0.1 In response to the request contained in the letter from the

Government of the United Kingdom submits the following

Observations on the admissibility and merits of the above

application.

0.2 Part I of the Observations concerns the relevant facts.

Part II states the relevant domestic law and practice. Part

Application. Part IV sets out the conclusions which the

Government requests the Commission to reach.

0.3 So far as material in the applications is concerned, whether it relates to matters or law or fact, no admission is made save as is expressly indicated in these Observations. The Government reserves the right to make further Observations in relation to these applications.

1.1 The Applicant is a British and Dutch Citizen, resident in Amsterdam. At birth in 1946, the Applicant was registered as being of the male sex. In 1992 the Applicant underwent gender reassignment surgery. Without prejudice to any of the legal issues in these proceedings, the United Kingdom will refer to the Applicant as "she'.

2.1 As the Court noted in Cossey v United Kingdom (Judgment of the Court, 27 September 1990, Series A, No. 184, paragraph

2.4 In Cossey (Judgment at paragraphs 18-22) the Court considered the provisions of domestic law relating to birth certificates. The Court explained

2.5 The Applicant alleges that there have been cases where an entry in the birth register has been amended by reason of gender reassignment surgery. She has produced three birth certificates as certified true copies of the amended entries in the birth register in relation to the sex of the individual concerned. The alterations to the birth register occurred in 1944 (date of birth 1915), 1951 (date of birth 1918) and 1960 (date of birth 1923). In each case, these amendments were carried out in accordance with the relevant provisions of the statute (or its predecessor), and in accordance with the general principle summarised in paragraphs 18-22 of the Court's Judgment in Cossey (see paragraph 2.4 above). In each case, the Registrar General was satisfied (on the medical evidence then available) that an error had been made at the time when the birth was registered, and that at the date of birth the child was not of the sex which had been registered. In none of these cases did the Registrar General allow an alteration of the birth register because gender reassignment surgery had changed the sex of the individual. The principles applied by the Registrar General have remained the same, both before and after the decision of the High Court in Corbett v Corbett [1971] P 83. Of course, medical knowledge has developed considerably in its ability to assist the Registrar General on what was the sex of the individual at the date of birth, and whether an entry in the birth register wrongly recorded the sex of the person at that date. The United Kingdom is unable to supply detailed information about the three people whose entries in the birth register have been relied upon by the Applicant. That information is confidential and the individuals concerned have not consented to disclosure. However, there is material in the public domain relating to Roberta Cowell and Georgina Somerset. The relevant newspaper cuttings are contained in Annex A to this Application. Reports of legal proceedings in newspapers in 1969, and a report from Woman's Mirror in 1966, state that Roberta Cowell was genetically female, and her sex was wrongly registered as male at birth. A report from Chat magazine in 1988 states that Mrs Somerset was not a transsexual, but had been wrongly registered as a boy at birth.

2.6 The Applicant complains that for the purposes of the law of rape, she would be regarded as a man. This was correct under previously existing law see R v Tan [1983] QB 1053, 1063H-1064E (Court of Appeal) However, section 142 of the Criminal Justice and Public Order Act 1994 now defines "rape" as "vaginal or anal intercourse with a person", and so the offence is not dependent on whether the victim is a man or is a woman. In any event, an assault on the Applicant, whether of a sexual nature or otherwise, would be unlawful and would receive a punishment appropriate to the facts of the case. Whether the Applicant is regarded by English law as a man or a woman, any person who carried out a serious sexual assault on the Applicant would normally be sentenced to a lengthy period of imprisonment.

2.7 The Applicant complains that if she were sentenced to a term of imprisonment, she would be held in a prison for men. The prison rules require male and female prisoners to be detained separately. In some such cases, post-operative transsexuals have been placed in a prison catering for the sex, which accords with their new social status. Consideration is given to the individual circumstances of each case of a transsexual sent to prison in order to determine what would be most appropriate.

2.8 The Applicant complains that she is treated as a man for the purposes of social security and pensions law, and so she will have no right to a State pension until the age of 65 (and not 60, as is the case for women). This is correct, applying the principles stated by the case law. See the Judgment of the Court in Cossey at paragraph 26 referring to social security cases. The social security benefits to which the Applicant is entitled are those provided under English law, and/or the law of the Netherlands, by reference to the individual national legislation, or in conjunction with Council Regulation 1408/71/E~C (co-ordinating social security regulations for migrant workers)

Undergone gender reassignment surgery, then there may be circumstances in which it is necessary for another person to know about a former identity so that the other person can check whether the individual has a criminal record, or whether there is other relevant information recorded about that individual. In order for a company to decide whether to enter into a contract of insurance or a pension scheme with the Applicant, it is appropriate for the company to have the opportunity to check the Applicant's history, including her medical history, whether under her present name or under any former name. If the Applicant does not

3.1 In the letter dated 5 September 1994, the Secretary to the Commission invited the Government particularly to deal with the following questions

3.2 The Observations of the United Kingdom set out below will focus on the questions put by the Commission, but will also briefly address the other matters raised by the Applicant.

3.3 Article 8 of the Convention provides

3.4 Article 8 does not require a Contracting State to recognise for legal purposes the new sexual identity of a person who has had gender reassignment surgery, even though a transsexual may be socially accepted under that new sexual identity. The Court so stated in Cossey v United Kingdom (Judgment of the Court, 27 September 1990, Series A, No.

184, paragraph 40) and it repeated this conclusion in paragraphs 46-48 of the Judgment in B v France (Judgment of the Court, 25 March 1992, Series A₁ No. 232). therefore, the Applicant has no general right to legal recognition as a woman. In this context, Contracting States enjoy a wide margin of appreciation. As the Court stated in B v France (Judgment at paragraph 48)

3.12 Article 14 of the Convention states

3.15 The Court held in Cossey (Judgment at paragraphs 43-48), following its earlier judgment in the case of Rees v United Kingdom (Judgment o~ the Court 17 October 1986, Series A, No. 106 at paragraphs 49-50), that it was not a breach of Article 12 for English law to prevent a person who has had gender reassignment surgery from marrying a person of the sex which he or she had at birth. In X. Y and Z v United Kingdom (Application No. 21830/93, decision of 1 December 1994), the Commission held to be inadmissible as manifestly ill-founded a claim that Article 12 conferred a right for a transsexual to marry a person of the same sex as the transsexual had at birth.

3.16 Article 3 of the Convention states

3.17 The United Kingdom submits that if (for the reasons set out above) the treatment of the Applicant is not in breach of her rights under Article 8 of the Convention, such treatment cannot infringe Article 3 of the Convention. In any event, the United Kingdom disputes that any mental distress suffered by the Applicant even approaches the levels at which Article 3 of the Convention is applicable. The United Kingdom draws attention to the Report of the Commission in B v France (6 September 1990, at paragraphs 76-87).