For the Government:

Ms. DICKSON, Agent, Foreign and Commonwealth Office

Mr. PANNICK QC, Counsel

Mr. SINGH, Counsel

Ms. JENN, Adviser, Department of Health

Mr. JENKINS, Adviser, Office of Population, Censuses and Surveys

For the applicant:

Mr. DUFFY QC, Counsel

Mr. McFARLANE, Counsel

Mr. HElM, Counsel

Mr. BRANDMAN, Solicitor

Professor GOOREN, Adviser

Members of the Commission:

MM. L. LOUCAIDES

Commission Secretariat:

Mr. H.C. KRUGER, Secretary to the Commission

Mrs. K. REID

Mr. V. SOLOVEYCHIK VR22985/93 VR23390/94

The hearing was opened at 9.10 am by Mr Trechsel,

President of the Commission

THE PRESIDENT: The hearing is open on the admissibility and merits in Applications No.22985/93, Kristina Sheffield V. United Kingdom and Application No.23390/94, Rachel Horsham V. United Kingdom.

I welcome the representatives of the parties. For the Government: the Agent, Ms Dickson; Counsel, Mr Pannick QC and Mr Singh, and as advisers Ms Jenn from the Department of Health and Mr Jenkins from the Office of Population, Censuses and Surveys. For the applicant: Counsel, Mr Duffy QC, Mr McFarlane and Mr Heim; solicitor, Mr Brandman; and Professor Gooren, adviser. Both applicants are present and I welcome Miss Sheffield and Miss Horsham.

I give the floor to Mr Pannick

Mr PANNICK: Thank you, Mr President. May I deal first with Kristina Sheffield's case.

At birth in 1946 the applicant was registered as being of the male sex. Thereafter, the applicant underwent gender re-assignment surgery and treatment.

The Commission has invited us to comment on a number of specific issues which arise under Articles 8,12 and 14 of the Convention. I will address each of them in turn.

We suggest that the jurisprudence of the Court establishes three relevant principles in the context of Article 8.

First, Contracting States enjoy a wide margin of appreciation in dealing with the complex issues raised by transsexualism. The Commission recently so decided in its Report dated 27 June 1995 in the case of X, Y and Z V the United Kingdom, at paragraph 62. As the Commission there explained, this is because there is little common ground within Contracting States in dealing with the difficult issues which transsexualism raises, and the law is very much in a transitional state.

The second principle is that, for the same reasons, Article 8 does not require a Contracting State generally to recognise for legal purposes the new sexual identity of a person who has had gender re-assignment surgery, even though a transsexual may be socially accepted under that new sexual identity. The Court so stated in Cossey and it repeated this conclusion in paragraphs 46-48 of the judgement in B V. France in 1992. Therefore, the applicant has no general right to legal recognition as a woman.

The third principle is that there may, however, be circumstances in which the refusal to grant legal recognition to the new sexual identity of a transsexual may result in a breach of Article 8. Whether the State's treatment of a transsexual amounts to a breach of any positive obligation of respect under Article 8 will depend on the application of the fair balance between the general interests of the community and the interests of the individual. This, in turn, will depend on the nature and the degree of detriment suffered by that individual.

In Cossey the Court concluded that there was no breach of Article 8 by reason of the refusal to issue the applicant with a birth certificate stating her sex as female after

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VR 23390/94 gender re-assignment surgery. By contrast, in B V. France the Court concluded that there had been a denial of respect for private life, in particular because the applicant there was refused permission to change her forename. The Court focused its attention on the practical consequences. The applicant in B was obliged to have all of her identity documents, her cheque books and her official correspondence in the name of Norbert, even though she was a post-operative transsexual who was socially accepted as a female.

In our submission, the scientific and legal position remains as stated by the Court in paragraph 48 of the judgement in B. The Court there explained that despite the work carried out by experts there remained uncertainty as to the essential nature of transsexualism. The legal problems posed are complex. They raise biological, psychological and moral issues, and there is not yet any sufficiently broad consensus between the member States of the Council of Europe. It cannot seriously be suggested that in the four years since the Court gave judgement in B the difficulties which concerned the Court have been removed.

The difficulties in this area were recognised at the Council of Europe's 23rd Colloquy on Transsexualism, Medicine and Law in 1993. The report of the proceedings has been published by the Council of Europe.

We direct the attention of the Commission to certain pages which we have sent to the Secretariat. First, at page 30, Dr. Russell Reid of Hillingdon Hospital in England explained that:

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Second, at page 203, Professor Doek of Amsterdam stated that transsexualism remains an enigmatic problem. He added, at page 209, that

He concluded (at page 210) that ' much still has to be learnt'.

Third, at page 239, Mr Hondius of the International Commission on Civil Status referred to the "lack of legal harmonisation between countries'.

The applicant makes a number of specific complaints under Article 8.

First, she complains that her birth certificate records her sex as male and she cannot now have that record altered. But this complaint is a repetition of the unsuccessful complaint made in the Cossey case. The complaint in Cossey failed because the Court accepted that Article 8 did not require the United Kingdom to alter the basis of its system for the registration of births, which was designed as a record of historical fact as at the date of birth and which is not a system of documentation for recording current civil status. Unlike the position in B. V. France, Miss Cossey and the present applicant are fully entitled to change their names if they wish, and the Court so recorded in paragraph 16 in Cossey. The applicant here did change her name after her gender re-assignment surgery. The change of name was recorded on her passport and on her driving licence.

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Second, the applicant complains that the Department of Employment files refer to her as "unemployable". In fact, as explained in the letter exhibited to our written observations at Annex A, this description derives from the applicant's own statements on her form claiming unemployment benefit and in interviews at the Job Centre. When the matter was drawn to the attention of the Employment Service, the description was removed from the computer record. As our written observations explain at paragraph 1.3(1), the Employment Service does not itself require clients to state whether they are transsexual. It will normally accept and respect the wishes of the client as to the sex by which he or she is to be known and treated.

Similarly, the practice of the Department of Social Security is to issue a transsexual with a new national insurance number card in the new name of the transsexual, to address a transsexual in the style and in the name which the transsexual adopts, and to maintain the confidentiality of the records of transsexuals, in particular by not disclosing to employers the history of the sexual identity of the transsexual. That is all explained in Appendix 3 to the applicant's reply.

The third matter which has concerned the applicant is that her original sex was recorded on police computer files and that she was required to state her sex when seeking to ascertain what was recorded on those files. But if a person has changed their name or their sexual Status they may not be correctly identified unless the former name and sex are stated.

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The fourth specific matter which has concerned the applicant is that she has been asked to disclose her original sex when offering to act as a surety in court and when entering into contracts for insurance. But in order for a court to decide whether to accept the applicant as a surety for a defendant in criminal proceedings, it is appropriate that a check be made as to whether the applicant has a criminal record, either under her present name or under any former name. It may also be appropriate for a company offering insurance or a pension to know about an applicant's former identity, for example, in relation to medical matters, life expectancy, driving record, or criminal record, each of which may be relevant to the commercial decision of the company. If the applicant does not wish to deal with a company offering insurance or pensions on such terms, that is a matter between the applicant and the company.

The fifth matter of concern to the applicant is that she says she is at risk of abuse and violence. There is no specific decision of which the applicant complains in this respect. This is not surprising because the applicant enjoys the same legal protection against abuse or violence as anyone else in the United Kingdom, both by way of civil law remedies and criminal law sanctions.

Finally, under Article 8, she complains that employers may discriminate against her. But in the United Kingdom, she has the same protection against unfair dismissal as any other employee. As to an employer's refusal to employ her, there is no law in the United Kingdom which limits the discretion of a private employer on who to employ, except to prohibit discrimination on grounds of race or sex or some other

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prohibited ground. But in any event, the applicant does not claim to be a victim in this respect. She has not complained that a particular employer has refused her a job because of her status as a transsexual.

Our submission is that each of these complaints must fail in the light of the recognition in Cossey and in B that a Contracting State has no obligation to recognise the new sexual identity of a post-operative transsexual. Th any event, we submit that none of these complaints establishes the substantial degree of distress, humiliation and stigmatisation which was found to exist in B. This applicant lives her life under her new sexual identity. Her passport, driving licence, medical cards, tax codings, national insurance number card, are all in her female name.

In relation to Article 12 of the Convention, the applicant complains that she is unable to marry a man. The position under the Convention is very clear. The Court held in Cossey (at paras. 43-48), following its earlier judgement in Rees, that it is 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 prior to that surgery. The Commission has recently 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 prior to gender re-assignment surgery. That was the decision dated 1 December 1994 in X, Y and Z V. United Kingdom (Application No.21830/93).

The present case raises the same complaint under Article 12. It too must be inadmissible as manifestly ill-founded.

Finally, the Commission has asked us questions under Article 14. We are invited to comment on the applicant's complaints that annotations have been made to the birth register in three other cases. We have explained the position in paragraph 2.5 of our written observations.

In each case the amendments made were in accordance with the principle that the register of births is an historical record. 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 by reference to the relevant biological criteria of assessment, that is the person's chromosomes, genitals and gonads. In none of the three cases did the Registrar General allow an alteration of the birth register because gender re-assignment surgery had changed the sex of the individual.

So there has been no discrimination against the applicant contrary to Article 14. The same legal principles have been applied to her as in those other cases. She does not suggest that her sex was wrongly recorded at the time of birth by reference to her chromosomes, genitals and gonads.

In relation to the other aspects of the Article 14 complaint, we submit that essentially the same issues arise under Article 14 as under Article 8 read on its own. That is because the United Kingdom has no obligation to recognise the result of the applicant's gender re-assignment surgery in the contexts of which complaint is made, in particular when the applicant has not suffered any substantial distress or humiliation

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as a result As the Court stated in Cossey at paragraph 41, the notion of a fair balance under Article 8 already takes account of factors that might otherwise need to be considered under Article 14.

The applicant may seek to rely on the Opinion of Advocate General Tesauro to the European Court of Justice in P V S and Cornwall County Council (an opinion dated 14 December 1995). That case concerned a claim that dismissal from employment because of transsexualism was sex discrimination contrary to Directive 76/207. We point out that the Advocate General was dealing only with sex discrimination in employment, not with other issues raised by transsexualism. Moreover, the Advocate General acknowledged (at paragraph 24 of his Opinion) that he was asking the European Court of Justice to make a ^"courageous" and "bold" decision. Those were his words. The European Commission made submissions to contrary effect. No conclusions can be reached about the application of European Union law until the judgement of the European Court of Justice is delivered, and it is awaited.

The questions put to us by the Commission in advance of this hearing did not ask us to address Article 13 of the Convention. We have dealt with that subject in our written observations in this case.

Mr President, that is what I want to say in relation to the case of Miss Sheffield. I now turn, more briefly, to the case of Miss Horsham.

At birth in 1946 the applicant was registered as being of the male sex and in 1992 the applicant underwent gender re-assignment surgery.

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This application raises many of the same issues as' the application by Miss Sheffield.

As to the specific complaints made by this applicant I have the following brief comments. There is the complaint about birth certificates. I have dealt with that in the context of the Sheffield case.

The applicant secondly complains under Article 8 that the criminal law does not adequately protect her. She says that it would not be a criminal offence to rape her. That is incorrect. Section 142 of the Criminal Justice and Public Order Act 1994 defines rape in terms of "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. This complaint is, of course, hypothetical in the extreme, and so the applicant is not a victim for the purposes of the Convention.

That is also true of the next complaint under Article 8. This complaint is that if the applicant were sentenced to a term of imprisonment, she would be held in a prison for men. In fact, as we explain in paragraph 2.7 of the written observations, consideration is given to the individual circumstances of each case of a transsexual sent to prison in order to determine what would be the most appropriate place for them to serve their sentence. The applicant cannot complain about this in the abstract.

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The applicant complains under Article 8 about the fact that she is treated as a man for the purposes of social security and pensions law. Th our submission, the concept of private life in Article 8 does not extend to the substantive criteria for receipt of social benefits, such as social security and pensions. In any event, in the light of the Court's decision in Cossey, the United Kingdom has no duty to recognise the applicant's new sexual identity for the purpose of the substantive criteria for the award of social security and pension benefits.

Finally, the applicant complains under Article 8 that she has no legal right to conceal information about her previous sex when entering into an insurance policy or joining a pension scheme. I have dealt with that already in relation to Miss Sheffield's case.

There is nothing additional in Miss Horsham's case under Articles 12 and 14 which I wish to add.

For the reasons advanced this morning and for the reasons set out in our written observations, we invite the Commission to find that each of these applications is inadmissible or to reject them on their merits.

Thank you.

THE PRESIDENT: Thank you, Mr Pannick.

I give the floor to Mr Duffy.

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Mr DUFFY: Like Mr Pannick, I will first address the general issues in the Context of the case of Kristina Sheffield and then turn to the issues that arise in the case of Rachel Horsham.

A theme in Mr Pannick's address to you this morning is that there was no substantial, no real distress or suffering that our applicants have endured. The members of the Commission have read the affidavit of Kristina Sheffield. In that affidavit she speaks of the profound hurt and distress she suffers as a result of English law's insistence on treating her as a man, despite her gender re-assignment surgery undergone ten years ago whose necessity all recognised: it was paid for through the National Health Service and performed in an English hospital.

For all the main purposes - employment, social security - she is treated as a man. This causes her great distress and sorrow. Mr Pannick referred to the incident that occurred in a courtroom, but just imagine for a moment how Kristina Sheffield must have felt when questioned in open court about the discrepancy between her female appearance and gender and her legal gender under current British law and practice. It must have been awful. No wonder she tells you that words are inadequate to describe the hurt and distress she felt. No wonder that she urges you to understand how important this case is to her.

The formal admissibility requirements are plainly met in Kristina Sheffield's case. She is complaining of a continuing situation which directly and gravely affects her rights under the Convention, particularly her right to respect for privacy. The

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seriousness of the problems and distress facing transsexuals has been recognised by the Court in the cases it has decided.

The only possible ground for rejecting the case today is if you find the issues manifestly ill founded. That, of course, is what the Government urge you to do. Mr Pannick essentially says that the matter was settled in Rees and Cossey and confirmed by the Court in B v. France. He says you should not reconsider the matter and that there is no basis for doing so. Of course, we disagree profoundly. Let me explain why.

Let me begin with some observations about the Court's case law. Ten years ago in Rees the Court decided by 12 to three, against the Commission's view, that the United Kingdom's treatment of transsexuals violated the Convention. The Court however added that it was conscious of how serious the problems and distress caused to transsexuals are and recalled the principle that the Convention has always to be interpreted and applied in the light of current circumstances.

The Rees ruling on Article 8 concluded at paragraph 47 with the statement that the United Kingdom should keep the need for appropriate legal measures under review, having regard particularly to scientific and societal developments. Later, in Cossey, Judges Palm, Foighel and Pekkanen described that paragraph 47 of Rees as unusual but important and relevant, as had been the earlier remark at paragraph 37 of Rees, that the law was in a transitional stage. Mr Pannick invites you to find that ten years on, things are still transitional and that nothing has changed. But those statements in Rees were

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very exceptional. When a violation of the Convention is found, the Court invariably only declares that and, except for just satisfaction under Article 50, the Court leaves the State to determine how to implement its ruling.

I know of only one other instance where the Court has told the State that it should - language of obligation - keep the matter under review when ruling that the Convention has been complied with, and that other instance is the case of Cossey in which eight judges were persuaded that Rees should be reversed. The Government succeeded on Article 8 only by the narrowest of margins in the 1990 Cossey ruling.

Today, I ask that the Commission give weight to how divided the Court was in 1990 and to how rapidly the views of its members had evolved since Rees. Less than four years separate the three dissenters in Rees from the eight in Cossey, representing the difference between a strong majority in support of the respondent and the barest of wins. If you accept Kristina Sheffield's case today and the matter goes to the Court it will do so after eight years, double the time that separated the Rees and Cossey judgements. What was barely acceptable in Cossey right at the beginning of this decade, will that still be acceptable at its end? I submit that must be an admissible issue which should be examined.

I also draw attention to the reasoning of the judges who dissented in Cossey. Judges MacDonald and Spielmann were of the view that there had been clear developments in many of the Council of Europe States. Those judges described the Court's call for the respondent to keep the matter under review as "meagre consolation

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for the individuals concerned", and similar views were expressed by all the other dissenting judges. Three judges who had taken part in both Rees and Cossey stated their understanding that the earlier judgement would not be the last word and that the Court had reserved its right to reconsider the matter. You will also note that there was no new scientific evidence before the Court in Cossey. Today there is new evidence, which we will come to shortly but before looking at that, let me conclude considering the relevant case-law of the Court.

I turn to B V. France, and to paragraph 48 in particular, on which the Commission has asked for comments. In B the applicant had urged the Court to reverse the position it had taken barely 18 months earlier in Cossey. I ask the Commission to take account of the timing of B when considering what weight can properly be derived from it for your decision today, nearly four years after the B ruling and well over five years since that very narrow decision of the Court in Cossey.

Paragraph 48 of B begins with the statement by the Court that it is undeniable that attitudes have changed, undeniable that science has progressed and increasing importance attached to the problems of transsexualism. B had asserted the existence of "new scientific, legal and social elements" which, she said, meant there was a general obligation on Contracting States to recognise the psychosocial sex of transsexuals (paragraph 45).

With regard to the evidence put before it by B, the Court said that some uncertainty remained. There was still insufficient material to persuade the Court but,

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read as a whole and with the other relevant rulings, in my submission the position can be summarised somewhat differently from the way Mr Pannick sought to put it to you this morning. He gave you three propositions; I would like to give you four.

My first proposition is that there is an undeniable evolution in what is acceptable under the Convention in terms of the legal status and rec9gnition of transsexuals. My second proposition is that what was permitted even in the recent past may not be now or in the near future. My third proposition is that States which fail to recognise the legal status of transsexuals should keep such measures under review. My fourth proposition is that the Court and the Commission are conscious that the seriousness of the problems affecting transsexuals and the distress they suffer. The distress cannot be characterised as insubstantial and unimportant.

There are two other factors which may be of relevance when assessing the ruling in B. First, the Court was able, by a large majority of 16 to 5 to find France in violation of Article 8 without having to revisit what it had said in Rees and in Cossey. Any court will seek to decide the case before it on reasoning which commands broad support instead of revisiting controversial issues, if possible. That is just natural.

Secondly, there was also an important principle of procedural fairness under the

Convention at play in B V. France. It would have been highly controversial for the

Court to have reversed its Rees and Cossey rulings which concern the United Kingdom

in its B ruling which concerned France. To have done so would have denied the United

Kingdom its right to be heard properly on issues which specifically concern it. Such a

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course would be utterly unprecedented under the Convention and, in my submission, contrary to the scheme of the Convention's machinery, which requires that the affected State be afforded due opportunity to put its case.

Given all these points, the stance taken by the Court in paragraph 48 of B is surprising. It provides little, if any, guidance, I submit, to what the Court will if you declare Kristina Sheffield's case admissible today and the case goes to the for judgement, perhaps in 1998 or 1999.

In opening, Mr Pannick made much of the submission that there was a wide margin of appreciation. But in their book, published at the end of 1995, Professor Harris, Michael O'Boyle and Cohn Warbrick wrote of the Court's case-law dealing with transsexuals in the United Kingdom:

The authors went on to contrast the Rees/Cossey approach with that taken by the Court in Gaskin. Their assessment supports our submission that the Court's position could well change and that Kristina Sheffield's case should be retained for further examination.

I turn now from the case-law to certain issues of law and fact which, we submit, call out for an examination on the merits. Let me survey a number of points and issues.

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Kristina Sheffield has told of the embarrassment and distress caused to her by persons for whom the respondent is answerable. It just is not good enough to say that she does not suffer substantial distress. She has told you she does and you only have to imagine what it must be like. Imagine the prosecutor asking the questions in open court about her transsexualism in the context of standing surety in criminal proceedings. Then imagine the administrative practice which confronted her with the invidious choice of either disclosing her transsexualism or not having access to check her police files. Mr Pannick refers to administrative convenience; he refers to the need to check back. That could be dealt with under other systems. It is not necessary to put transsexuals through what they go through in England.

With regard to the correction of birth certificates, we have put evidence before you of other cases where this has occurred. The respondent states that these cases are different to that of Kristina Sheffield or Rachel Horsham. We have made the point in written observations of how incredible it is to imagine that these persons - and their certificates were corrected when they were in their 30s or 40s - could have served as they did, in the forces, in the navy, for years with rigorous medicals and yet genital abnormality was not noticed. Annex 2 to our reply reproduces the talk given in 1972 to the Medico-Legal Society by the judge who decided the key case of Corbett V Corbett. The discussion afterwards indicates that 25 years ago, the treatment of transsexuals appears to have been more flexible and humane than today.

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We wrote to relevant officials of the respondent seeking information but we have not been given a detailed response. Nor have you. Mr Pannick simply asserts that the cases are different. The respondent has these records. We have been thwarted in our efforts to research the position further in order to establish whether or not the prima facie case of discrimination that we have shown is borne out. But I submit that enough exists today to show that this issue calls for further examination.

Appendix 4 to our written observations supplied the October 1994 High Court of New Zealand decision which includes an impressive review of the Commonwealth and common law decisions and shows that Corbett V. Corbett is increasingly Out of date particularly when, as in the United Kingdom, it has been extended by administrative practice beyond marriage so that it is now the sole test for questions of legal gender. That is the position: it is the sole legal test.

In Rees and Cossey the Court stressed - and we have already seen - the need for legal measures affecting transsexuals to be kept under review. What has happened? We are now ten years on from the Rees case. There is absolutely no evidence that any review has occurred. There has been no parliamentary debate, no decision on the appropriate measures for transsexual gender issues and privacy protection in the United Kingdom over the past decade or, indeed, for many years before that. Events have vindicated the dissenting judges in Cossey - and they were many - who described the Court's declaration of the need for review by the United Kingdom as meagre

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consolation". Kristina Sheffield continues to suffer. She and others need and deserve your interest and help.

The written reply referred to the 23rd European Law Colloquy and supplied some of the papers from it. The respondent seeks to dismiss reliance on the Colloquy report by quotes from five pages out of more than 240. But the whole thrust of that Colloquy showed how rapidly legal and medical matters were developing. One of the closing speeches was given by Margaret Killerby, head of a responsible division here in the Council of Europe. She said at page 241 that "it is clear that rapid medical progress is being made" and that there were difficult legal problems to be solved: "Even if only a small number of persons are involved, their problems may be very fundamental'. So they are. They are fundamental for Kristina. It is not an insubstantial matter. There are real issues here. Speaking just a year after B V. France, Mrs Killerby expressed no doubt that the Commission and Court would have to reconsider transsexualism. We agree with her comments which are far more representative of the report as a whole than the passages that have been put to you by the respondent.

On legal developments, as Mr Pannick anticipated, I do refer to the Opinion of the experienced Advocate General Tesauro in the European Court of Justice case of P V. S and Cornwall County Council, delivered just a month ago. In issue is whether transsexuals are protected from dismissal and discrimination at work under the Equal Treatment Directive because such action constitutes gender-based discrimination.

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Mr Pannick urges you to consider this as a case just dealing with equal access to work and discrimination at work. He urges you not to take much notice of it because it is a provisional opinion of an advocate general and the European Court has yet to rule. I refer particularly to the Opinion because it deals not just with the issue of the Equal Treatment Directive but because of the important analysis it contains both of legal developments in recent years and also of issues of principle, which go to the heart of this case, on the appropriate scope of the margin of appreciation in respect of the serious interference's that occur here, given legal developments, scientific and societal changes.

Let me first deal with how the Advocate General summarised recent legal developments in European States. Paragraph 10 of his Opinion describes the clear tendency towards ever-wider recognition of transsexuality, both by legislation and judicial decision. Sex change surgery, the Advocate General notes, is lawful in nearly all EC States as, indeed, it was for Kristina Sheffield. Lawful surgery, he says, "usually goes hand in hand with authorisation, again subject to differing rules, to rectify the sex recorded in the register of civil status and with all the ensuing consequences". He says that how this is achieved varies from State to State. Some do it by legislation, some by judicial decision, some by administrative practice. But the point is, most do it one way or the other. Sadly, for Kristina Sheffield, the United Kingdom does none of these. She has had to endure being legally male for ten years since her operation and will face this plight for the indefinite future unless you declare this case admissible today.

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At paragraph 17 of his Opinion, the Advocate General turned away from legal developments towards issues of principle that flowed from them. He described as "obsolete":

He was saying there that it really is gender-based discrimination to treat someone who is unfortunate enough to fall outside the traditional man/woman divide disfavourably because that is their position.

At paragraph 24; Advocate General Tesauro, in addition to urging the court to be "courageous", expressed:

reasons that discrimination against transsexuals is correctly to be analysed as a form of gender-based discrimination - and we submit it should be so analysed - then a reconsideration of the Court's case-law is needed. Since Abdulaziz back in 1985, it has been accepted that:

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(paragraph 78 of that judgement).

Even back in 1990 eight of the judges in Cossey were of the view that the "wide margin of appreciation" invoked before you today should not be applied to measures denying recognition to transsexuals' gender and civil status. Judges MacDonald and Spielmann put it well:

You will recall, because of the seriousness of the current law's impact upon transsexuals and on grounds of consistency with the approach taken in other cases involving serious privacy issues, Professor Harris, Mr O'Boyle and Mr Warbrick also consider that there is a serious case for revisiting the Court's decisions and for exercising a closer review over the measures against recognition of transsexuals from which Kristina Sheffield has suffered for ten years - again, in my submission, serious issues of law which deserve to be retained for an examination on the merits.

Let me now turn to medical and scientific developments. In paragraph 40 of Cossey the Court stated that it had been informed of no significant scientific developments since Rees, less than four years earlier. The evidence today vindicates the view expressed by Mrs Killerby for the Council of Europe at the 1993 Colloquy that rapid medical progress has been made

I must mention the important Dutch research into a brain area, the Stria terminalis which experienced neuroscientists, including Professor Gooren who was at the 23rd Colloquy and who is here today as one of the advisers to the applicants, state

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is essential for sexual behaviour. This research showed that there is a part of the brain which is different between females and males. They discovered this after careful scientific research, but most significantly a female brain structure is to be found in genetically male transsexuals. This supports the position that gender identity develops as an inter-reaction between the developing brain and sex hormones. Their paper was published in November in the leading scientific journal "Nature". it further supports the stance taken in the paper, "Transsexualism: the current medical viewpoint", which is the annex to Kristina Sheffield's affidavit.

Developments are summarised at paragraphs 5 and 6 of that paper and reference there is made to the "quality of life" indicators for assessing the effectiveness of patient care. Can the individual satisfactorily find employment? Can she make relationships? Can she integrate with a larger community? Can she lead a fulfilling life? The impact on Kristina of the law is serious and profound and, contrary to medical developments treating her gender for all lawful purposes as male despite her ability informally to adopt a name that is female, puts her at grave disadvantage. It is ghastly.

Back in 199U, at paragraph 3.4 of his dissenting opinion in Cossey, Judge Martens well expressed the seriousness of what, as he put it, the British "biological sex is decisive" rule does, and the suffering it causes. He did not exaggerate in speaking of it condemning post-operative transsexuals to "permanent and acute personal distress" and "life-long dread".

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The respondent has referred to quotations from the 1993 Colloquy contributions of Dr. Reid, a consultant psychiatrist, and Professor Doek, who was the Colloquy's general rapporteur. Recently, Mr Brandman wrote to both experts. Professor Doek replied that the passage was "a summary of the opinions existing at the time I prepared the report, i.e. three years ago". He says that if he wrote a similar report today it would be different, given the new scientific information. Professor Doek says:

As for Dr. Reid, he wrote of the passage of his 1993 report relied on by the respondent just the following, "Please note that this statement has been superseded by the work" into brain differences. Dr. Reid states that there is now:

So, medical and scientific information today supports the dissenters in Cossey and

shows, in my submission, that there are issues that ought to be examined further.

Mr President, may I now turn to indicate our position briefly on each of the questions put to the parties.

On Article 8, we ask you to declare the application admissible and to find violations on the merits. The lack of legal recognition for Kristina's gender reassignment has and continues to have a very severe impact on her and creates continuing injustice. You have asked whether any element of public interest outweighs the suffering caused to her. Our answer is simple: it does not.

The dissenters in Rees and Cossey explained how easy it would be to permit an annotation of civil records, and I refer in particular to paragraphs 3-5 of the dissenting opinions of Judges Bindschedler-Robert, Russo and Gersing in the 1986 Rees case. They point out that just such a system exists for adoption. Andrew McFarlane, who is with me, specialises in family law at the Bar. He is co-author of a leading book dealing with the topic and he is ready to answer any questions you may have relating to that aspect of the case.

As to B V. France I have nothing to add to the submissions already made.

On the criminal law protection for male to female transsexuals, there is a serious gap in the legal protection provided which, contrary to what Mr Pannick has submitted, has not been filled by section 142 of the Criminal Justice and Public Order Act 1994. In British law Kristina and Rachel are regarded as men. Men do not have vaginas. Men are incapable, in law, of being vaginally assaulted. Indeed, in the leading case of Corbett V. Corbett, the phrase "so-called artificial vaginas" was used. The position is that if one of these individuals were to be assaulted now, that would not be regarded as a vaginal assault because in law their gender is male and male persons do not have that part of the anatomy.

So, the position is that the most private and personal part of their physical anatomy is denied a fundamental legal recognition and protection. I submit that this is wholly inappropriate by the standards of today. I submit that they suffer a discrimination in the protection the criminal law affords to them because of its failure

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to recognise their gender change. Th 1985, in X and Y v. the Netherlands the Court stressed the importance of protection by the criminal law against assault I submit that you have here an unjustified gap and one which should be examined under Article 8 alone and Article 8 read with Article 14.

I turn to Article 12 and I will be brief at this point because I simply invite you to reconsider the position you took in 1984 in the decision Mr Pannick has referred to, in the light of the submissions put earlier on the need to re-examine the appropriate approach under the Convention in the light of the passage of time, legal, medical and societal developments.

I have just two further submissions on this. First, you know from Kristina Sheffield's affidavit how much the denial of the right to marry hurts her. Even when no question had been put she insisted on telling you how important the matter was to her. I would also ask you to examine Article 12 with Article 14. There is another aspect of Article 12 and the right to marry but that is better dealt with when I turn to the case of Rachel Horsham, which I now do.

Rachel Horsham is in a slightly different position to Kristina Sheffield. Unlike Kristina, Rachel lives in the Netherlands where she received her gender re-assignment treatment. She obtained Dutch nationality and has secured a Dutch birth certificate which shows her gender as female. She would wish to marry soon. Dutch law permits her to do this. So you may say that Rachel, living in Amsterdam, is not as affected by

United Kingdom law and practice as Kristina, but such a position would be utterly wrong and most unjust for reasons I will now outline.

At your earlier consideration of Rachel's case, the Commission rejected her complaint under Article 3 of Protocol No.4. The Commission was right to do so because the United Kingdom has not accepted that British nationals have a right protected under the Convention not to be expelled from that country and not to be deprived of the right to enter it. As a British national, I am saddened that my Government have failed to recognise this fundamental international right for its citizens but as a lawyer, of course I accept that their negative decision cannot be questioned here before this Commission.

Rachel's rejected complaint under Protocol No.4, however, is of some significance. It indicates why she is here today and why she is so adversely affected by British law and practice and why her case is every bit as powerful as that of Kristina Sheffield and should, I submit, be equally declared admissible.

Rachel left the country she was born in because she could not tolerate being treated as a man and suffering the legal discriminations and difficulties that I have mentioned already.

Let me take a comparable example from recent history. When South Africa practised apartheid, many people, particularly black and coloured people, found it so intolerable to live under constant discrimination that they left and lived abroad. Although not technically expelled from their country, could anyone reasonably doubt

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that these people had left because of the injustice then practised in South Africa and that they remained personally and directly affected throughout the period in which they felt compelled to live outside their country.

So it is for Rachel. The Commission knows from the long heart-felt comments and communications she has made to the Commission how intolerable she finds living in her country of origin where she would have to endure being treated legally as a man, contrary to her appearance and gender.

The United Kingdom's failure to recognise an obligation not to expel its nationals from its territory under Protocol No.4, of course, does not preclude you from examining the facts of Rachel's case, including the angle of what it has driven her to do, under Articles 8, 12 and 14 of the Convention.

That was decided by the Commission more than 20 years ago in its admissibility decision and Report in the East African Asians case: although the right to enter one's own country is not protected by the Convention, its denial may "nevertheless violate quite independently another right already covered by the Convention" (paragraph 187 of the East African Asians Report).

In that Report, the Commission condemned treating some as second-class citizens. That is what Rachel and Kristina feel. That is why Rachel Horsham has felt she has to live outside her country. That is why she has been driven to obtaining a new nationality. A violation of Article 8, read with Article 14, was found in the East African Asians case.

Other early cases and principles are also pertinent. There is the principle (the Golder case at paragraph 26) that "hindrance in fact can contravene the Convention just as much as a legal impediment". Then there is the principle from the Deweer case of 1980 at paragraph 50 where, in relation to fundamental rights protected under the Convention, the Court stated the need for vigilance and the absence of constraints are "dictated by an international instrument founded on freedom and the rule of law".

We ask that you apply these established principles to the facts of the cases before you, and the facts of Rachel Horsham's case in particular, and to find for all the reasons submitted earlier that her case is plainly admissible and that, on the merits, the respondent has violated its rights under the Convention, in particular Articles 8, 12 and 14.

There is only one further issue on which we wish to make submissions. Paragraph 2.3 of the respondent's written observations in the Horsham case states that in general, English law recognises the validity of a foreign marriage. But the opening qualification "in general'¹ is important and I would ask you now briefly to hear Andrew McFarlane, the family law specialist, on the specific position in English law of a marriage between a post-operative female transsexual and a man, and the difficulties over its recognition in our country

THE PRESIDENT: You may proceed as arranged but I would draw your attention to the fact that you have already used your 45 minutes and I would be grateful if you could be very brief.

Mr McFARLANE: Mr President, I intend to be.

The general rule which Mr Duffy has explained to you and which the Government seek to invoke simply does not apply in this case. A validly contracted foreign marriage between a post-operative male to female transsexual and a man would not be recognised in England. Under Dutch law, Rachel Horsham may contract a valid marriage to a male. The legal position in the United Kingdom is therefore very important to her.

There are at least two legal reasons for this discriminatory exception to the general rule which the Government rely upon. First, a foreign marriage will be recognised in England if it satisfies the general definition of marriage formulated in the 19th century case of Hyde V. Hyde. Four conditions are laid down: a marriage must be voluntary; it must be for life; it must be monogamous - Rachel's proposed marriage will be all of these but it will not satisfy the fourth condition of being heterosexual since English law regards Rachel, as you know, for all legal purposes as male.

The second block to the recognition in England of any valid Dutch marriage that Rachel contracts is the well-established exception that English law will refuse to give effect to a capacity to marry if this would be "unconscionable".

In the leading case of Cheni V. Cheni from 1965, the President of the English Family Division said:

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VR23390/94 Any marriage that Rachel may validly contract in the Netherlands would be regarded as so offensive to the court's conscience in England that recognition of it would be denied. Indeed, so clear is the position that the leading textbook, "Bromley on Family Law" has said that it is "inconceivable" that an English court would recognise a union between two persons of the same legal sex.

The impact of what I have just described on Rachel is dreadful. If she marries and returns to England, her union will be legally void, regarded as offensive to public policy. She and her partner are, in fact, reluctant to embark upon a marriage because of this position. She finds the situation deeply offensive and we urge you to understand the unnecessary pain that she suffers and to declare her case admissible.

Mr President, I hope I have been brief. That concludes our joint submissions and Mr Duffy and I are, of course, ready to answer any questions that the Commission may have.

THE PRESIDENT: Thank you, Mr McFarlane. Are there any questions to the parties? Mrs Thune, please.

Mrs THUNE: Could the Government explain the implications of, or the obstacles to, a possible alteration or addition to the birth register following a change of gender. In practical terms what are the problems which would occur in the European Union if there were to be a change in the legal situation in the United Kingdom in order to make such an alteration possible? In other words, is this only a question of principle for the Government or do they claim more substantial grounds? Could you please also

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relate such possible grounds to the requirements under Article 8 para 2 as to necessity and proportionality.

THE PRESIDENT: Mr Schermers, please.

Mr SCHERMERS: I have some questions addressed to the Government. In their introductory speech, it is said that a birth certificate is an historical document not meant for the current situation. I hope you will agree that it does affect the current situation, otherwise we would not be here.

My first question to you is, does not Article 8 require also some positive obligation to protect from harassment and, in particular, to protect a person in so weak a position as that of a transsexual? Does not the refusal of official recognition of the change of sex have the effect on all sorts of lower authorities in the country that such positive protection is withheld?

My second question is the following. Article 8 para. 2 requires that any restriction of the respect required by paragraph 1 is necessary in a democratic society. I agree with you that some remaining uncertainties as to the position of transsexuals justify a rather wide margin of discretion for the Government but, still, am I not right that the interests on both sides must be weighed? If they must be weighed, I agree that the interests of the applicants may be less than those in the case of B V. France but even so they are considerable - otherwise we would not be here.