Application No 23390/94

In response to the letter dated 10 January 1995 from the United Kingdom I Rachel Horsham hereby present the following observations, in relation to those received, by you, from the United Kingdom.

In these observations I shall proceed through the four parts as set out by the United Kingdom.

PART 1 RELEVANT FACTS

In paragraph 1.1 The Deputy Advisor and Agent for the British Government states, "Without prejudice to any of the legal issues in these proceedings, the United Kingdom will refer to the applicant as She".

My legal status as such is that of a woman and declared legally so by a competent court of law, with medical backing and can be no other than that. Any attempt by the Authorities of the United Kingdom to declare me as anything other, is prejudice to my legal standing and rights.

PART II. RELEVANT DOMESTIC LAW AND PRACTICE

2. In paraqraph 2.1 The statement noting Cossey v United Kingdom (Judgement the Court, 27 September I990, Series No.I84, para. 16 of the Judgement) is of no avail or relevance to my case, in that. The English system of Dead Poll, concerning change of forename is not legally recognised outside of the United Kingdom. Change of name by Deed Poll in the United Kingdom is purely an action between a solicitor and client with no Court action needed, therefore unrecognised within the law.

As I have stated previously. In the documents signed on the 3/12/93, that were sent to you on the same day, I repeat to you what is contained on page 19 under the heading legal status. "I visited the British Consulate in Amsterdam to enquire over a new passport to reflect my status as a woman. During an interview with the Consul, I was informed that it was not possible to be issued with a new passport reflecting my currant status, at the time. Nor would they accept a letter of Deed Poll from a Solicitor for a change of forenames. Their reasoning. That the issuing of passports to transsexuals in the United Kingdom, showing their female status, on production of a letter of Deed Poll from a Solicitor, and a letter of acknowledgement from a qualified doctor, that the bearer was a transsexual, was not legal outside of the United Kingdom."

In my case my change of forename eventually had to be done through civil law proceedings. Which included a legal change to my sex status, originally recorded as male now recorded as female, with medical advice and knowledge of my situation given to the court, under Art 29a to d of the Burgerlijk Wetboek of the Netherlands.

2 3. In para 2.2 Their statement that my change of name was recorded on my passport, issued by the United Kingdom Consulate in Amsterdam, is a fact. But they fail to state, that it could not be done through a letter of Deed Poll, as Deed Poll is not recognised outside of the United Kingdom. That it was issued after production of the Court proceedings here. The Consul noting that the court proceedings, also in their verdict, demanded the enrolment of my birth certificate into the registers here in the Netherlands, and the changing of my sex status from male to female.

4. In para 2.3. Concerning marriage. Again the Cossey case is of no avail in regards to my case. The information that the British Government had given the Court, in the Cossey case, was misleading, with the exception, that in English law, marriage is defined as the voluntary union between one man and one woman. What was misleading was their definition of how a person's sex is determined by, chromosomal, gonadal and genital, being congruent, without any regards to surgical intervention. It has been known now for some time that a persons sex cannot be defined solely on such criteria, and this has been established already by medical research. Their use of Corbett is also of no avail in my case, and should never have been used in the Cossey or the previous case of Rees.

As I have already stated in the document that were sent to you on the 3rd December 1993, the Corbett case cannot be held valid.In that, Judge Ormrod went beyond his powers by going into the Alternative and by doing so broke the Rules of the Supreme Court, RSC, and thereby creating a situation of Ultra Verus and creating a situation of Orbita Dicta which made his final judgement invalid. If he had kept to the petition alone, and demanded to see the birth certificates of the petitioner Arthur Corbett and the respondent, April Ashley. He would have seen immediately that Arthur Corbett was male, and that April Ashley was in reality still George Jamieson male, with no amendment on the birth certificate to show any other. From that point Judge Ormrod could only make one decision, that the marriage was null and void. But instead he went into the alternative, of which he had no right to do. In doing so the realities of the case became very clear, it was deliberate. At one point he stated, p. 47 line G of the Corbett case, "It appears to be the first occasion on which a court has been called on to decide the sex of an individual and consequently there is no authority, which is directly to point". He had not been called upon to do this, he had only been called upon to grant a decree of nullity on the ground that April Ashley was of the male sex at the time of the ceremony. Which was true and his decision should have been made on the evidence of the birth certificates.

Neither did Ormrod have the medical knowledge to make a legal decree that a person's sex was to be determined solely by chromosomal, gonadal, and genital, and that a persons sex was fixed at birth, without regard to surgical intervention.

Throughout the case he relied solely on medical evidence of two people, namely, Dr Randell and Prof Dewhurst, who were of the opinion that for them April Ashley was a homosexual, and disregarded the evidence of another seven medical

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Witnesses, who were of the opposite opinion, in that April Ashley was a transsexual or a person of Inter-sex, and should be legally regarded as a woman.

Also in the documents that were sent to you on the 3rd December 1993, was a copy of the research reports from Prof L.J.G. Gooren, of the Gender Centre at the Free University Hospital of Amsterdam, the Netherlands. This centre is the only one of its kind in Europe, and it is also the leading research centre that has researched into the determining of a persons sex, to a greater extent than anywhere else.

On page two, under, SUMMARY, it reads:

Transsexualism remains an enigmatic problem to biologists. It defies the "naturalness" of being a man or a woman. In the past century it has become clear that the differentiation process of becoming a man or a woman is a multi-step process. At each step there is a bipotentiality to develop in either male or female direction. Further, each step has a window of time, a critical phase for its development. For times immemorial it has been assumed that the sexual differentiation process is completed with the formation of the external genitalia, which constitutes the criterion for sex assignment immediately after birth. Over the last decades it has become apparent that the formation of the external genitalia is not the final step in the process of sexual differentiation but also the brain undergoes a sexual differentiation, which in the human occurs after birth. Though the information is not definitive there is now evidence to believe that in transsexuals the sexual differentiation process of the brain has not followed the course anticipated of the preceding criteria of sex (chromosomal, gonadal and genital) and has become cross-sex differentiated. Sex assignment at birth by the criterion of the external genitalia is a statistically reliable prognosticator of future brain sexual differentiation. For the exceptions in whom brain sexual differentiation has not followed the path prognosticated by the nature of the external genitalia, i.e. transsexuals, the law must make provision.

Again on page 16, 17 and 18, under, SUMMARY OF BIOLOGICAL SEX DIFFERENTION AND ITS RELEVANCE TO TRANSSEXUALISM, MEDICINE AND LAW

It has become clear that the differentiation process of becoming a man or a woman is a multi-step process with for each step a window of time critical phase. Once this phase has passed there is no backtracking. With the fusion of an ovum and sperm, the chromosomal pattern becomes established: usually 46 XY or 46 XX, but other configurations do occur. The most well known are 47XXY (Klinefelter syndrome) and 45, X (Turner syndrome). The differentiation of the gonads takes place in the human foetus between 5-7 weeks of pregnancy. The indifferent, biopotential gonad becomes a testis provided the correct genetic programming is present on the short arm of the Y chromosome. Sometimes this information has been translocated to the X chromosome resulting in a 46 XX man with a reported frequency of about 1: 20,000. A XY chromosomal pattern may result in a development of a female with streak gonads if the "testis determining area' is lacking on the Y chromosome.

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When the gonads have become either testis or ovaries (or in rare cases ovotestis), the next stepof the differentiation process is the formation of the internal genitalia. The foetal testis become endocrinologically active and secretes testosterone and Mullerian inhibiting factor leading to involution of the ducts of Wolff. The ovaries are endocrinologically quiescent. The ducts of Wolff regress in the absence of testosterone while in the absence of Mullerian inhibiting factor the ducts of Muller differentiate into female internal genitalia. The following step is the formation of external genitalia, obeying to the same paradigm: male external genitalia in the presence of testosterone (provided it is metabolised to 5 alpha-dihydrotestosterone) and other androgenic hormones. There are two classical syndromes of which the errors in sexual differentiation occur in this phase: the androgen insensitivity (AIS) and the congenital virilising adrenal hyperplasia (CVAH). The essence of the AIS is that all body cells lack androgen receptors. It has only been found to occur in 46 XY subjects with testes are born and raised as girls. A similar clinical presentation, have those 46 XY testis bearing subjects who have an enzymatic block in the production of testosterone. In the CVAH there is an abnormal amount of androgen production of the adrenal (On the basis of an enzyme defect in the cortisol synthesis). The much higher than normal androgen production leads in an affected 46 XX foetus with ovaries to a male type of differentiation of the Wolffian ducts and the external genitalia; in other words these 46 XX ovary baring subjects are born with a penis and a scrotum and raised as boys. The above two clinical syndromes can be complete or incomplete. Apart from the two above classical syndromes there are more errors in the sexual differentiation process of the internal and external genitalia, leading to male genitalia in foetuses with a 46 XX chromosomal pattern and ovaries and to female external genitalia in foetuses with a 46 XY pattern and testes. More often ambiguity of the external genitalia is the result of a faulty sexual differentiation process of the external genitalia. The formation of the genitalia is concluded by the 16-17th week of gestation. Since times immemorial mankind has assigned its offspring to the male or female sex by the criterion of the appearance of the external genitalia without encountering great problems. This practice infers, on the basis of a single glance, that all criteria of sexual differentiation (chromosomal pattern, nature of gonads and of internal genitalia) in their entirety are either masculine or feminine. This inference appears to be justified in the vast majority of newborns but there is no certainty that the other criteria of the sex are congruent with the appearance of the external genitalia. Abiding by the principle of assigning newborn to the male or female sex by the criterion of the appearance of the external genitalia, this practice will inevitably produce that some subjects will be legally registered as male while their other criteria of sex (chromosomal pattern, gonads, internal genitalia) are discordant with those of the average male and vice versa will be the case with persons registered as females.

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Even more complex are those cases of newborns with ambiguous genitalia. The homespun wisdom of the medically unsophisticated confronted with such newborn, guided them to assign the baby to the sex to which it most resembled in genital appearance. After the advent of medical technology to determine the nature of the chromosomal pattern and the gonads and internal genitalia, this practice was reconsidered. Starting with Klebs in 1876 it was assumed that microscopic examination of the gonad (testis or ovary or ovotestis) would provide a secure criterion as to the true sex of the newborn. The introduction of techniques of chromosome determination tempted scientists to adopt a chromosomal criterion instead. It is evident that these approaches were teleological in nature, in other words they tried to read from the chromosomal pattern and the gonadal tissue what nature's original 'intentions' had been with the subject involved. These medical procedures turned out to be disastrous for the subjec. As can be understood from the information on sexual given above, such procedures leads for instance to assignment to the male sex with 46 XY chromosome pattern and/or testes while this subject has external female genitalia which cannot satisfactorily be surgically reconstructed to male genitalia. It is not difficult to imagine what misery this approach must produce for the subject involved with regard to his functioning as a male in all its aspects.

It has been the pioneering work of Money and Wilkins mentioned earlier, in children with ambiguous genitalia that has led to a new style of clinical decision making on sex assignment in the newborn. The decision on sex assignment is in modern medicine primarily guided by the nature of the external genitalia and/or how well they lend themselves to surgical reconstruction in conformity with the sex the newborn is to be assigned to. Preponderant in the decision is the clinically well founded expectation of the sex role in which the newborn will genitally function best in childhood and adult life, privately as well as socially and sexually. Future fertility must be considered but is not predominant, since it may be totally at odds with the genital status (for instance in a subject that has a vulva and a vagina and fertile testes).

It is clear that the above clinical practice gives high priority to the expected future genital functioning of the newborn with a substantial disregard of the chromosomal pattern and of the gonod. Most lega1 systems accept that in the case of newborns with ambiguous genitalia, sex assignment is executed on the basis of expertise. It is evident from the above that medicine is unable to determine sex by a single criterion, like chromosomal gonada1 and genital characteristics. All variables of sex are usually concordant with another but they are capable of being discordant. For the healthy psychomedical development of a child, if not it as doomed to become a queer person, it is,

an exigency that it is assigned to either the male or the female sex. This assignment, is usually made by parents, or caretakers on the basis of the appearance of the external genitalia.

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The civil registration as female will be in agreement with the assignment of the parents/caretakers in cases of ambiguous genitalia or with the medical expert advice in cases of genital ambiguity. Consequently, civil registration is subject to the same uncertain arbitrary determination of sex as the medical profession is. Most legal systems have, in times that it was known that sexual differentiation is a stepwise process with several variables, prescribed that civil registration is to be enacted by the criterion of the appearance of the external genitalia.

Though it is no doubt, an expedient practice doing justice to the vast majority of citizens, it must be recognised that it hinges on only one of the variables, one of the criteria of ones sex. From the above arguments it is clear that no single criterion can, psychomedically speaking, satisfactorily define sex and therewith the most widely prevailing legal criterion of sex, that of the external genitalia is scientifically no longer uneqiuvocal.

Another aspect of civil registration as male or female is that it is legally bound to take place within a number of days after birth. The demonstrable sex difference in the brain become only manifest by the age of 3-4 years postnatally. In contrast to lower mammals the process of brain differentiation has no direct relationship with sex hormone action, theoretically leaving room for other agents to direct this differentiation process. Upon examination of a very limited number (three subjects) of male-to-female transsexuals post mortem_, their brains showed morphological differences in comparison with non- transsexual controls. Apart from these morphological findings, also testing brain function of transsexuals provided evidence of a cross-sex differentiation of their brains.

The implication of the above scientific insight that the sexual differentiation of the brain occurs after birth is that assignment of a child to the male sex by criterion of the external genitalia is an act of faith. In the reality at every day it is an expedient practice exercised by mankind since time immemorial. Only as few as 1:10, 000 males and 1:30, 000 females (Bakker, van Kesteren, Gooren & Bezemer, 1993) (Tsoi, 1988) will later experience a contradiction between his/her gender identity/role and the actual genital morphology and othe criteria of sex. Consequently like the other variables in sexual differentiation (chromosomal pattern, gonads) the external genitalia are excellent, statistically reliable prognosticators of one's future gender identity/role. By contrast, on the basis of this recent neuroanatomical evidence at is reasonable to require from the law that it makes provisions for those rare individuals in whom the formation of gender identity has not followed the course otherwise so reliably prognosticated by the external genitalia. Denial of this right is a negation of an important piece of scientific information on the process of sexual differentiation of the brain taking place after birth. If a strict and intransigent adherence to the criterion of the appearance of the external genitalia as directive for sex reassignment is observed, it must be

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realised that prenatal determinants of sexual differentiation (chromosomal pattern, gonadal characteristics, hormone production) may be at variance with the nature of the external genitalia for sex reassignment is less solid, less unequivocal as it would seem to most legal experts. The validity of this criterion has been superseded by the scientific information that sexual differentiation is not a one point deterministic process, but a succession of steps concordant or discordant with each other. The existing law practice does justice to those newborn in whom all steps are concordant. The less fortunate citizens in whom all these steps have been discordant deserve no less.

In addition to the above information I now present the latest medical scientific findings that were not available to be presented to the 23rd Colloquy held in Amsterdam in 1993. The following information, as well as the above is attested as true and accurate by Prof. L G J Gooren. It clearly shows that a transsexual is born and it is biological and NOT psychological as stated by the British Government.

ZHOU ET AL BST

The central subdivision of the bed nucleus of the stria terminalis (BSTc), which is, involved in various, aspects of sexual behaviour appeared to be 37% larger in reference men (N= II) than in reference women (N= 8). The BSTc volume in 5 male-to-female transsexuals was only 54% of the size in men and was not different from the volume found in women. The size of the BSTc did not differ between presumably heterosexual men and homosexual men. This is the first demonstration of a female-sized brain area in male-to-female transsexuals. Since sex hormones in adulthood do not seem to influence the size of the BSTc, the size of this nucleus is probably a genuine brain marker of male-to-female transsexualism.

The authors of this information are. J N Zou, M A Hofmann, L G J Gooren and D F Swaab. From the Netherlands Institute for Brain Research. It clearly shows the point that brain differentiation is discordant (while female) with other criteria of sex in male-to-female transsexuals.

5. Again, In para 2.3 The use of R v Tan (1983) QB 1053 1063H-1064E is of no avail in my case, or was it of any avail in the Cossey and Rees cases. R v Tan was primarily a case concerning prostitution, and that Tan had been surgically operated on previously, the birth certificate showing Tan to have been registered at birth as of the male sex. The use of Corbett in that case using case law to determine if the defendant Tan was to be seen legally as a woman or a man. There had been no amendments made in the birth registers to state that Tan was legally a woman. Therefore using Ormrod's judgement it was decided that Tan was legally a man. In my case I have a legally amended birth certificate, that was ordered by a court at law, within the Law, showing me now as a woman and not a man. Laws that are passed through an Act at Parliament, to be registered in the Law books, are in the ascendancy concerning a person's rights or misdeeds. Whereas case law may be used if no law of the land can be found. In my case the law of the land, being the Netherlands, is in the ascendancy, as opposed to case law.

But there again, in the Tan case, there was an existing Act within the 1953 Births and Deaths Act that did allow Tan to have the birth certificate changed. The fact that Ormrod's judgement in the Corbett case can now be seen as invalid in that he broke the rules of the Supreme Court, creating a situation of Orbita Dicta, also invalidates, to an extent, the judgement in the case of R v Tan.

6. Again, in para. 2.3. The statement that a person who was born male and has undergone reassignment surgery cannot marry a male, clearly shows the British Government having complete contempt for what are known scientific facts. In that a person's genitalia, as seen at birth, cannot be held, as the one reliable factor as to determine for a person's life what their real sex is. This is what Judge Ormrod decided in the Corbett case, and Judge Ormrod did not have the right to make such a decision, as he was not qualified to do so. Nor was he called upon to do so.

As a woman I have the right to marry any man I choose to, and who wishes to marry me. My new birth certificate gives me that right. It is only the United Kingdom who is intransigent in this affair.

7. Again in para 2.3 concerning marriages outside of the United Kingdom, that they accept their validity, providing it satisfies the laws of the country that they took place in.

If they accept such a marriage taking place between a person who in their eyes was registered at birth as a male and later is seen as being female, but with no amendment having been made in the birth register to support this. It must follow that the Law in the United Kingdom must accept that person as being legally a woman. In reality they do not. She would not be recognised legally and socially for purposes where Pensions are concerned neither would she be recognised as a woman, if she found herself to be the victim of rape. She would not be legally recognised as a woman if she were to die suddenly. Her death would be registered as a man. Here we see that not even the dead, are allowed to rest in peace.

I present here an example of this situation. On the 21st of September I sent the first documents of my case to the Commission. In those documents I made a demand for a review of the Cossey case judgement, considering that the Commission did judge in her favour that she had the right to marry a man. The government of the United Kingdom appealed against that decision to the High Court on the grounds, that in their view her case was no different to the Rees case. The High Court upheld the appeal on those grounds in favour of the British Government.

In the following documents I sent to the Commission, dated 3rd of the 12th 1993,was enclosed an Authorization to represent Miss Cossey in my case, which was signed by her.

In August of 1992 Miss Cossey was married to a Mr Finch, a Canadian and British citizen in Montreal.

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Before the marriage could take place she had to produce her birth certificate, after which special permission was granted, in view of the fact that she was refused a legal amendment to her birth certificate in the United Kingdom. After this permission was granted and the marriage took place. She is now legally Mrs Finch and living with her husband in Atlanta Georgia, United States of America. She has an official Green Card to live and work in the U S A. Her husband is at present working to obtain his green card. When her husband attains that green card, his wife automatically is placed in that registration. This involves documentation procedures that are involved with the F B I. When this occurs she will have to produce her birth certificate, which will show her as a male, which will cause official problems even though their marriage is legally recognised. They can both return to the United Kingdom, but at a certain level their marriage would not be recognised by certain departments in the United Kingdom, because of the unamended birth certificate. This is interference in their private life, created by the intransigence of the United Kingdom Government.

The same situation would happen with me, as the United Kingdom Government refuse to recognise my new legally amended birth certificate. Which is a step further than Mrs Finch who has no amended birth certificate.

I would point out, that as the United Kingdom Government still recognise the Corbett Judgement, any divorce that might take place in this situation would leave me without any legal rights. The court would say, that according to English law I was born a man and as there is no amendment contained in the Registers in the United Kingdom to show any other than that, an immediate decree of nullity would be granted to the petitioner on the ground. That in the judge's view I was and still am legally a man.

8. I n para 2.4 Concerning BIRTH CERTIFICATES.

Again the United Kingdom areattempting to use the Cossey case, and again I will state that the Cossey case is of no avail in respect of my case. The paragraphs which they have produced, which were taken from the judgement in the Cossey case, are in fact a statement from the court of what they were led to believe by the British Government, in the evidence that was given in the Rees case. Again I stress that the court was mislead by the British Government.

The British Government used the judgement from the Corbett case as an explanation to the court, as to their reasons why the birth certificate could not be changed or amended. As Judge Ormrod stated in his judgement, "what is meant by the word women in the context of a marriage. The criteria must , in my judgement be biological, for even the most extreme cases of transsexualism in a male or the the most severe hormonal imbalance which can exist in a person with male chromosomas, 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

10. purpose of marriage accordingly, and ignore any post operative intervention. My conclusion therefore is that the respondent is not a woman for the purpose of marriage but a biological male and has been since birth".

(A comment by Prof L .J Gooren on such a judgement is as follows: "There are many women everywhere in the world (also in the UK) with the Androgen Insensitivity Syndrome: they have XY chromosomes, testis, no uterus, but a vagina. They are identified as female at birth and raised as girls. They marry without Judge Ormrod’s consent. What is granted to these women must be granted to persons in a similar situation.")

Again, I stress the Corbett Judgement has no value here. His judgement had no real scientific backing behind it, neither did he have the right to make such a judgement, neither did the British Government have the right to use such a judgement, knowing that there is available scientific evidence to over-rule Ormrod's statement.

9. The content ions that in United Kingdom the birth certificate is a historical document as opposed to other countries. That statement has no factuality in it, it was only used as an excuse as to why they should not amend the birth certificate where necessary, neither is it stated in the Births Act that this is so. Neither can such an excuse be made as to why they should be able to renege on people's human rights.

In the Netherlands a similar situation existed, in that it was not possible to change the stated sex on a birth certificate, neither was it possible to make amendments to it. Until it was decided that the only way, was to make an Act of Parliament that would go into the civil law books, which are additional Acts to the Births Registers Act here, and are now law.

10. Neither are there such restrictions laid down in the 1953 Births and Deaths Act stating how a persons sex was to be determined. This was something that had already been taken taken for granted for a few thousands at years, that it the genitalia protruded it must be male, if the genitalia are inverted it must be female.

11. The Births and Deaths Act of 1953 was an act to consolidate earlier enactments. The Acts are created by parliament and are open to change by Acts passed by parliament. Neither is an individual such as a judge allowed to dictate how the Act itself shall be used. In this parliament is the supreme Lawmaker.

As stated from Halsburys Laws. The Births and Deaths Registration Act 1953. An Act to consolidate certain enactments relating to the Registration of Births and Deaths in England and Wales with corrections and improvements made under the Consolidation of Enactments (Procedure) Act 1949. [14 July 1953]

Sec; 1. PARTICULARS OF BIRTHS TO BE REGISTERED

(1) Subject to the provisions of. this part at this Act, the birth of every child born in England or Wales shall be registered

11. by the Registrar of Births and Deaths for the sub-district in which the child was born by entering in a Register kept for that sub-district such particulars concerning the birth as may be prescribed; and different Registers shall be kept and different particulars may be prescribed for live births and still births respectively.

Provided that, where a [stillborn child is] is found exposed and no information as to the place of birth is available the birth shall be registered by the Registrar of Births and Deaths for the sub-district in which the child is found.

(2) The following persons shall be qualified to give information concerning a birth that is to say-

(a) The father and mother of the child

(b) The occupier of the house in which the child was to the knowledge of that occupier born. (c) Any person present at the birth. (d) Any person having charge of the child

(e) In the case of a stillborn child found exposed the person who found the child.

Sec; 29 CORRECTION OF ERRORS IN REGISTERS

(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 or death 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.

Sec; 35 OFFENCES RELATING TO THE REGISTERS

If any person commits any of the following offences, that is to say—

(a) if being a Registrar, he refuses or without reasonable cause omits to register any birth or death or particulars concerning which information has been tendered to him by a qualified informant and which he is required by or under this Act to register. He shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale]

12. As can be seen above it is possible to have the required amendment placed on the full birth certificate. When a short birth certificate is made from the registers it will only show the persons officially altered sex status, and the new names. When a person then acquires an official identity document, such as a passport, drivers licence etc, the documents have a completely valid legal. But then again the persons newly acquired status can in no way shield them from any legally binding commitments that they were involved in before the change was officially registered.

Neither is it possible for the original entry to be erased and can be found by a third person, providing they know the original name and place of birth and the year. But then the original entry would have no legal validity any more, as the amendment would take legal precedence.

It should also be noted that the Registrar by not registering such new information without reasonable cause is committing an offence. It is clear that it as not a problem connected to the births register or anything in the act itself nor any such excuse as it being a historical document, as the Act itself is subject to repeal by parliamentary Act. The bane of the problem is the Corbett case, which as I have said earlier is invalid and it was contrived to deliberately create this situation.

In the documents that I have already sent can be seen copies of the letters from the OPCS where it was stated that there were no provisions in the registers for an amendment to be entered. Which was a lie, there is, and as such the Registrar has committed an offence under sec; 35 of the Births and Deaths Act. In that the documents I had sent to him were legally valid, medically approved, and he failed to register the amendment as is demanded under sec; 29 p. (3) of the Act.

13. in para 2.5 The representative of the United Kingdom stated that the amendments to the birth certificates, that I had included in my case documents, were carried out under the provisions of the statutes (or its predecessor). This is true, as I have shown here, but the statement (or its predecessor) shows clearly that the United Kingdom are again attempting to mislead the court. The Births and Deaths Act of l953 is as I have stated earlier, a consolidation of the Acts of England and Wales. The certificates I have shown were amended under sec; 29 of the Births and Deaths Act of 1953, and is still in force.

The attempts by the United Kingdom to again use the judgement of the Cossey case as a guide here is of no avail in my case. That judgement came about only through the misleading information the United Kingdom presented to the court.

A person of inter-sex is a transsexuai. The word transsexual was created by Dr Harry Benjamin an Endocrinologist from New York. He created the name as a medical term for the people he found who were suffering from this situation. He realised that such people were sexed wrongly from birth. That was in the 1950s, but why, was a mystery then. Since then the same situation hats been termed as a person of inter-sex, it means the same, but the term transsexual is the most widely common term used.

14. The representative for the United Kingdom states that in none of the incidences was gender reassignment surgery carried out on the people whose certificates were changed. Medically and surgically that is an impossibility. Hormone and surgical treatment had to be carried out, and evidence of that would have been given to the Registrar at the time. On reading of the newspaper article in their annexes, it can clearly be read that Roberta Cowell had to have hormone treatment and surgery, and her statements as to the feelings she had all her life, are exactly what a transsexual feels, no different. She was a transsexual, I should know as I have gone through the same situation. But then newspaper cuttings have no legal validity where the Law is concerned. Neither should a person like Roberta Cowell lose the legality she now has as a woman, and neither should I or any of the other people whose birth certificates that have been shown in this case. They are primary examples to show that the United Kingdom has wilfully mislead the court in Strasbourg in previous cases. (A comment again by

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Prof L G J Gooren, this time concerning the newspaper statements by Roberta Cowell, as have been forwarded by the government of the United Kingdom. "Several inter-sexes need hormone and surgery to achieve their status as male or female, there is no essential difference with transsexuals".)

15. They also state that they arc unable to supply information concerning these people, and that such information is private. This is an easy way out, but I do agree that such information is private, but that does not explain why information concerning me should be of a public interest to other people in the United Kingdom or anywhere else in the world, as I am no different.

Again they use the judgement of the Corbett case, and it is invalid. The truth is that if any of the people, whose birth certificates were changed prior to the Corbett judgement attempted to do so after that judgement, they would have been refused. Using the same reasoning that they have mislead the court with in the Rees and Cossey affairs, just as they are attempting to so do in my case.

16. In para 2.6 It is stated that; section 142 of the Criminal Justice and Public Order Act 1994 defines rape as vaginal or anal intercourse and the offence is not dependent on whether the victim is a man or a woman.

Again I accuse the United Kingdom government attempting to mislead the Commission. My enquiries into this particular piece of Legislation they speak of, states, ‘that the definition of rape against a person of the male sex is "forced anal penetration", and the definition of rape against a person of the "female sex is" "forced vaginal penetration". Therefore as they refuse to recognise my legal and lawfully given sex status as a woman, I can be legally raped in the United Kingdom. As an act of rape against me would be "forced vaginal penetration".

Concerning section 142 of the Criminal Justice and Public Order Act of 1994. The 1994 volume of Halsburys Law does not contain anything concerning this Act, which means that it has not been published yet. But it does contain under Criminal Law Vol 12 p.248 under Unnatural Offences section 12 Buggery (I)

It is a felony for a person to commit buggery with an another person or with an animal.

The act of buggery always has been and still is anal intercourse between two men. Rape is an entirely different matter. Under the Sexual Offences (Amendment) Act 1976. Section 1. Meaning of "rape"etc.

(i) For the purposes of section 1 of the Sexual Of fences Act l956 (which relates to rape) a man commits rape if-

(a) He has unlawful intercourse with a woman who at the time at the Intercourse does not consent to it; and

(b) At the time he knows she does not consent to the inter course or he is reckless as to whether she consents to it.

And, references to rape in other enactments (including the following provisions of this Act) shalt be construed accordingly.

(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such

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a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

17. It can clearly be seen that if it was put to a jury that the woman was not a woman, but a transsexual and still in the eyes of the law legally a man, it would be considered that the offence would come under buggery or assault. No consideration would be taken that at the time the assailant had unlawful vaginal intercourse and no act of buggery took place.

Again in VOL 12 CRIMINAL LAW p. 686 sec 2 para (3). In subsection (1) of this section "complainant" means a woman upon whom, in a charge for a rape offence to which the trial in question relates, it is alleged that rape was committed, attempted or proposed.

Therefore within English law I can be legally raped and the offence seen within the eyes of the Law as "assault or buggery". In that, within the eyes of the law in the United Kingdom I am considered a man and not a woman even though outside of the United Kingdom I am considered legally a woman. Which in reality I am.

18. In para 2.7 Nothing in this observation states that in the circumstances of serving a term of imprisonment in the United Kingdom that I would not be sent to a prison for men.

They state, "that in some cases post-operative transsexuals have been placed in a prison catering for the sex which accords with their new social status". In their statement, "post-operative transsexuals with their new social status", is very clear that the Government of the United Kingdom refuse to recognise such a persons legal status. There is a distinct difference between, a person's "social and legal status". Further they state, "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".

When consideration as based on non recognition of a persons legal sex status and only on social status ,then the outcome is inevitable that such a person could be sent to a prison for men.

For example, a male transvestite is legally a man, but they can be socially regarded in the female role. On the other hand a Transsexual is a person who is born wrong, where the sex differentiation process went wrong, and as such is a person of inter-sex. After treatment and corrective surgery, that person can no longer be regarded as a transsexual, but of the sex they were biologically meant to be, and must be given that legal recognition.

I can see nothing in the statements put forward by the United Kingdom, that I would not be incarcerated in a prison for men, and that is very clear, that again they refuse to accept my legal status as a woman.

19. In para; 2.8 Concerning, social security and pensions law. My complaint still stands in, that I am legally a woman and not a man as the United Kingdom would so wish me to be. Again they have cited the Cossey case, and again I

15. state, that this case is of no avail in my case. My legally given sex status by a court of law, within a parliamentary Act takes precedence over case law.

All social security benefits and state pension schemes here in the Netherlands regard me as legally a woman and not a man. Neither would any other country within the European Communities regard me as any other, except the United Kingdom. In this they are directly interfering in my legal status.

20. The use of para 26 in the Cossey judgement was used by the court, only because, the court had been mislead by the United Kingdom regarding the Corbett case. The judgement by Ormrod in that he purported he had been called upon for the first time in English law to define a person's legal sex. This was not true he had only been asked to declare the marriage null and void because the respondent at the time at the marriage was of the male sex. Which was true, in that the birth certificate had never been amended neither had the respondent been able to show otherwise. By going into the alternative Ormrod broke the Rules of the Supreme Court thereby making his judgement void. But it can be seen what the far reaching consequences of his judgement meant, and that his judgement gave powers to the public that they did not have before, these powers being discriminatory. This is what Ormrod said; "In some contractual relationships e.g. life assurance and Pension schemes, sex is a relevant factor in determining the rate of premium or contributions". And further on he said. There is nothing to prevent the parties to a contract of Insurance or Pension schemes from agreeing that the person concerned should be treated as a man or a woman, as the case may be. Similarly the authorities if they think fit, can agree with the individual that he shall be treated as a woman for National Insurance purposes, as in this case".

If for example the United Kingdom were to use such a rule for the purposes of determining the rate of premiums for a migrant worker from the European Communities who was in the same position as me they would be held in contravention of community Law. Such an act would be questioned by the Government from where the migrant worker came from. That the United Kingdom is refusing to recognise a person's legal sex.

It is quite clear that the United Kingdom, are, failing to recognise my legal sex status.

21.Para 2.9. The statement by the United Kingdom here has already been dealt with in para; 20. It is not necessary for any insurance company to deal with anything other than the information that is given. That I am a legally a woman is seen in my amended birth certificate, a short form of my birth certificate is enough for any insurance company, which shows no more than the information as to my legal status as a woman. Anything other is private and of no concern to anyone else. In the Netherlands all that is necessary to show employers insurance companies etc, if required, is a document that shows only a persons present status. The only time when more information is required about a person, say be for specific types of work, e.g. where a person may apply for a position that would involve

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Children, then a research is carried out on that person to be assured that the person has no convictions for child offences. Even then if it is seen that the person was originally recorded as male is treated as of no concern to the researchers as that information is private, and remains so and would not be disclosed to anyone else.

The United Kingdom have, already stated themselves that the information concerning the individuals who had their birth certificates amended is confidential, and that they have not consented to disclosure. (see para. 2.5) The same applies to me, as I have an amended birth certificate. Anything other than that is interference, in my personal life.

22. Concerning their contentions as to whether I have a criminal record. When such an amendment to a person's birth

certificate, is made, then a person has it made clear to them from the beginning , that such an amendment implies no derogation from previous commitments, that includes facts such as a criminal record.

Again I see their statement as implying that they have a right to disregard my legal status and interfere in my private life.

23.The last two lines of 2.9 of the UKs observations concerning, "whether or not I as the Applicant wish to deal with a company, regarding Insurance and Pensions on the terms as set down by the British Government" shows clearly the lack of recognition of somebody’s sex/gender identity. In my case it was not acquired, because that gender identity was always there, it took time and some medical interventions to make the nature of it apparent (visible). The problem is not whether I am willing (or not) to accept the terms of a company. But the problem as whether a company is legally free to set terms/to use practice which results in discrimination of one woman (me) compared to others. It is NOT the freedom of a State Party to the European Convention to allow companies in its territory to apply discriminatory rules/practices. As I am legally a woman I should be treated like all other women. The use of a birth certificate, - that as the UK states "only presents an historical fact" - should and cannot be used for present judgements/practice when that certificate - the unamended version in the United Kingdom - is clearly wrong, as in my case. (see Prof. Gooren's statements cited in my observations).

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PART III ADMISSIBILITY AND MERITS

Before giving my more specific comments on the observations of the UK Government I would like to state the following.

As far as the merits of my case are concerned, I like to join the dissenting opinion of Judge Maartens in the Cossey case. He has - much better than I can do, as not fully educated in human rights law - argued why the Rees case should have been decided differently and why this decision should have been overruled in the Cossey case. I like to have this legal argument considered as mine judging the merits of my case.

Indeed, the essence of my complaints is that the UK Government denies the full legal recognition of who I am and always have been; a woman. In that regard I like to refer to Judge Maartens opinion in the Cossey Judgement under 2.7, and make the following observation. Judge Maartens, argued on the basis of a person’s freedom to shape himself and his fate in the way that he deems best fits his personality and says; "the (transsexual) demands to be recognised and to be treated by the law as a member of the sex he has won".

My main and most important argument based on the scientific research I presented in this document (see para 4, p. 2 - 7) is: I want full legal recognition of the person I am and I always have been, that is a person with a female gender/sex identity. The gender identity given to me at birth based on external genitalia was wrong. It turned out that that I was one of the very few persons for whom the usual way of sex assignment (based on external genitalia) was not reliable because the sexual differentiation process of the brain did not follow the course anticipated on the base of the external genitalia.

It as a fundamental human right to be fully, legally and socially, recognised as the person I am and always was, a person of female (gender/sex) identity. It is that right that the government of my country denies me.

My more specific observations should be seen in the light of this fundamental violation of my rights under the European Convention of Human Rights and Fundamental Freedom (in particular: art. 3, 8, 12 and 14).

1. Para. 3.4. The United Kingdom declares that. Contracting States are not required to recognise, for legal purposes, the new sexual identity of a person who has undergone gender reassignment surgery. Praying on the Cossey judgement para 40 and B v France, and from this that I have no legal right to recognition as a woman, and that Contracting State have a wide margin of appreciation.

2. Contracting states are required to recognise a persons legal sexual identity, when that identity has been medically and certified and recognised, as in my case, and by a court of law, and that the persons birth certificate must be amended to show this to be so. Which has been done, in that a new birth certificate

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Had to be made, done under due process of law.

3. The use of the Cossey Judgement para 40 by the United Kingdom is of no avail in my case. That judgement was based on the Rees judgement. Neither had the Court been given the full truth by the United Kingdom, in that the plaintiff Rees did have the right for an amendment on his birth certificate under section 29 of the Births and Deaths Act, so did the plaintiff Cossey.

The statement by the Court that no scientific developments had occurred in this field is also not true. They were relying solely on such contentions by the United Kingdom, who have not attempted to make such research, but rely solely on an invalid judgement in the Corbett case.

Also in that paragraph is mentioned the European Parliament Resolution 1117of 12 September 1989 and Recommendation 1117 of 29 September 1989. Stating that both were to seek the harmonisation of laws and practices in this field.

This is not really true. The European Parliamentary Resolution was designed only for states who were deficient within their Legal practices, concerning transsexuals, and that such states would discuss this matter within their own parliament, to remedy the situation, and accord to these people their legal rights. For countries, that had already remedied the situation within their legal practices, the Resolution had no meanings. In this manner the resolution was meant for such countries as the United Kingdom, who chose to ignore it, on the grounds that such Resolution were not binding, which showed contempt for the European Community.

Recommendation 1117 of the Council of Europe, was a recognition of what was contained within the Parliamentary Resolution. That States who reneged on their duties to recognise a transsexuals legal status fully, regarding treatment, change of the persons legal sex status on birth certificates and identity documents was a breach of Art 14 of the Convention.

The resolution and the recommendation were not as was stated to seek harmonisation of laws and practices.

The statement also that States enjoyed a wide margin of appreciation due to little common ground between them, has no meaning any more, as European Community States have closed this gap.

This was agreed upon at the 23rd Colloquy of Medicine European Law and Transsexualism, at the Free University of Amsterdam in 1993. Also at this conference was produced the research evidence from the Gender Centre at the Free University Hospital of Amsterdam, that showed conclusively that a persons sex could not be determined at birth. Throughout the whole conference representatives of the United Kingdom Government attended only two days, neither did the United Kingdom show any Research evidence to dispute the evidence shown, as they had none. At the end of the first part of the conference, it was concluded that the medical evidence was agreed upon. And so was it agreed that countries who were members of the Council of Europe, and countries outside of the Council, would recognise the validity of a transsexuals legally amended sex status. That where practices within each state differed and how they made, this legal change other countries would accept the result.

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It was then asked if there was any dissension, there was none. Even the United Kingdom did not show dissent to this agreement. Therefore it must be asked, where is this wide margin of appreciation? The answer is, there is none.

4. The use of B v France in this case again is of no avail. It is a case that has no relation to this case. In that case B had demanded through the civil Courts in France that her name be legally changed, on her birth certificate, which under French law was possible. But this had been refused to her on the grounds that she had undergone corrective surgery in another country. Where it was also stated that there were existing possibilities in France, which included legal safeguards, but she had been denied proper treatment in France, which was why she had gone to another country for required surgery.

The French Government prayed upon the Court that the Rees and Cossey cases were similar to the case of B, and that the Court should hold the same view concerning the birth certificate. In the end it was refused and the Judgement given in favour of B.

The statement para 48 of the Judgement in the case of B says at one point, "that there still is uncertainty as to the essential nature at transsexualism". That is now already known and was revealed at the 23rd Colloquy, and can be seen on p. 3, 4, 5, 6, and 7of this document. The judgement on the case of B was given in 1992, which was before the Colloquy in 1993.

5. Para 3.5 Concerning whether the States treatment of a transsexual amounts to a positive obligation under Art. 8., and a fair balance between the individual and the community, and detriment suffered by the applicant. Again using Cossey Judgement and B v France Judgement.

Again neither of these two cases are of any avail in my case. As the applicant in this case I am legally a woman, which the United Kingdom refuses to recognise, but have given no legitimate reasons as to why they are prepared to interfere in my private life by not recognising the fait accompli on my part. I am seen as a woman, legally by the community in the Netherlands and other countries, and accepted as so, neither are other people aware of me being anything other. In this respect there is nothing of an unfair balance between me, and the community. The only unfairness in this situation is the United Kingdoms refusal to recognise my legal status.

6. Para 3.6 The United Kingdom is attempting to use the Cossey and the B v France Judgements again. In saying that the court concluded in the Cossey case that there had been no breach of Art 8 in refusing to issue the applicant with a new birth certificate showing her sex after surgery.

As I have shown on page 10 para; 11 in this document the plaintiff Cossey did have a right for her birth certificate to be changed under Sec. 29 CORRECTION OF ERRORS IN REGISTERS.

It was only by the misleading statements concerning such changes, to the court, in both the Rees and Cossey cases that such a judgement came about.

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7. The use of B v France in this case is of no avail. Where the United Kingdom state, that the Court explained the difference in that case to the Cossey and Rees case. Which was based on the contention that the birth certificate in the United Kingdom was a historical document as opposed to France where such a certificate was intended to record current facts only, came about from the misleading information that the United Kingdom gave to the Court.

The Births and Deaths Act in the United Kingdom is not a historical document. It is a Register to register the facts of a birth or a death, subject to changes where they are necessary, but the original facts may not be erased, they can be amended, any amendment taking legal precedence over the original inscription. As I have already shown on page 10 of this document.

The same principles applied in the Netherlands, and an Act of Parliament made it possible for such changes to be made in the Birth Act.

The United Kingdom could make an amendment to the Birth Act whereby they could deny a person of transsexual birth the right to amend the birth certificate under the existing section 29, but to do so would be seen as a direct infringement of the European Convention of Human Rights.

7. I see no base for the contentions of the United Kingdom in para; .3.6.

8. In para 3.7 The United Kingdom state that none of the complaints I have made in my case establish a degree of practical detriment to my private life.

I see here that the United Kingdom believe that they have the right to deny me my legality as a woman, and the legality of my new birth certificate, but at the same time state that I can live free from state interference. At the same time, state further, that on rare occasions I am obliged to reveal the sex I was born into for good reasons.

The sex that was placed on my birth certificate was by the hand of a person that took it for granted, that I was male. The reality at my real sex came about four years later. I was not really born into the male sex as is contended by the United Kingdom, but transsexual or inter-sex.

The only State interference in this matter is by the United Kingdom and they have given no accountable reason as to why they should. The truth is that they know that in two previous cases to Strasbourg they did not tell the truth and were given a judgement in their favour, that was in detriment to the human rights of Rees and Cossey. One of those two people, the plaintiff Cossey, has found that she has had to leave the United Kingdom and live in the United States of America, where her rights as a woman are respected. But even then now she is married the spectre of the birth certificate, which the United Kingdom denied her the legal right she had, to amend it, is still there. This shows how far the interference of the United Kingdom has gone in regards to her private life. They are trying to do exactly the same to me, only in my case I have a legally amended birth certificate, but still they will interfere in my private life by stating that they will not recognise it.

21.

I do not have to reveal for any legitimate reasons what was inscribed originally in the birth registers. It is only necessary to reveal that i am a woman and nothing else. Why should I. I am legally a woman.

9. Para; 3.8 There, is little to answer on the statements in this paragraph that have not already been answered. As I have stated before IT IS POSSIBLE to amend the birth certificate in the United Kingdom in the case of a person who was born a transsexual, which cannot be seen at birth, but only later in life. Again the Judgement that was given in the Cossey case was based on misleading given to the Court, by the United Kingdom. Neither as I have stated before is the birth certificate a historical record of facts, it is a document subject to changes as laid down in the Births and Deaths Act of 1953.

10. Para; 3.9 The statements as laid down in this paragraph, are in detriment to my private life, and constitute an infringement of Art 8.of the Convention. The United Kingdom is not entitled to regard me as a man for the purposes of the law of marriage nor for any other purpose because I am not a man and have never been a man. To consider me as a man on the basis of my external genitalia was - in my case - wrong ("see my general observations")

My legality, as a woman was qualified by medical findings and recognised within the law, as laid down in the Civil Code of the Netherlands. The United kingdom have no right to attempt to take that legal status away from me, or attempt to interfere in any way. The United kingdom are obliged to recognise my status as a woman for all legal purposes, including marriage, social security and pension laws. They are also obligated under section 29 of the 1953 Births and Deaths Act to inscribe an amendment in the Births Registers to this fact.

11. Para; 3.10 The United Kingdom are fully aware of the medical research findings that were shown at the 23rd Colloquy of European Law medicine and Transexualism, in that they had representatives present at the conference. Neither did those representatives give any sign of dissent when all the participants were asked if there was any disagreement to the findings at that conference. I was at that conference, and at the end of the first part, I personally asked the representative for the Home office if there would from that point be any change in the attitude of the United Kingdom. The answer I was given, that in their opinion there were no changes, neither would there be any changes in the position of the United Kingdom, on this matter. Neither was the United Kingdom able to show any research evidence contrary to the research evidence shown. Again I accuse the United Kingdom of trying to mislead the Court on this matter.

12.para 3.13 The contention of the United Kingdom that they are not in breach of Art .14 of the Convention in that they are trying to incorporate breaches at Art 8 cannot be accepted.

22.

Art 14 has total different meanings in this respect as in comparison to Art 8.

In my case the United Kingdom have breached Art 8 in respect to my private life concerning my birth certificate, in that they have clearly stated that they are prepared to interfere in my private life.

Art 14 in this case involves the refusal by the United Kingdom to respect Recommendation 1117. Which clearly demands legal recognition of a transsexual, and above all that the sex of a person must be respected, and birth status. In this case they refuse to recognise my true birth and sex status as is now already recorded on my new birth certificate. As opposed to Art 8 where they are prepared to interfere in my private life, for which they have not shown any valid reason to do so.

I contend that they are in breach of Art 14 to my detriment.

13 para 3.14 Concerning Art 12 at the Convention. The United Kingdom, use the judgement of the Cossey and the Rees case as an example as to why I do not have the right to marry a man. It must be remembered that the judgement in the Cossey case was based on the Rees case, it must also be remembered that the findings of the Commission in the Cossey case were opposite to that of the High Court, as can be seen in para 43 to 41, where the Commission stated, 43. The Commission now considers that marriage and the foundation of a family are particular events in the life of an individual which go beyond the mere realisation of private and family life as they involve two persons who form a legally and socially recognised union which creates both responsibilities and privileges. Article 12 of the Convention therefore guarantees a specific and distinctive right of an independent nature as compared with the right to protection of private and family life guaranteed by Article 8 para.1of the Convention.

In fact the distinction between Articles 8 and 12 must be seen essentially as a difference between the protection under

Article 8 of de facto family life irrespective of its legal status (cf Eur. Court H.R., Marckx judgement. of 13.6.1979,

Airey judgement of 9 10 1979 and Johnston judgement of 18 12 l986, series A Nos. 31, 32 and 112) and the right under Article 12 for two persons of opposite sex to be united in a formal, legally recognised union.

Therefore, the finding that there has been no violation at Article 8 of the Convention does not automatically exclude the finding at a violation of Article 12.

44. As far as the present applicant's right to marry is concerned. The Commission first observes that her application contains a factual element which distinguishes it from the Rees case and the other transsexual cases so far considered, in that the present applicant has, according to her uncontested statements, a male partner wishing to marry her.

45. The Commission agrees, in principle, with the court that Article 12 refers to the traditional marriage between persons of opposite biological sex.

23.

It cannot, however be inferred from Article 12 that capacity to procreate is a necessary requirement for the right in question. Men or women, who are unable to have children enjoy the right to marry just as other persons. Therefore, biological sex cannot for the purpose of Article 12 be related to the capacity to procreate.

46 It is certified by a medical expert that the applicant is anatomically no longer of the male sex. She has been living after gender reassignment surgery as a woman and is socially accepted as such.

In these circumstances it cannot, in the Commission’s Opinion, be maintained that for the purpose of Article 12 the applicant still has to be considered as being of male sex. The applicant must therefore have the right to conclude a marriage recognised by the United Kingdom law with the man she has chosen to be her husband.

14. The United Kingdoms contentions that certain cases named as, X Y and Z v United Kingdom. Which were apparently dismissed by the Commission on the 1st of December 1994 as being manifestly ill-founded that Article 12 conferred a right for a transsexual to marry a person of the same sex as the transsexual had at birth. Bears little relation to my case and my legal status.

I am legally a woman, and I have the legal right as a woman to marry any man I choose to marry and who wishes to marry me. The law giving protection to my rights as a woman concerning divorce and alimony. The United Kingdom, have no right to even attempt to ever deny me such rights, to do so would be to hold law in contempt, and human rights.

15. Para: 3.17 The United Kingdom denies that their actions concerning me have violated Art 3. I contend that they have and still contend that their actions amount to mental cruelty, and that they will continue to so by denying me my legal status, and interfering in my private life. Their actions have also placed me in the peculiar position of not being able to return to my own country to enjoy my legal status as a woman.

Their actions have also placed me in the position of not being able to use my British passport as a travel document They refuse to recognise my legal status as a woman and would interfere in my private life where I may have to produce my English birth certificate. My only alternative is to use my Netherlands nationality, and even then on entering the United Kingdom I have to do so as a foreigner in my own country. Even then they still refuse to recognise my legal status as a woman.

Their actions amount to mental cruelty, which they refuse to desist from.

Their use of the B v France case in this respect is of no avail here, considering the report of the Commission of that case at para 76 - 87. In that case they have looked at the meaning of Art 3 in the light of Ireland v United Kingdom and the Soering judgement. Both of those cases have no resemblance to mine. In Ireland v United Kingdom this was a case of premeditated torture used against members of the IRA.

24.

Torture and degrading treatment and punishment inflicted upon a prisoner can go hand in hand. The Soering judgement on the other hand involved a person who was arrested for a bizarre murder that he committed in the State of Virginia in the United States of America, and that he was arrested in England. The government of the United Kingdom consented to the demand of extradition from the United States of America. Disregarding the consequences that he would receive the death sentence, and the long wait in death row, and the methods used in the United States to execute people. Considering also his age, which was 18 years and his mental state. It was decided by the Court, that for the United Kingdom to carry out the extradition would be a breach of Art 3. It is clear that both the Ireland v United Kingdom cases and the Soering case were both of a different nature to each other, and the Commission attempted to define; what constitutes a breach at Art 3 in B v France in relation to those two cases. There was none.

Looking at Art 3 and its wording; "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." It cannot be held that it has only one particular meaning. Torture and degrading treatment or punishment are not necessarily one act together. A person can be treated in a degrading manner and not necessarily physically tortured or punished. But the end result of degrading treatment can cause mental distress that can be described as mental cruelty. A wife who is constantly being beaten by her husband is degrading treatment resulting in mental stress and mental cruelty. A person who is persistently denied their human and legal rights by a government, resulting in public scrutiny, and social denial of their rights, is mental cruelty, which is degrading treatment. In this respect the United Kingdom are guilty of this act in respect to my legal and social rights.

I uphold my contention that they are in breach of Art 3 in this respect.

16. Para; 3.18 - 3.20, Concerning Protocol 4 art 3. The United Kingdom is correct in stating that they have not ratified Protocol 4. Since my accusations against them that their actions in refusing to recognise my legal status as a woman, deprive me of the right to enjoy my legal status on entering the United Kingdom, that this is a form of expulsion from my own country. I still contend the use of this Article here, even though I am aware that they have not ratified it, is to show the extent of my position. But if the Commission care to look again at the documents that I sent to them on the 3rd of December 1993 it will be seen that I covered all the Articles I had used, to go under Art 17, under conclusions. Where it reads; "by refusing to recognise my legal status as a woman in my own country of origin and birth and as such are aiming to destroy my rights and freedoms as set down in the Convention".

Article 17 of the Convention states: "Nothing in this convention may be interpreted as implying for any State, group, or persons, any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".

25.

My contentions that they have refused to recognise my legal status on entering the United Kingdom, amount to a form of expulsion, are aiming to destroy my rights and freedoms as set down in the Convention.

CONCLUSIONS

My legality as a woman has clearly been shown by documented evidence.

I repeat that they have clearly shown that they are guilty of having contravened my rights under the Articles of the Convention as I have presented to the Commission, and will wilfully continue to do so.

Neither is there any alternative in their conclusions para.4.l in their declaration that my application ill founded and that if declared admissible that there has been no breach of the Convention by the United Kingdom. Which shows that they are not prepared to accept mediation by the Commission. Therefore this case must go forward to the High Court for a judgement.

My application is, well founded, well documented, and clearly showing my legal status that they deny. I demand that. Since they wilfully refuse to accept my legal status as a woman and accord to me all the rights that I am entitled to, under that legal status, that they must pay me financial compensation for mental cruelty and all the costs that they are now responsible for. Which have been incurred by my having to bring this case to the Commission.

I demand that the Commission find the United Kingdom to be

26.

Held in breach of having violated my human and legal rights in this affair.

Signed this day 17 - February - 1995

By. Rachel Horsham. Plaintiff.

(Note. The original hand written statement from Professor Gooren concerning the scientific findings of the Stria terminalis, presented with this document, can be seen in Gif image No. 85 on the index page. The letter from Professor Gooren stating that all the medical evidence presented is correct, can be seen on Gif image No. 86.)  

BIRTHS AND DEATHS REGISTRATION ACT 1953 723

15 Particulars of deaths to be registered . . . . . . . . . 738

16 Information concerning death in a house . . . . . . . 739

17 Information concerning other deaths . . . . . . . . . 740

18 Notice preliminary to information of death. . . . . . . . 741

19 Registrar’s power to require information concerning death . . . . . 741

20 Registration of death free of charge . . . . . . . . . 742

21 Registration of death after twelve months . . . . . . . . 742

22 Certificates of cause of death . . . . . . . . . . . 743

23 Furnishing of information by coroner . . . . . . . . . 744

24 Certificates as to registration of death . . . . . . . . . 744

PART Ill

25 Provision of registers, etc, by Registrar General . . . . . . 746

26 Quarterly returns to be made by registrar to superintendent registrar . . 746

27 Quarterly returns by superintendent registrar to Registrar General . . 747

28 Custody of registers, etc . . . 747

29 Correction of errors in registers . . . . 748

30 Searches of indexes kept by Registrar General . . . . 749

31 Searches of indexes kept by superintendent registrars . . . . 750

32 Searches in registers kept by registrars . . . . . 751

33 Short certificate of birth . . . . . . 751

34 Entry in register as evidence of birth or death . . . . 752

35 Offences relating to registers . . . . . . . 754

36 Penalties for failure to give information, etc . . . . . 754

37 Penalty for forging certificate, etc . . . . . . . . 755

38 Prosecution of offences and application of fines . . . . . . 755

39 Regulations . . . . . . . . . 756

40 Sending documents by post . . 756

41 Interpretation. . . . . . . 757

42 Savings,etc . . . . . . . 758

43 Repeals and consequential amendments . . . . . . . 758

44 Short title, extent and commencement . . . . . . . 759

First Schedule—Consequential Amendments of other Enactments. . 759

In Act to consolidate certain enactments relating to the registration of births and deaths in England and Wales with corrections and improvements made under the Consolidation of

Enactments (Procedure) Act 1949 [14 July 1953]

Registration of overseas births and deaths. The Registration of Overseas Births and Deaths

Regulations 1982, SI 1982/1123, as amended by SI 1982/1647, SI 1985/1574 (made under the British Nationality Act 1981,s ⁴l(l)(g), (h), (i), Vol 31, title Nationality and Immigration) make provision for the egistration of births and deaths of certain persons in foreign and Commonwealth countries. The births of the following persons outside the United Kingdom and British Dependent Territories may be registered: (a)

 724 VOL 37 REGISTRATION CONCERNING THE INDIVIDUAL

a person born a British citizen after commencement of the 1981 Act; (b) a person born a citizen of the United Kingdom and Colonies who became a British citizen at commencement of that Act; (c) a person born a British Dependent Territories Citizen after commencement; (d) a person born a citizen of the United Kingdom and Colonies who became a British Dependent Territories citizen at commencement; (e) a child born in a foreign country during the 12 months preceding commencement, whose father at the time of the birth was a citizen of the United Kingdom and Colonies by descent only, providing registration is effected before the child is 12 months old; and (f) a person born a citizen of the United Kingdom and Colonies who became a British Overseas citizen at commencement. The following deaths may be registered: (a) a person who at his death was a British citizen, British Dependent Territories citizen or British Overseas citizen; (b) a person who would have become a British citizen, British Dependent Territories citizen or British Overseas citizen at commencement of the 1981 Act but for his death.

The Registration (Entries of Overseas Births and Deaths) Order 1982, SI 1982/1526 (made under the British Nationality Act 1981, s 41(4), Vol 31, title Nationality and Immigration) applies certain provisions of this Act (as noted thereto) to certified copies of birth and death entries sent for deposit with the Registrars General in the United Kingdom by consular officers and High Commissioners abroad.

Births and deaths at sea and in the air. Provision concerning the registration of births and deaths occurring in any part of the world on HM ships and aircraft or on any other aircraft not registered in the United Kingdom but for the time being employed for the purposes of HM forces, and of deaths outside the United Kingdom of travellers on such aircraft in consequence of an accident is made by the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957, s2 post. Provision for the registration of births and deaths in the case of merchant ships is made by the Merchant Shipping Act 1970, s 72, Vol 39, title Shipping and Navigation.

Provision concerning the registration of births and deaths in aircraft registered in the United Kingdom and deaths outside the United Kingdom of travellers on such aircraft killed on the journey in consequence of an accident is made by the Civil Aviation Act 1982, s83, Vol 4, title Aviation, and the Civil Aviation (Births, Deaths and Missing Persons) Regulations 1948, SI 1948/1411, as amended by SI 1972/323 (which now have effect under s 83 of the 1982 Act). See also the Hovercraft (Births, Deaths and Missing Persons) Regulations 1972, SI 1972/1513 (which now have effect under s 83 of the 1982 Act, as applied to hovercraft).

Adopted children register. This register, which is maintained by the Registrar General, contains such entries as are directed by adoption orders; see the Adoption Act 1958, s 20, Vol 6, title Children. The 1958 Act is wholly repealed by the Adoption Act 1976, s 73(3), Sch 4, Vol 6, title Children, as from a day to be appointed under s⁷⁴(2) of that Act, and s 20 of the 1958 Act is replaced, as from that date, by s50 of the 1976 Act. As to the prescribed form of entry, see the Forms of Adoption Entry Regulations 1975, SI 1975/

1959, which are made sinder s21(1) of the 1958 Act, and which, if still in force at the commencement of Sch I para 1(1) to the 1976 Act, will have effect under that sub-paragraph, by virtue of s 73(1) of, and Sch 2, para I to. that Act. See, further, as to certified copies, indexes, searches, amendment and rectification of the Adopted Children Register, ss 20,24 of the 1958 Act, which will be replaced by s 50 of, and Sch 1, pars 4 to, the 1 976 Act. For special regulations applicable to the registration, etc of adopted children, see the Registration of Births, Deaths and Marriages Regulations 1968, SI 1968/2049, regs 37. 38, as amended, in the ease of reg 37, by SI 1982/955, and the Birth Certificate (Shortened Form) Regulations 1968, SI 1968/2050, as modified, in relation to Wales, by SI 1969/203.

Armed forces and service civilians. Provision for recording deaths, births and marriages among members of the armed forces and service civilians and their families overseas is made by the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957,s 1 post.

Northern Ireland. This Act does not apply; sees 44(2) post.

PART I

(1) Subject to the provisions of this Part of this Act, the birth of every child born in England or Wales shall be registered by the registrar of births and deaths for the subdistrict in which the child was born by entering in a register kept for that sub-district such particulars concerning the birth as may be prescribed; and different registers shall be kept and different particulars may be prescribed for live-births and still-births respectively:

Provided that, where a [still-born child] is found exposed and no information as to the place of birth is available, the birth shall be registered by the registrar of births and deaths for the sub-district in which the child is found.

(2) The following persons shall be qualified to give information concerning a birth, that is to say—

BIRTHS AND DEATHS REGISTRATION ACT 1953 s 2 725

(a) the father and mother of the child;

(b) the occupier of the house in which the child was to the knowledge of that occupier born;

(c) any person present at the birth;

(d) any person having charge of the child;

[(e) in the case of a still-born child found exposed, the person who found the child].

NOTES

The words in square brackets in the proviso to sub-s (I) were substituted, and sub-s (2)(e) was .added by the Children Act 1975,s 108(1)(a), Sch 3, para 13.

This Part of this Act. Ie Pt I (ss 1—14A) of this Act.

Registrar of births and deaths. The appointment of registrars of births and deaths is now governed by the Registration Service Act 1953,s 6 post, while the appointment and powers and duties of deputy registrars and interim registrars, respectively, are dealt with in ss 8 and 9 of the same Act. See also for provisions as to appointments in force at the commencement of that Act. S 22(1) thereof, and for special provisions as to existing non-salaried registrars, s 18 thereof.

Sub—district. For the purposes of, inter alia, this Act. in every non-metropolitan county and metropolitan district there are to be one or more districts and in every district there are to he one or more sub-districts; sec the Registration Service Act 1953,s5(1) post. The number and boundaries of the districts and sub-districts are among the matters for which provision is to be made by a local scheme; sees 13(2)(a) of the same Act.

Register. The registers are to be in such form as may be prescribed and to be provided by the Registrar General; see s 25 post. Certified copies of entries and, if there have been no registrations, certificates to that effect are to be delivered to the superintendent registrar in accordance with s 26(1) post. See also as to his duties in connection therewith. ss 26(2). 27 post.

Provisions as to the custody, etc, of registers, etc. are contained in s 28 post, and provisions as to evidence in s 34 post.

As may be prescribed. Ic prescribed under s 39 post; sees 41 post. See, however, as to naming a person as the father of an illegitimate child, s 10 post. For regulations governing the registration of births generally, see the Registration of Births, Deaths and Marriages Regulations 1968, SI 1968/2049, as amended, as noted to s 39 Post.

Still—births. For special provision as to registration of still-birth, see further s II post.

Offences. Offences relating to registers are dealt with in s 35 post. See also as to prosecutions, s 38 post.

Adoption of children. See the Introductory Note to this Act.

Definitions. For "birth", "father", "house", "live-birth", "mother". "occupier", "prescribed", "still-birth" and "still-born child", see s 41 post.

2 Information concerning birth to be given to registrar within forty-two days

In the case of every birth it shall be the duty—

(a) mother, of each other qualified of the father and mother of the child; and

(b) in the case of the death or inability of the father and informant,

to give to the registrar, before the expiration of a period of forty-two days from the date of the birth, information of the particulars required to be registered concerning the birth, and in the presence of the registrar to sign the register:

Provided that—

(i) the giving of information and the signing of the register by any one qualified informant shall act as a discharge of any duty under this section of every other qualified informant;

(ii) this section shall cease to apply if, before the expiration of the said period and before the birth has been registered, an inquest is held at which the child is found to have been still-born.

5262 REGISTRATION OF BIRTHS, DEATHS, MARRIAGES, ETC.

54(1)(a), (b), (c), or (e), whichever is appropriate, in the presence of the qualified informant specified in the authority of the Registrar General.

(3) Where any correction is made under paragraph (2) the superintendent registrar or the registrar concerned shall write in the margin of the entry a note in the following form— "Error in corrected on by me Superintendent Registrar [or Registrar], in the presence of on the authority of the Registrar General",

and shall complete and sign the note in the places provided whereupon—

(a) the informant shall sign the note in the place provided; and

(b) the superintendent registrar or the registrar concerned shall after the signature of the informant add the informant’s qualification for giving information concerning the correction.

(4) Where no qualified informant is available to witness the correction, the superintendent registrar or the registrar concerned shall write in the margin of the entry a note in the following form (or in such other form as may be authorised by the Registrar General in any particular case)— "Error in corrected on by me Superintendent Registrar [or Registrar] on the authority of the Registrar General",

and shall complete and sign the note in the places provided.

Correction of errors of fact or substance

58.—( 1) Where it appears or is represented to a superintendent registrar or a registrar that there is an error of fact or substance in a completed entry in a register of live-births, still-births or deaths in his custody, other than an entry to which Regulation 59 applies, he shall—

(a) send a report to the Registrar General giving such information as the Registrar General may require and enclosing a copy of the entry; and

(b) comply with any instructions which the Registrar General may give for the purpose of verifying the facts of the case and ascertaining whether there are available two persons qualified to make a statutory declaration required by section 29(3) of the Act(a).

(2) On being informed by the Registrar General that the error may be corrected on production of such a statutory declaration, the superintendent registrar or the registrar concerned shall on production to him of the statutory declaration correct the error in the following manner—

(a) he shall underline the erroneous matter in the entry; and

(b) he shall write in the margin of the entry a note in the following form (or such other form as the Registrar General may authorise in any particular case)— "In No in for read Corrected on by me Superintendent Registrar [or Registrar] on production of a statutory declaration made by and

and he shall enter the particulars of the correction and of the declarants and complete and sign the note in the places provided.

Correction of error on coroner’s certificate

59.—( 1) Where the superintendent registrar or the registrar having the custody of a register containing an entry made in pursuance of a coroner’s certificate after inquest receives—

(a) notification from the coroner of a clerical error in the certificate in respect of any entry made on or after 1st April 1969; or

(b) a certificate relating to that entry given by the coroner pursuant to section 29(4)(a) or (b) of the Act(b), as to an error of fact or substance in the certificate after inquest and as to the true facts of the case,

(a) Section 29(3) was amended by Schedule 2 to the Registration of Births, Deaths and Marriages (Fees) Order 1968 (S.I. 1968/1242).

(b) Section 29(4) was amended by Schedule 12 to the Criminal Law Act 1977 (c.45) and by Schedule 2 to the Coroners Act 1980 (c.38).

(2) On receiving the authority of the Registrar General to correct such an error, the superintendent registrar or the registrar, as the case may be. shall, in the presence of a qualified informant specified in the authority for the purpose, correct the error in the manner provided in regulation 72 (1), (a), (b). (c) or (e), whichever is appropriate.

(3) Where any correction is made under this regulation, the superintendent registrar or the registrar, as the case may be, shall write in the margin of the entry a note in the following form —"Clerical error (or omission) in. . corrected on. . . 19 . . by me….. Superintendent Registrar (or Registrar), in the presence of . .. . . on the authority of the Registrar General";

and shall complete and sign the note in the places provided; and the informant shall sign the note in the place provided and the superintendent registrar or registrar shall add to the signature of the informant his qualification.

Errors of fact or substance

75.—(1) Where it appears or is represented to a superintendent registrar or a registrar that there is an error of fact or substance in a completed entry in a register of births, still-births or deaths in his custody, not being an entry made in pursuance of a coroner’s certificate after inquest, he shall send a report to the Registrar General about the alleged error, giving such information as the Registrar General may require, together with a copy of the entry, and shall comply with any particular instruction which the Registrar General may give for the purpose of verifying the facts of the case and ascertaining whether there are available two persons qualified to make a statutory declaration required by section 29(3) of the Act (which relates to the correction of errors in registers).

(2) On being informed.by the Registrar General that the alleged error may be corrected on production of a statutory declaration made by the two persons aforesaid in such terms as satisfy the requirements of the said section 29(3), the superintendent registrar or the registrar, as the case may be, shall on production to him of the statutory declaration correct the error in the following manner—

(a) he shall underline the erroneous matter in the entry; and

(b) he shall, unless otherwise directed by the Registrar General, write in the margin of the entry a note in the following form—

"In No……….. in………for………………read……………………………

Corrected on…………………….. 19……..by me……………Superintendent

Registrar (or Registrar) on production of a statutory declaration made

By……………………………………..and …………………………………..".

and he shall enter the particulars of the correction and of the declarants and complete and sign the note in the places provided.

Correction on coroner’s certificate

76.—(l) Where the superintendent registrar or the registrar having the custody of a register containing an entry made in pursuance of a coroner’s certificate after inquest receives a certificate relating to that entry given by the coroner authorising the correction of the entry, he shall send a report to the Registrar General about the error, together with a copy of the entry and any coroner’s certificate relating to the entry.

748 VOL 37 REGISTRATION CONCERNING THE INDIVIDUAL

NOTES

Register of live—births, etc. See ss 1(1) and 15 ante.

Register box. Strong fire-resisting boxes are to be provided under the Registration Service Act 1953, 12 post. Marriage register books kept by a registrar are also, when not in use, to be kept in the boxes; see the Marriage Act 1949, s 59 ante.

Registrar GeneraL See the note to s 7 ante.

Certified copies. Certified copies of entries in registers kept in the General Register Office are not public records for the purposes of the Public Records Act 1958, Vol 17, title Evidence; see s 10(1) of, Sch 1, para 2(2)(b), to, that Act.

General Register Office. See the Registration Service Act 1953,s 2 post.

Minister. Now the Secretary of State for Social Services; see the note "Minister of Health" to s 41 post.

Offences. A person who, having the custody of any register of births or deaths, carelessly loses or injures the register or allows it to be injured, is guilty of an offence under s 35 post; see para (b) thereof. See also as to prosecutions, s 38 post.

Delivery up on ceasing to hold office. See the note to s 27 ante.

Definitions. For "live-birth", ‘the Minister", "registrar", "still-birth" and "superintendent registrar", see s41 post.

29 Correction of errors in registers

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

(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 or death 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.

[(4) Where—

(a) an error of fact or substance (other than an error relating to the cause of death) occurs in the information given by a coroner’s certificate concerning

a death touching which he has held an inquest; or

(b) such an error relating to the cause of death occurs in the information given by a coroner’s certificate issued under section 20(4) of the Coroners (Amendment) Act 1926 in the case of an inquest which was adjourned in compliance with section 20(1) of that Act (adjournment in cases of murder etc or at request of DPP) but was subsequently resumed]

the coroner, if satisfied by evidence on oath or statutory declaration that such an error exists, may certify under his hand to the officer having the custody of the register in which the information is entered the nature of the error and the true facts of the case as ascertained by him on that evidence, and the error may thereupon be corrected by that officer in the register by entering in the margin (without any alteration of the original entry) the facts as so certified by the coroner.

NOTES

The words omitted from sub-s (3) were repealed by the Registration of Births, Deaths and Marriage (Fees)

Order 1968, SI 1968/1242, art 4(1), Sch 2. The words in square brackets in sub-s (4) were substituted by the

Criminal Law Act 1977,s 65, Sch 12; the words omitted from that subsection were repealed by the Coroners

Act 1980,s l,Sch 2.

Register of live—births, etc. See ss 1(1) and 15 ante.

Any other Act. For provisions as to the marking of entries in the registers of births in the case of an adoption order and as to the cancellation of such markings, see the Adoption Act 1958, ss 21 (4)-.(6), 24(2)— (4), Vol 6, title Children; those provisions are repealed by the Adoption Act 1976, s 73(1), (3) Schs 2, 4,

 754 VOL 37 REGISTRATION CONCERNING THE INDIVIDUAL

Offences

35 Offences relating to registers

If any person commits any of the following offences, that is to say—

(a) if, being a registrar, he refuses or without reasonable cause omits to register any birth or death or particulars concerning which information has been tendered to him by a qualified informant and which he is required by or under this Act to register; or

(b) if, being a person having the custody of any register of births or register of deaths, he carelessly loses or injures the register or allows the register to be injured,

he shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].

NOTES

The reference to level 3 on the standard scale is substituted by virtue of the Criminal Justice Act 1982, ss 38.46, Vol 27, title Magistrates.

Summary conviction; standard scale. See the notes to s 8 ante; and see also, as to prosecution, s 38 post.

Definitions. For "birth’, "qualified informant" and "registrar", sees 41 post.

36 Penalties for failure to give information, etc

If any person commits any of the following offences, that is to say—

(a) if, being required by or under this Act to give information concerning any birth or death... or any dead body, he wilfully refuses to answer any question put to him by the registrar relating to the particulars required to be registered concerning the birth or death, or save as provided in this Act, fails to comply with any requirement of the registrar made thereunder;

(b) if he refuses or fails without reasonable excuse to give, deliver or send any certificate which he is required by this Act to give, deliver or send;

(c) if, being a parent and save as provided in this Act, he fails to give information concerning the birth of his child as required by this Act; or

(d) if, being a parent of a legitimated person... he fails to comply with any requirement of the Registrar General made under or by virtue of section fourteen of this Act; or

(e) if, being a person upon whom a duty to give information concerning a death is imposed by paragraph (a) of subsection (3) of section sixteen or seventeen of this Act, he fails to give that information and that information is not given,

he shall be liable on summary conviction to a fine not exceeding [level 1 on the standard scale].

NOTES

The words omitted from para (a) were repealed by the Children Act 1975, s 108(1)(b), Sch 4, Pt VI. The words omitted from para (d) were repealed by the Legitimation (Re-registration of Birth) Act 1957, s 1(2).

The reference to level 1 on the standard scale is substituted by virtue of the Criminal Justice Act 1982, ss 38, 46, Vol 27, title Magistrates. The maximum fine was previously increased to754 VOL 37 REGISTRATION CONCERNING THE INDIVIDUAL

Offences

35 Offences relating to registers

If any person commits any of the following offences, that is to say—

(a) if, being a registrar, he refuses or without reasonable cause omits to register any birth or death or particulars concerning which information has been tendered to him by a qualified informant and which he is required by or under this Act to register; or

(b) if, being a person having the custody of any register of births or register of deaths, he carelessly loses or injures the register or allows the register to be injured,

he shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale].

NOTES

The reference to level 3 on the standard scale is substituted by virtue of the Criminal Justice Act 1982, ss 38.46, Vol 27, title Magistrates.

Summary conviction; standard scale. See the notes to s 8 ante; and see also, as to prosecution, s 38 post.

Definitions. For "birth’, "qualified informant" and "registrar", sees 41 post.

36 Penalties for failure to give information, etc

If any person commits any of the following offences, that is to say—

(a) if, being required by or under this Act to give information concerning any birth or death... or any dead body, he wilfully refuses to answer any question put to him by the registrar relating to the particulars required to be registered concerning the birth or death, or save as provided in this Act, fails to comply with any requirement of the registrar made thereunder;

(b) if he refuses or fails without reasonable excuse to give, deliver or send any certificate which he is required by this Act to give, deliver or send;

(c) if, being a parent and save as provided in this Act, he fails to give information concerning the birth of his child as required by this Act; or

(d) if, being a parent of a legitimated person... he fails to comply with any requirement of the Registrar General made under or by virtue of section fourteen of this Act; or

(e) if, being a person upon whom a duty to give information concerning a death is imposed by paragraph (a) of subsection (3) of section sixteen or seventeen of this Act, he fails to give that information and that information is not given,

he shall be liable on summary conviction to a fine not exceeding [level 1 on the standard scale].

NOTES

The words omitted from para (a) were repealed by the Children Act 1975, s 108(1)(b), Sch 4, Pt VI. The words omitted from para (d) were repealed by the Legitimation (Re-registration of Birth) Act 1957, s 1(2).

The reference to level 1 on the standard scale is substituted by virtue of the Criminal Justice Act 1982, ss 38, 46, Vol 27, title Magistrates. The maximum fine was previously increased to 20 in the case of an offence under para (c) and 10 in any other case, by the CriminalJustice Act 1967,s92(1), Sch 3, Pt I.

General Note. Other penal provisions in addition to those specified in this section are contained in the Perjury Act 1911,s4, Vol 12, title Criminal Law.

Being required, etc. See as to births and new-born children, ss 2 et seq ante, and as to deaths and dead bodies, ss 16(3), 17(3), 19 ante.

Wilfully. This expression, in the words of Lord Russell of Killowen CJ, in R v Senior [18991 1 QB 283 at 290. 291, [1895—9] All ER Rep 511 at 514, "means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it". See also, in

in the case of an offence under para (c) and J10 in any other case, by the Criminal Justice Act 1967,s92(1), Sch 3, Pt I.

General Note. Other penal provisions in addition to those specified in this section are contained in the Perjury Act 1911,s4, Vol 12, title Criminal Law.

Being required, etc. See as to births and new-born children, ss 2 et seq ante, and as to deaths and dead bodies, ss 16(3), 17(3), 19 ante.

Wilfully. This expression, in the words of Lord Russell of Killowen CJ, in R v Senior [18991 1 QB 283 at 290. 291, [1895—9] All ER Rep 511 at 514, "means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it". See also, in

SEXUAL OFFENCES (AMENDMENT) ACT 1976 s 1 685

(a) the recognizance of that person shall be discharged; and

(b) the recognizance of any surety for him shall, as directed by the court, either be discharged or continue in force.

4. In this Schedule "the appointed day" means the day appointed under section 13(2) of this Act for it to come into force.

NOTES

Definitions. For "bail", sees 1 ante; for "court" and "vary", sees 2(2) ante. Note as to "the appointed

day", para 4 above.

Interpretation Act 1889, $ 38(2). Repealed by the Interpretation Act 1978, s 25(1), Sch 3, and

SEXUAL OFFENCES (AMENDMENT) ACT 1976

(1976 c 82)

ARRANGEMENT OF SECTIONS

Section Page

1 Meaning of "rape" etc . . . . . . . . . . . 685

2 Restrictions on evidence at trials for rape etc . . . . . . . 686

3 Application of s 2 to committal proceedings, courts-martial and summary trials. . 687

4 Anonymity of complainants in rape etc cases . . . . . . . 687

5 Provisions supplementary to s 4 . . . . . . . 690

7 Citation, interpretation, commencement and extent . . . . . 692

An Act to amend the law relating to rape [22 November 1976]

Northern Ireland. This Act applies to the extent provided by s 7(6) post.

1 Meaning of "rape" etc

(1) For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if—

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and

(b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it;

and references to rape in other enactments (including the following provisions of

this Act) shall be construed accordingly.

(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

NOTES

Rape. As to rape generally, see the notes to the Sexual Offences Act 1956, s 1 ante.

Unlawful sexual intercourse. In the definition of rape in sub-s (1) above, "unlawful" does not mean "outside marriage" since it is clearly unlawful to have sexual intercourse with any woman without her consent (R v R— (rape: marital exemption) [1991] 4 All ER 481, [1991] 3 WLR 767, HL). Historically, a man could not be guilty as a principal in the first degree of rape upon his wife because the consent to marital intercourse impliedly given in the contract of matrimony could not in general be retracted (R v Miller [1954] QB 282, [1954] 2 All ER 529), but this has been overruled by R v R— above on the ground that a husband and wife should now be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual

686 VOL 12 CRIMINAL LAW

intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to

intercourse in all circumstances, including sexual intercourse obtained only by force.

Consent. Sub-s (1) above is merely declaratory of the common law; accordingly, in proving a charge of rape, it is not necessary for the prosecution to prove that the consent of the victim was vitiated by force, the fear of force or fraud, but merely that the victim did not in fact consent (R v Olugboja [1981] 3 All ER 443, [1981] 3 WLR 585, CA). See, generally, as to consent in relation to rape, 11(1) Halsbury’s Laws (4th edn reissue) para 517; and note sub-s (2) above.

Reckless as to whether she consents to it. This follows the decision of the House of Lords in DPP v Morgan [1976] AC 182, [1975] 2 All ER 347, HL, where for the first time it was stated clearly and unambiguously that recklessness as to whether the woman was consenting or not was sufficient mens rea for a conviction of rape. A defendant is "reckless" if he is indifferent or regardless as to consent; see R vPigg[1982] 2 All ER

591, [1982] 1 WLR 762, CA, revsd on other grounds [1983] 1 All ER 56, [1982] 1 WLR 6, HL.

It is hereby declared, etc. Sub-s (2) also in effect confirms the law as laid down in DPP v Morgan above. In that case it was held that a genuine belief that the woman had consented to sexual intercourse must exonerate the accused, whether or not that belief was based on reasonable grounds, because the existence of such a belief was inconsistent with what the prosecution had to prove. But this did not mean that the reasonableness of the belief was irrelevant to the outcome of the case. In fact it was emphasised that the more reasonable were the grounds put forward for this belief, the more likely would a jury be to accept its genuineness, and the more unreasonable the grounds, the less likely would a jury be to accept that it was true.

Reasonable grounds are grounds which would be reasonable to a sober man; see R v Fo:heringham

(1989) 88Cr App Rep 206, [1988] Crim LR 846, CA.

Definitions. For "a rape offence" and "sexual intercourse", see s 7(2) post, and by virtue of that

subsection, for "man" and "woman", see the Sexual Offences Act 1956, s 46 ante; as to "jury", sees 7(3)

post.

Sexual Oifences Act 1956, s 1. See this title ante.

2 Restrictions on evidence at trials for rape etc

(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.

(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application thejudge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.

(3) In subsection (1) of this section "complainant" means a woman upon whom, in a charge for a rape offence to which the trial in question relates, it is alleged that

rape was committed, attempted or proposed.

(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.

NOTES

General Note. Before leave is given to cross-examine under this section, questions must be relevant by common law rules and to the case, and the judge must be satisfied that it is more likely than not that, if questions were allowed, it might reasonably lead the jury to take a different view of the complainant’s evidence; see R v Viola [1982] 3 All ER 73, [1982] 1 WLR 1138, CA.

The existence of other charges does not exclude this Section, although in deciding whether it is fair to permit cross-examination, the existence of other charges should be taken into account (R v C [1992] Crim LR 648, CA). This section may even be taken into account to restrict cross-examination in cases other than rape, where unlawful sexual intercourse is alleged (R v Funderburk [1990] 2 All ER 482, [1990] Crim LR 405, CA (unlawful sexual intercourse with 13 year old girl)).

See, as to cross-examination of the complainant about a sexual encounter which occurred after the

alleged rape, R v Redguard [1991] Crim LR 213, CA.

Application to committal proceedings, courts-martial and summary trials. See s 3 post.

Definitions. For "rape", see s 1 ante. For "a rape offence", see s 7(2) post, and by virtue of that

subsection, for "woman", seethe Sexual Offences Act 1956,s46 ante.

248 VOL 12 CRIMINAL LAW

11 Incest by a woman

(1) It is an offence for a woman of the age of sixteen or over to permit a man whom she knows to be her grandfather, father, brother or son to have sexual intercourse with her by her consent.

(2) In the foregoing subsection "brother" includes half-brother, and for the purposes of that subsection any expression importing a relationship between two people shall be taken to apply notwithstanding that the relationship is not traced through lawful wedlock.

NOTES

Offence. For further provisions as to offences and attempted offences under this section, see s 37, Sch 2, Pt II, para 15 post.

Woman. See, as to girls, s 46 post.

Age. See the note to s 5 ante.

Man. See, as to boys, s 46 post.

Knows. See the note to s 10 ante.

Grandfather, father, etc. See the note "Grand-daughter, daughter, ete" to s 10 ante.

Sexual intercourse. For meaning, see s 44 post.

Evidence; corroboration. See the notes to s 10 ante.

Special provisions relating to children and young persons. See the note to Sch 2 post.

Anonymity of victims. See the notes toss 2, 10 ante.

Unnatural Offences

12 Buggery

(1) It is felony for a person to commit buggery with another person or with an animal.

(2),(3)

Sub-ss (2). (3) were repealed by the Police and Criminal Evidence Act 1984,s 119(2), Sch 7, Pt V. Felony. See the first paragraph of the note to s 1 ante.

For further provisions as to offences and attempted offences under this section, see s 37, Sch 2, Pt I, para 3 post.

Another person. On what constitutes buggery with another person, ie, sodomy, see R v Wiseman (1718) Fortes Rep 91; R vJacobs (1817) Russ & Ry 331; R v Reekspear (1832) 1 Mood CC 342; and R i’ Barron [1914] 2KB 570 at 576.

Subject to the Sexual Offences Act 1967,s 1 post, consent affords no defence; and both agent and

patient (if consenting) are equally guilty; see 3 Co Inst 59; and see R vJellyman (1838) 8 C & P604;

and Statham i’ Statham [1929] P 131, CA. Until the enactment of the Sexual Offences Act 1993, s 1

post, the offence could not, it seems, be committed by a boy under fourteen; seeR v Tatam (1921) 15

Cr App Rep 132. Nevertheless a person not under fourteen could be convicted of the offence although

the agent was under fourteen; seeR vAllen (1849) 1 Den 364.

Animal. On what constitutes buggery with an animal, ie, bestiality, seeR v Cozins (1834) 6 C & P351; R u Brou’n (1889) 24 QBD 357; and R v Bourne (1952) 36Cr App Rep 125.

Corroboration. Here, too, thejury must be warned against accepting the uncorroborated evidence of an accomplice, and failure to do so will lead to the setting aside of the verdict; see R v Tale [1908] 2KB 680. See also R v Hartley [1941] 1 KB 5; and cfthe notes to s 10 ante and s 13 post.

Exception for homosexual acts between consenting adults in private. Except for certain cases of homosexual acts on merchant ships, buggery with another man is no longer an offence where committed between consenting persons over the age of twenty-one in private; see the Sexual Offences Act 1967,ss 1,2 post. See, however, as to procuring, S 4(1) of that Act post.

Time limit for prosecutions. In certain circumstances the time limit for prosecutions is twelve months; see the Sexual Offences Act 1967,s7(1), (2)(c) post.

Consent of Director of Public Prosecutions. Where either of the men concerned was under 21 at the time of the offence the consent of the Director of Public Prosecutions to the institution of proceedings is necessary; see the Sexual Offences Act 1967,s8 post.

Mentally disordered patients. For similar offences by men on the staff of a hospital. etc. against

242 VOL 12 CRIMINAL LAW

the Sexual Offences Act 1956, the Sexual Offences Act 1967 post, the Sexual Offences (Amendment) Act 1976 post and the 1992 Act may be cited together by this collective title.

Northern Ireland. This Act does not, in general, apply; sees 54(2) post.

Intercourse by force, intimidation, etc

(1) It is felony for a man to rape a woman.

(2) A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape.

Felony. All distinctions between felonies and misdenscanours were abolished by the Criminal Law Act 1967,s 1(1) post, and by s 1(2) of that Act the law and practice in relation to all offences are, in general, to be those previously applicable to misdemeanour. See also, in particular, s 12(5)(a) of that Act post concerning the construction of existing references to felony as references to an offence.

For further provisions as to offences and attempted offences under this section, see s 37, Sch 2, Pt I, para 1 post.

Man. See as to boys, s 46 post; but see the note "Rape" below.

Rape. For the purposes of this Act, "rape" is defined by the Sexual Offences (Amendment) Act l976,s 1(1) post.

Formerly a man could not be guilty as a principal in the first degree of rape upon his wife because the consent to marital Intercourse impliedly given in the contract of matrimony could not in general be retracted (R v Miller [1954] QB 282, [1954] 2 All ER 529). However this rule has been held inapplicable in modern times by the House of Lords in R v R (rape: marital exemption) [1991] 4 All ER 481, [1991] 3 WLR 767, HL, on the ground that a husband and wife should now be regarded as equal partners in marriage and that it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. Thus in the definition of rape ins 1(1) of the 1976 Act post, "unlawful" is to be treated as mere surplusage and not as meaning "outside marriage" since it is clearly unlawful to have sexual intercourse with any woman without her consent.

Even under former law, where a separation order contained a provision that the wife was no longer bound to cohabit with the husband, this operated to revoke the consent given at the time of the marriage, and the husband could in such a case be guilty of rape upon his wife; seeR v Clarke [1949] 2 All ER 448; and see also R v Miller above. There was authority for saying that the same applied in the case of an agreement to separate. particularly if it contained a non-molestation clause; see R v Miller above. Moreover, a husband could be guilty of aiding or abetting a rape upon his wife; seeR v Lord Audley, Earl Casteihaven’s Case (1631) Hut 115.

Until it was abolished by the Sexual Offences Act 1993, s 1 post, there was an irrebuttable presumption that a boy under fourteen was incapable of sexual Intercourse, and such a boy could not, therefore, be guilty of rape as a principal; see the General Note to that section. Such a boy could, however, be guilty of aiding or abetting a rape; seeR v Eldershau’ (1828) 3 C & P396 per Vaughan B. See also as to attempts by a boy under fourteen, R v Waite [1892] 2 QB 600, CCR, and R v Williams [189311 QB 320, CCR; and cfR s’Percy Dalton (London) Ltd [1949] LJR 1626.

Although under this section only a "man" can be guilty of rape, there is authority for saying that a woman can be guilty of aiding or abetting a rape; see R vRam and Ram (1893)17 Cox CC 609; and see also R v Lord Baltimore (1768) 1 Wm BI 648.

Although girls under sixteen are specially protected by ss 5 and 6 post, those sections do not bar a charge under this section in respect of offences upon girls under that age; see R v Dicken (1877) 14 Cox CC 8; and R v Ratcliffe (1882) 10 QBD 74. On the other hand, consent is a defence to a charge of rape even in the case of a girl under sixteen; see R v Harling [1938] 1 All ER 307, 26Cr App Rep 127, CCA.

Woman. See, as to girls. s 46 post.

Sexual intercourse. For meaning, see s 44 post.

Corroboration. In cases of rape and (unless expressly required by the Act) other sexual offences against a female, corroboration of the evidence of the prosecutrix is not in law necessary, but thejury must be warned of the danger of acting on her uncorroborated evidence; see especially R v Freebody (1935) 25 Cr App Rep 69; and see also R v Quinn (1911) 6Cr App Rep 269, and R v Trigg 119631 1

Extracts from the civil law code of The Netherlands.

H. Burgerlijk Wetboek Boek 1, Titel 4

schrift of een uittreksel slechts afgegeven indien de verzoeker aantoont dat hij bij die verkrijging een gerechtvaardigd belang heeft.

— 3. Het beredeneerde uittreksel vermeldt de plaats en datum van geboorte, de geslachtsnaam, de voornamen en de kunne van het kind. Op verlangen van de aanvrager worden bovendien de geslachtsnaam en de voornamen van de moeder en de vader van het kind vermeld; indien het een geadopteerde betreft, worden uitsluitend die der adoptanten vermeld,

— 4. Weigert de ambtenaar van de burgerlijke stand een volledig afschrift of een

uittreksel van een geboorteakte af te geven, dan verstrekt hij aan partijen een

schriftelijke opgave van de gronden voor zijn weigering. (* 1) (Overg.w. 6; B .W. 1: 23,

29; BesI. Burgerl. Stand 32; Rv. 838, 97O; Consul.w. 16; Tar. B.Z. 13 )

Art. 29. — 1. Aanvulling van een register van de burgerlijke stand met een daarin ontbrekende akte, doorhaling van een daarin ten onrechte voorkomende akte, of verbetering van een daarin voorkomende akte die onvolledig is of een misslagbevat, kan op verzoek van helanghebbenden of op vordering van het openbaar ministerie worden gelast door de rechtbank, binnen welker rechtsgebied de akte in de registers van de burgerlijke stand is of had moeten zijn opgenomen. De rechtbank kan bij haar beschikking tot verbetering van een akte, die onvolledig is of een misslag bevat, eveneens dezelfde verbetering gelasten ten aanzien van een akte betreffende dezelfde persoon of zijn afstammelingen. die buiten haar rechtsgebied in de registers van de burgerlijke stand is opgenomen. Hoger beroep van de beschikking moet binnen twee maanden na haar dagtekening worden ingesteld.

— 2. De griffier van bet college waarvoor de zaak laatstelijk aanhangig was, zendt een afschrift van de beschikking, zodra deze in kracht van gewijsde is gegaan, aan de ambtenaar van de burgerlijke stand van de gemeente, in welker registers de akte is of had moeten zijn opgenomen. Is deze gerneente opgeheven, dan zendt hij het afschrift aan de ambtenaar van de gemeente in wier archieven de registers van de burgerlijke stand van de opgeheven gemeente berusten.

— 3. De aanvulling, doorhaling of verbetering geschiedt doordat de ambtenaar een akte ter inschrijving van de beschikking in het register opneemt. Van de inschrijving van een beschikking tot doorhaling of verbetering wordt melding gemaakt aan de kant of de voet van de desbetreffende akte.

— 4. Kennelijke fouten. zoals schrijf- of spelfouten, kunnen ook zonder tussenkomst van de rechter worden verbeterd krachtens een bevel van de Officier van Justitie in bet arrondissement waar de akte in de registers van de burgerlijke stand is opgenomen, aan de ambtenaar onder wie de registers berusten. De Officier van Justitie kan bij een dergelijk bevel eveneens dezelfde verbetering gelasten ten aanzien van een akte betreffende dezelfde persoon of zijn afstammelingen, die in een ander arrondissement in de registers van de burgerfijke stand is opgenomen. (*2) (Overg.w. 6; B.W. l:4’,ól; BesI. Hurgerl. Stand 27; Rv. 3241suba2°,429av.;Sr. 361,466 v.;Sv.

511a; R.O. 56; Consul.w. 16a)

Art. 29a. — I. ledere Nederlander die de overtuiging heeft tot de andere kunne te behoren dan is vermeld in de akte van geboorte en lichamelijk aan bet verlangde geslacht is aangepast voor zover dit uit medisch of psychologisch oogpunt mogelijk en verantwoord is, kan de rechtbank, binnen welker rechtsgebied zijn woonplaats is gelegen, verzoeken wijziging van de vermelding van de kunne in de akte van geboorte te gelasten indien deze persoon:

a. niet gehuwd Is:

b. als mannelijk in de akte van geboorte vermeld staande. nimmer meet in staat zal zijn kinderen te verwekken. dan wel als vrouwelijk in de akte van geboorte vermeld staande. nimmer meer in staat zal zijn kinderen te baren.

— 2. Voor de toepassing van het bepaalde in het eerste lid en de artikelen 29b en 29c van dit bock wordt onder akte van geboorte mede verstaan een akte van inschrijving van een buiten Nederland opgemaakte akte van geboorte als bedoeld in artikel 23, cerste lid, van het Besluit Burgerlijke Stand.

— 3. Degene. die de Nederlandse nationaliteit niet bezit, kan een verzoek als bedoeld in het eerste lid doen. indien hij reeds gedurende een tijdvak van ten minste één jaar, onmiddeltijk voorafgaande aan bet verzoek, woonplaats in Nederland heeft en een rechtsgeldige verblijfstitel heeft en voor het overige voldoet aan de in bet eerste lid gestelde voorwaarden. Indien de akte van geboorte met hier te (ande in de registers van de burgerlijke stand is ingeschreven, wordt tevens de rechtbank verzocht de inschrijving te gefasten van de akte van geboorte in bet register van geboorten van de gemeente s-Gravenhage.

(‘1) Art. 28 is _gewijzigd bij de Wet van 13 mel 1987. Sth. 246 (i.w.tr. 1 sept. 1987).

(‘2) Art. 29 s gewijzigd bij de Wetten van 17 febr. 1972. Sib. 83. 13 mel 1987. Sib. 246 (i.w.Ir. 1 sept. 1987).

II Bock I - 6 Nederlandse Wetboeken Suppl. 224 (oktober 1990)

Boek I, Titel 5 II. Burgerlijk Wetboek

— 4. Dc Nederlander die geen woonplaats heeft in Nederland, kan het verzoek richten tot de rechtbank, binnen welker rechtsgebied de akte van geboorte in de

registers van de burgerlijke stand is ingeschreven.(nl)

Art. 29b. — I. Bij het verzoek moeten worden overgelegd een afschrift van de akte van geboorte alsmede een gezamenlijk ondertekende verklaring van bij algemene maatregel van bestuur(*2) aangewezen deskundigen, afgegeven ten hoogste zes maanden voor de datum van indiening van bet verzoek, waaruit blijkt:

a. de overtuiging van de verzoeker dat hij tot de andere kunne behoort dan in de akte van geboorte is vermeld en waarin is vervat bet oordeel van de daartoe bevoegde deskundige dat die overtuiging. gelet op de periode waarin de verzoeker als zodanig heeft geleefd en zo mogelijk op andere daarbij te vermelden feiten of omstandigheden, als van blijvende aard kan worden beschouwd;

b. of en zo ja. in hoeverre de verzoeker lichamelijk aan bet verlangde geslacht zodanig is aangepast als uit medisch of psychologisch oogpunt mogelijk en verantwoord is:

c. dat de verzoeker als mannelijk in de akte van geboorte vermeld staande, nimmer meer in staat zal zijn kinderen te verwekken, dan wel als vrouwelijk in de akte van geboorte vermeld staande, nimmer meer in staat zal zijn kinderen te baren.

— 2. In de verkiaring hehoeft het in bet eerste lid onder a bedoelde onderdeel niet te worden opgenomen indien de verzoeker lichamelijk reeds aan het verlangde geslacht is aangepast.(* 1)

Art. 29c. — 1. Het verzoek wordt toegewezen indien de rechtbank van oordeel is dat voldoende is komen vast te staan dat de verzoeker de overtuiging heeft tot de andere kunne te hehoren dan in de akte van geboorte is vermeld en dat deze ovcrtuiging als van blijvende aard kan worden beschouwd en de verzoeker voldoet aan dc in hct ccrstc lid van artikel 29a gestelde voorwaarden.

— 2. Indien de rechthank het verzoek om wijziging van de vermelding van de kunne inwilligt. kan zij desverzocht tevens de voornamen van de verzoeker wijzigen. (*1)

Art. 29d. — 1. De wijziging van de vermelding van de kunne heeft haar gevolgen, die uit dit boek voortvloeien. vanaf de dag waarop de ambtenaar van de burgerlijke stand een akte van inschrijving van de last tot wijziging in het register opneemt.

— 2. De wijziging van de vermelding van de kunne laat de op het in het eerste lid genoemde tijdstip bestaande familierechtelijke betrekkingen en de daaruit voortvloeiende op dit boek gegronde rechten. bevoegdheden en verplichtingen onverlet. De verzoeken in verband met artikel 157 en de vorderingen in verband met artikel 394 van dit boek kunnen ook worden ingesteld na het in het eerste lid genoemde tijdstip.(*1)

TITEL 5

Algemene bepaling

Art. 30. De wet beschouwt het huwelijk alleen in zijn burgerlijke betrekkingen.

(B.W. 1: 68: Sr. 449)

AFDELING I

Vereisten tot het aangaan van een huwelijk

Art. 31. — 1. Om een huwelijk te mogen aangaan moeten een man en een vrouw de leeftijd van achttien jaren hebben bereikt.

— 2. Het In het vorige lid vermelde huwelijksbeletsel bestaat niet wanneer zij die met elkander een huwelijk willen aangaan de leeftijd van zestien jaren hebben bereikt en de vrouw een verklaring van een arts overlegt dat zij zwanger is, dan wel haar kind reeds ter wereld heeft gebracht.

— 3. Onze Minister van Justitie kan om gewichtige redenen ontheffing verlenen van het in het eerste lid genoemde vereiste.(*3) (B.W. 1: 50 v.53,57,58 subf, 69,74.

Art. 32. Een huwelijk mag niet worden aangegaan, wanneer de geestvermogens van een partij zodanig zijn gestoord, dat deze niet in staat is haar wil te bepalen of de hetekenis van haar verklaring te begrijpen. (B.W. 1: 37 v., 50 v., 53, 57, 69, 73)

(*1) De art. 29a, 29/i. 29c en 29d zijn ingevoegd hi) de Wet van 24 april 1985, Stb, 243 (‘2) Zie KB. van 27 jnni 985. Stb. 371. opgenomen onder HA. nr, 30.

‘3) Art. 5! is gewijzigd hij dc Wetten van 30 aug. 1984. Stb. 404, 2! april 1993 Sib. 242 (i.wtr. 1 juli /993).

Nederlandse Wetboeken Supp!. 245 (juni 993) II Bock 1 - 7

 I I. Burgerlijk Wetboek Boek 1, Titel 5

Art. 33. De man kan tegelijkertijd slechts met een vrouw, de vrouw slechts met een man door het huwelijk verbonden zijn. (B.W. 1: 50 v.,52, 53, 57,58 sub d, 69,424; Sr. 237, 379)

Art. 34. — 1. De vrouw wier huwelijk door de dood is ontbonden mag niet binnen 306 dagen daarna een nieuw huwelijk aangaan.

— 2. Het in het voorgaande lid vermelde huwelijksbeletsel bestaat niet:

a. wanneer de vrouw de leeftijd van 52 jaren heeft bereikt;

b. wanneer zij na de dood van haar echtgenoot een kind ter wereld heeft gebracht;

c. wanneer zij een, ten minste dertig dagen na de dood van haar echtgenoot afgegeven, verkiaring van een bij algemene maatregel van bestuur(*1)aangewezen deskundige overlegt. dat zij op enig tijdstip na zijn dood met zwanger was;

d. wanneer zij en haar overleden echtgenoot waren gescheiden van tafel en bed of gedurende de Iaatste 306 dagen van het huwelijk gescheiden hebben geleefd. (B.W. 1:

50 v., 53, 57, 58 sub d, 72 sub a, 197 V.; Verdrag Huw. 2~)

Art. 35. — 1. Een minderjarige mag geen huwelijk aangaan zonder toestemming van de ouders die tot hem in familierechtelijke betrekking staan.

— 2. Zijn de geestvermogens van een ouder zodanig _gestoord, dat hij niet in staat is zijn wit te bepalen of de betekenis van zijn verkiaring te begrijpen dan is zijn toestemming niet vereist.

— 3. Een minderjarige, die onder voogdij staat, heeft bovendien de toestemming van zijn voogd nodig.(*2) (B.W. 1: 36, 39, 40, 47, 58 sub b, c, 75, 117, 222, 233; Cons. best. 1 sub a)

Art. 36. Voor zover een volgens het vorige artikel vereiste toestemming niet wordt verkregen, kan zij op verzoek van de minderjarige door die van de kantonrechter worden vervangen.( 2) (B.W. 1: 39, 47, 58 sub b, 75, 117)

Art. 37. — 1. Hij die wegens verkwisting of drankmisbruik onder curatele staat, mag geen huwelijk aangaan zonder de toestemming van zijn curator en zijn toeziende curator.

— 2. Voor zover die toestemming niet wordt verkregen, kan zij op verzoek van de onder curatele gestelde door toestemming van de kantonrechter worden vervangen. (B.W. 1: 39, 5f, 58 sub b, 75, 117, 278, 382)

Art. 38. Hij die wegens een geestelijke stoornis onder curatele staat, mag geen huwelijk aangaan zoncfer toestemming van de kantonrechter. (B.W. 1: 32, 39, 51,58 sub b, 75, 117, 378)

Art. 39. — I. De minderjarige of de onder curatele gestelde, die toestemming van dc kantonrechter tot bet aangaan van een huwelijk wenst te verkrijgen, wendt zich tot de kantonrechter van zijn woonplaats of, bij gebreke van woonplaats in Nederland, tot die van zijn werketijk verblijf hier te lande, of, bij gebreke ook daarvan, tot de kantonrechter te ‘s-Gravenhage.

— 2. De kantonrechter heslist na verhoor of behoorlijke oproeping van hen wier toestemming is vereist, of, in het geval van artikel 38 van dit bock, van de curator en de toeziende curator; hij is bevoegd ook bloed- en aanverwanten van de verzoeker te horen.

— 3. Tegen de beslissing van de kantonrechter kunnen uitsluitend de verzoeker zeif, en voorts zij wier oproeping tot verhoor in bet vorige lid is voorgeschreven of die als bloed- of aanverwanten zijn gehoord, in hoger beroep komen.

— 4. Heeft de kantonrechter de toestemming verleend, dan is de termijn van heroep veertien dagen en kan gedurende die termijn de beschikking niet worden ten

uitvoer gelegd. .

5. Hij die tegen een verleende toestemming opkomt, is verphcht dit binnen de termijn van heroep bij deurwaardersexploit te doen aanzeggen aan de ambtenaar of ambtenaren van de burgerlijke stand ten overstaan van wie het huwehjk kan worden voltrokken. Door dit te verzuimen verliest hij het recht om de nietigverklaring van bet huwelijk op grond van het ontbreken van zijn toestemming te vragen, indien de rechthank de heschikking van de kantonrechter vernietigt en het huwelijk reeds is voltrokken. (B.W. 1: 12. 35 v., 58 sub b, 63, 75, 117; Rv. 429a v.)

Art. 40. Vervallen. (Wet van I juli 1987, Sib. 334)

Art. 41. — 1. Een huwelijk mag niet worden gesloten tussen hen die elkander, hetzij van nature hetzij door adoptie. hetzij wettig hetzij onwettig, bestaan in de opgaande en in de nederdalende lijn of als broeder en zuster.

— 2. Onze Minister van Justitie kan om gewichtige redenen ontheffing van het verhod verlenen aan hen die broeder en zuster door adoptie zijn.(*3) (B.W. 1: 58)

(‘I) Zie KB. van I oct. 1969.Stb. 414. opgenomen onder I I A. nr. 6.

(2) De art. 35 en 36 zijn gewijzigd bij de Wet van 13 mei 1987. Sib. 246.

(*3) Art, 41 is gewijzigd bij de Wetten van 15 juni 1983 Sib. 290. 2! april 1993. Sib. 242 (i.w.tr. 1 juli 1993).

11 Boek 1 - 8 Nederlandse Wetboeken - Suppl. 245 (juni 1993)

Professor Gooren's Abstract on the Stria Terminalis.