fully aware of her transsexuality.

55. Department of Social Security ("DSS") records seen by the Applicant and annexed hereto³⁰, apparently drawn up for transfer from DSS Ealing District office to "UBO1-568"

30 Annex 9

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record her name as "Ian V Sheffield" and only state her current name under "Known as". Another DSS record, apparently drawn up by the Contributions Agency in Newcastle lists her name as "Mr I V Sheffield k/a Miss K Sheffield" and includes a tick in the box marked "Male".

56. In 1993 the Applicant sought legal aid to challenge the refusal of the Registrar General to amend her birth certificate to reflect her status as a woman. Legal aid was, however, refused on the ground that she did not have sufficient prospect of success in such a challenge.

57. In her statement³¹, Kristina expresses the hurt and distress she suffered and continues to suffer as a consequence of the Respondent’s position as follows:

"No one would undergo gender re-assignment with the social and emotional impact it 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. The 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.

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 it another way strike a fair balance. In assessing this, I do ask the Commission 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.’ (emphasis added)

31 Annex 9

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Miss Sheffield has had to endure ridicule and being treated as a "freak" when forced to disclose the divergence between her present gender and external appearance and her legal "sex" under UK law. She has been caused mental stress as is confirmed by the psychiatric report of Dr Russell Reid.

58. The impact upon Miss Sheffield of the current state of the law has been grave indeed. She had no legal protection against her dismissal by Britannia Airways in 1986 because of her transsexualism. At that time, she lost nearly everything including her child, house, its contents and her pilot’s licence and with it her career. She endured a terrible period until she regained her pilot’s licence and even since then. It is only through the fact that she is able to work at all, though not in the UK that she is beginning to re—establish herself and regain self esteem. The Court is asked to take account of all that Miss Sheffield has endured in relation to its consideration of Article 50 in this case.

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SECTION 4 THE FACTS - RACHEL HORSHAM

59. Rachel Horsham was born in the United Kingdom on 15 February 1946 and was recorded at birth as being of the male sex. Her register entry read and continues to read "male" and "Richard Jeremy Lionel".

60. According to her personal statement³², annexed hereto, she was brought up as a boy but from a very early age she felt herself to be different from other children. By the time she had become a teenager years she found it difficult to relate to other girls as a boy, since she felt one of them. These feelings, at the time, where incomprehensible to her.

61. When she was almost 18, the Applicant decided to join the nursing profession. However, as she was unable to find a hospital that would employ and train her, she decided to join the Respondent’s armed forces in the form of the Royal Army Medical Corps.

62. When she was 21 the Applicant for the first time fully understood that she was a transsexual. It was then and for this reason and the "discovery" of her true identity that she felt unable to continue with her service in the Royal Army Medical Corps. As she feared that there could and would be repercussions if the fact that she was a transsexual became known she sought and gained a medical discharge from the Army. After leaving the Army, the

32 Annex 10

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Applicant was forced to make a living by singing in clubs etc.

63. In 1971, following the judgment in Corbett v Corbett, Miss Horsham left the United Kingdom.

64. Following a few years of travel around Europe and the Near and Middle East, she has lived in forced exile in the Netherlands as a woman since 1974. It is important to emphasise, as the Applicant does in her personal statement, the forced nature of her exile. Throughout, it has been the Applicant’s express intention to return to her home country, the United Kingdom. However, despite her own status as a woman under Dutch law, the refusal by the Respondent to amend her UK documentation and the lack of recognition of any marriage entered into by her, make it impossible for her to return to and settle in the United Kingdom.

65. From 1990 onwards she received psychotherapy and hormonal therapy.

66. Between 1991 and 1992 the Applicant wrote to the Queen, various members of the British Government, and the Leader of the Opposition raising the plight of transsexuals and requesting that there be a change in the law to allow transsexuals to have their new gender noted on their birth certificates. In that correspondence she made express reference to Recommendation 1117(1989) of the Parliamentary Assembly of the Council of Europe which expressly provides:

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"4. Believing that account of the changes brought about should be taken in the transsexual’s civil status records by adding such details to the original record so as to update the data concerning sex in the birth certificate and identity papers, and by authorising a subsequent change of forename;

5. Considering that a refusal of such amendment of the civil status papers exposes persons in this situation to the risk of being obliged to reveal to numerous people the reasons for the discrepancy between their physical appearance and legal status;

Considering, furthermore, that the legislation of many member states is seriously deficient in this area and does not permit transsexuals, particularly those who have undergone an operation, to have civil status amendments made to take account of their appearance, external morphology, psychology and social behaviour."

She further referred the addressees to the resolution of the European Parliament on discrimination against transsexuals of 9 October l989.33

67. In October 1991, Miss Horsham applied to the British Consulate in Amsterdam for the issue of a new passport reflecting her status as a woman. However, she was informed that the Consulate, unlike the authorities in Britain, would not accept a change of name by deed poli and could therefore not issue her with such a document; they could only issue her with such a passport if she obtained a Dutch court order stating her new name and the fact that she was a transsexual. Under Dutch law such an order was, however, only available after gender re-assignment surgery had taken place. The Consulate, however, also made it clear that the change of birth certificate that would flow from such a court order under Dutch law would not be recognised by the Consulate.

33. OJ 1989 C 256/33

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68. In February 1992, the Home Office replied to the various letters sent by the Applicant to the Queen and government ministers. In that letter the Home Office asserted that it was not possible to amend birth certificates, because:

"The certificate is a legal record of that particular registration and cannot be subsequently changed to suggest that the facts are other than they were. This is the position where someone changes their name or becomes adopted ..."

69. On 21 May 1992 Miss Horsham underwent gender re-assignment surgery at the Free University Hospital in Amsterdam.

70. On 26 June 1992, she again approached the British Consulate in order to seek a change of photograph and forenames in her passport. She was again told that this could only be done following an order by the Dutch courts.

71. On 24 August 1992, Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the register of births in The Hague recording her new name and the fact that her sex was female.

72. On 11 September 1992, having produced the order of the Amsterdam court, the Applicant was issued with a new passport by the British Consulate in Amsterdam. Although this recorded her new forename, the Applicant was reminded that this did not change the fact that as a matter of English law she remained male.

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73. On 12 November 1992, Miss Horshani was issued with a new Dutch birth certificate recording her new forename and, most importantly, her new sex. The letter accompanying this certificate expressly stated that following the issue of this certificate, the Applicant was entitled, as a matter of Dutch law, to enter into a contract of marriage with a man.

74. On 15 November 1992, Miss Horsham applied to the Respondent’s Office of Population Censuses and Surveys ("OPCS") to have her original, British, birth certificates amended in line with the amendments that had taken place in relation to her Dutch birth certificate. Enclosed with this application was:

A. a psychiatric report;

B. a medical and surgical report;

C. the order of the Amsterdam court;

D. a copy of her amended Dutch birth certificate; and E. a copy of her original British birth certificate.

75. By a letter dated 20 November 1992, the OPCS replied that under the 1953 Act it was impossible to enter any new details onto the register.

75. In September 1993, Miss Horsham naturalised as a Dutch citizen.

77. From the time prior to her operation, the Applicant has lived in a committed and loving relationship with her partner. Initially she felt unable to tell him about her

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gender dysphoria, but when she told him, having had her surgery, he re—affirmed his commitment to her and they decided that they would get married and move to the United Kingdom. In order to facilitate these plans, the Applicant, on 21 October 1993, wrote to the OPCS enquiring about the recognition in England of her intended marriage in the Netherlands. In their reply dated 4 November 1993, the OPCS made it clear that as a matter of English law, if she were held to be domiciled in England, she would be precluded from contracting a valid marriage whether that marriage "took place in the Netherlands or elsewhere".

78. As a direct result of the position of the Respondent in relation to the amendment of birth certificates concerning those who have undergone gender re-assignment surgery and their refusal to recognise her intended marriage, Miss Horsham remains in the undesirable and totally unacceptable situation that if she wants to lead a normal life with her future husband she has no choice but to remain in forced exile in the Netherlands.

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79. Annex 5 contains a concise summary of the medical position concerning transsexualism from Professor Gooren, who gave evidence orally at the hearing before the Commission on 19 January 1996. He is also available to give evidence before the Court pursuant to Rules of Court "A" Rule 42, should the Court so decide. Professor L J G Gooren is 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 is one of the most recognised authority on transsexualism. He has treated more than 1,500 transsexuals during his career. He was 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 and held in Amsterdam in April 1993. Based on his research, Professor Gooren states:

"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 1,000 newly-born there is a contradiction between the different criteria of sex. It is an accepted medical

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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 three and four. 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. "(emphasis added)

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SECTION 6 LEGAL DEVELOPMENTS

80. Annex 4 to this Memorial sets out some further information on legal developments, which shows how. standards have evolved. The Court is invited to find that, against the standards of today, what the Applicants faced with in their day-to-day lives is a disproportionate affront to their dignity, which should be found to violate the Convention.

81. The Registry of the Court has informed the Applicants that permission has been granted for Liberty, the National Council for Civil Liberties, to submit amicus curiae submissions on the approach adopted to the issues before this Court in the present case in the other Member States of the Council of Europe. The Applicants understand that comparative standards have evolved and that the position taken by the Respondent is out of line from what occurs in virtually all other European States where medicial treatment for transsexualism occurs. In order to avoid duplication, however, the Applicants do not provide their own extensive comparative law analysis. The Applicants, however, request the opportunity of commenting further once they have had the opportunity of studying the amicus curiae submissions made to the Court by Liberty. Accordingly, the remainder of this Section is confined to developments in the ECJ and in the United States Supreme Court.

82. A finding of violation by the Court would, the Applicants submit, mirror the approach taken by the ECJ and by other contemporary distinguished constitutional courts. The

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Commission’s Report referred to the case of P v S and Cornwall to which reference has already been made at paragraph 40 above. Since then, the ECJ has been seized of two references for preliminary rulings on whether EC Treaty Article 119. 34 and the Equal Treatment Directive³⁵ protect against discrimination on grounds of sexual orientation. Advocate General Elmer’s powerful Opinion in the first of these cases was delivered on 30 September 1997 and is relied upon herein as further evidence of the approach that is right and appropriate on the protection of the dignity of everyone in Europe today and the unacceptability against the standards of today of what the Applicants still endure.

83. In Case C-249/96 Grant v South-West Trains, Advocate General Elmer expressed the view that:

"There is nothing in either the EU Treaty or the EC Treaty to indicate that the rights and duties which result from the EC Treaty, including the right not to be discriminated against on the basis of gender, should not apply to homosexuals, to the handicapped, to persons of a particular ethnic origin or to persons holding particular religious views. Equality before the law is a fundamental principle in every coimnunity governed by the rule of law and accordingly in the Community as well. The rights and duties which result from Community law apply to all without discrimination and therefore also to the approximately 35 million citizens of the COmmunity, depending on the method of calculation used, who are homosexual".36

84. Recently, on 20 May 1997, the US Supreme Court in the case of Romer v Evans ruled unconstitutional the Colorado law nullifying civil rights protection for homosexuals.

34 This requires equal pay.

35 Council Directive 76/207.

36 Emphasis added.

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Justice Anthony Kennedy expressly made the link with the Supreme Court case law against racial discrimination, recalling the dissenting words of Justice Harlan a century ago in Plessey v Fergusson, that the US Constitution "neither knows nor tolerates classes among its citizens". Upholding the right to equal treatment, Justice Kennedy spoke of the commitment to the law’s neutrality where the rights of persons are at stake.

35. The Applicants do not enjoy the equality before the law which Advocate General Elmer and the US Supreme Court so rightly states is fundamental to the proper rule of law.

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86. From the outset of these cases, the Applicants have submitted that they are the victims of breaches of Article 14 read with Article 8 should no violation be found on Article 8 read alone. This Section outlines that additional submission, on which the Court is requested to rule in the event that no violation is found on Article 8 read alone.

87. In Rees and B v France, no submissions are recorded as having been made on Article 14. In Cossey, the Court rejected reliance upon Article 14 because as paragraph 41 of the judgment records:

"She appears to have relied on it not so much in order to challenge a difference of treatment between persons placed in analogous situations but rather as a means of introducing into her submissions the notion of proportionality between a measure or restriction and the aim which it seeks to achieve".³⁷

88. The present Article 14 submission is completely different to that put to the Court on behalf of Miss Cossey.

89. The Applicants challenge the difference of treatment between them and other members of the public in that they and other transsexuals alone are compelled to describe themselves frequently and publicly by a gender which does not accord with their external appearance. Men and women who are not transsexuals are never required to be identified by a gender different to their external

Paragraph 41 of the Cossey judgment.

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appearance; they do not face the intrusion and embarrassment the Applicants face. This is a case of discrimination.

90. It is submitted that this distinguished Court should reject the analysis that the true comparator of a male/female transsexual is a female/male transsexual and should also reject the consequent conclusion that, since both types of transsexual will suffer equally under the current law, there is equal misery amongst comparable persons and thus no issue under Article 14. The Applicants propose to call this analysis hereafter the "equal misery submission".

91. The United Kingdom advanced an equal misery submission to the ECJ in P v S and Cornwall. The ECJ records the United Kingdom as having submitted that there was no discrimination on grounds of sex because "in particular. . .the employer would also have dismissed P if P had previously been a woman and had undergone an operation to become a man"³⁸.

92. The Applicants urge this Court to follow Advocate General Tesauro and the ECJ in rejecting such analysis, which, if endorsed would seriously undermine the protection against gender based discrimination the importance of which this Court has so often and trenchantly proclaimed³⁹.

38 Paragraph 15 of the ECJ’s ruling. 39 First in Abdulaziz, Cabales and Balkindali v United Kingdom, judgment of 28 May 1985, Series A No 94, 7 EHRR 471, para 78 and thereafter frequently reaffirmed, for example, in Schmidt v Germany, judgment of 18 July 1994, Series A No 291-B, 18 EHRR

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93. Advocate General Tesauro dealt with the United Kingdom’s equal misery submission as follows:

"I am not convinced by that view. It is quite true that even if P had been in the opposite situation, that is to say changing from female to male, it is possible that she would have been dismissed anyway. One fact, however, is not just possible but certain:

p would not have been dismissed if she had remained a man

Likewise, here, one thing is also certain. Kristina Sheffield and Rachel Horsham would not be required to undergo the embarrassment of having regularly to identify themselves as of a gender different to their external appearance if they had remained men.

94. Advocate General Tesauro continued:

"So how can it be claimed that discrimination on grounds of sex was not involved? How can it be denied that the cause of the discrimination was precisely and solely, sex? To my mind, where unfavourable treatment of a transsexual is related to (or rather is caused by) a change of sex, if that is preferred".

He concluded consideration of the equal misery submission by observing that:

"to maintain that the unfavourable treatment suffered by P was not on grounds of sex because it was due to her change of sex or else because in such a case it is not possible to speak of discrimination between the two sexes would be a quibbling formalistic interpretation and a betrayal of the true essence of that fundamental and inalienable value which is equality"⁴¹.

513.

40 Paragraph 18 of his Opinion, {1996] ECR 1-2143 at

2154.

41 Paragraph 20 of his Opinion at P 1-2155.

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95. The ECJ endorsed Advocate General Tesauro’s trenchant rejection of the equal misery submission in the passage quoted earlier at paragraph 40 of this Memorial.

96. The Applicants urge this Court to do the same if, for any reason, it declines to analyse the case, as the Commission has done, as a violation of Article 8 taken alone.

97. Recent years have seen increased recognition of the importance of construing the concept of sex based discrimination broadly and particularly of the need for vigilance against any stereo-typing. As a distinguished and well known Barrister put it, "sexual stereotypes" are "very much in the foreground as the activating cause of the less favourable treatment ,,42.

98. Transsexuals in Britain today are the victims of the sexual stereo-typing that gender remains irrevocably fixed at birth and cannot change thereafter. A more basic instance of stereo-typing would be hard to imagine.

99. Guarding against stereo-typing and rejecting any equal misery analysis will apply, in the context of sex discrimination, what for years has been accepted in the context of racial discrimination. In 1967, for example, the US Supreme Court considered the submission by the State of Virginia that a mixed race marriages ban did not involve

42 David Pannick (now Q.C.) "Sex Discrimination" (Oxford, Clarendon Press, 1985) at p. 203.

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discrimination because it affected blacks and whites alike. The Supreme Court trenchantly rejected the submission and "the notion that the mere equal application of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discrimination. "43

It is submitted that the same approach must be taken in relation to sex discrimination.

100. The parallel between discrimination against sexual minorities and race discrimination was further stressed, as noted at paragraph 76 above, when the US Supreme Court in the case of Romer v Evans ruled unconstitutional the Colorado law nullifying civil rights protection for homosexuals.

101. Accordingly, the Applicants submit that there is a compelling case under Article 14 read with Article 8 based on discrimination against them compared with women who have not undergone gender re—assignment. In support of the lack of fair balance and proportionality, the Applicants rely, mutatis mutandis, upon the contents of the Commission’s Report and this Memorial in its entirety.

102. The Court has repeatedly stressed that the advancement of the equality of the sexes is a major goal in the Member States of the Council of Europe and that very weighty reasons would have to be put forward before a difference in treatment on grounds of sex could be regarded as compatible with fundamental rights.

43.Loving v Virginia 87 S.Ct. 1817 (1967).

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103. Transsexuals, it is submitted, are equally entitled to protection against discrimination on grounds of sex and the Court is asked so to find and declare, based on the analysis of sex discrimination which has commended itself to the ECJ, the US Supreme Court and accords with the tolerance due to members of sexual minorities in Europe today.

104. In addition to the above points, the Applicants submit that the recent medical evidence, summarised at Section 5 above and which was not available when the Court previously considered this issue, supports the need to treat transsexuals as being in an analogous position for the purposes of Article 14 to persons of the sex to which their brains belong.

105. In any event, the Applicants respectfully agree with the observation of the majority of the Commission in their Report Sutherland v United Kingdom that whether or not a difference of treatment is regarded as based on "sex" or "other status" in Article 14, the margin of appreciation must be relatively narrow when the law complained of impinges on intimate aspects of affected individuals’ private lives⁴⁴. The Commission’s observation surely applies in the present case. Transsexuals are entitled to equal protection under the Convention.

44.Paragraph 57 of the Commission’s Report of 1 July 1997.

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106. The severe impact upon the Applicants and other transsexuals has been outlined above and is summarised in the Commission’s Report. The discrimination which the Applicants face calls for close scrutiny.

107. Further, as Professor Harris, Mr O’Boyle and Professor Warbrick observe in their book:

"if the position taken by the Commission in the Van Oosterwijck case and followed by the minority in the Rees and Cossey cases were to be adopted, the calculation of what may be required by the state to respect private life would change. These opinions emphasise the centrality of the legal recognition of the physical changes of the operations to the transsexuals’ perception of themselves. To such a deeply felt matter, the administrative inconveniences to the state should yield. The essence of private life is the expression of one’s personality".⁴

The learned authors go on to contrast the majority

Rees/Cossey approach with that taken by the Court in

Gaskin.

108. The above points have not previously been considered by this Court. Collectively, it is submitted, they constitute cogent reasons in 1998 for the Court to depart from the conclusion it reached in 1986 in Rees and again narrowly affirmed in 1990 in Cossey. Accordingly, the Court is requested to find a violation of Article 8 alone or Article 8 read with Article 14 "in order to ensure that the interpretation of the Convention reflects societal change and remains in line with present day conditions"⁴⁶.

45."Law of the European Convention on Human Rights" (Butterworths, 1995) at p. 325.

46 Cossey paragraph 35.

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SECTION 8 ARTICLE 50

109. If the Court finds that the Applicants’ claims under Article 8 and/or Article 14 to be well-founded, the Applicants respectfully request the Court to order as follows by way of just satisfaction.

110. The primary relief sought by the Applicants is a declaration that their rights under the Convention have not been properly respected. For reasons explained in this Memorial and in particular in the personal statements of the Applicants annexed hereto, such a declaration is of great importance to them.

111. The Court is also requested to award general damages in respect of the Applicants’ humiliation, distress and suffering which the Applicants have had to endure.

112. The Court is further requested to order the Respondent

Government to reimburse their reasonable legal costs

(including VAT) and expenses of the proceedings under the

Convention, less sums provided under the Council of Europe

Legal Aid Scheme. A draft Bill of Costs and Expenses is

annexed hereto⁴⁷. 47.Annex 12

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113. In the light of the matters set out above, the Applicants respectfully request the Court to decide and to declare:—

(a) that the facts disclose a breach of the Applicants’ rights under Article 8 and/or Article 8 taken in conjunction with Article 14; and

(b) that the Applicants should be awarded their reasonable legal costs and expenses (plus VAT, less allowance for Council of Europe legal aid contributions received), and such other sum by way of just satisfaction as the Court decides is appropriate.

Settled by:

Henri Brandman Peter Duffy O.C.

Solicitor and Applicants’ Agent Queen’s Counsel

Henri Brandman & Co Essex Court Chambers

43 Queen Anne Street 24 Lincoln’s Inn Fields

London W1M 9FA London WC2A 3ED

Andrew McFarlane Tim Eicke

Barrister-at-Law Barrister—at-Law

1 King’s Bench Walk Francis Taylor Building

The Temple The Temple

London EC4Y 7DB London EC4Y 7BY

Solicitor

Henri Brandman & Co

43 Queen Anne Street

London W1M 9FA

Dated this 23rd day of October 1997

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