Application No. 10843/84
C.
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 9 May 1989)
10843/84
- i -
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) ...................................... 1
A. The application
(paras. 2 - 5) ............................... 1
B. The proceedings
(paras. 6 - 9) ............................... 1
C. The present Report
(paras. 10 - 14) ............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 30) .................................... 3
A. The particular circumstances of the case
(paras. 15 - 18) ............................. 3
B. Relevant domestic law
(paras. 19 - 30) ............................. 3
III. OPINION OF THE COMMISSION
(paras. 31 - 48) ..................................... 7
A. Points at issue
(para. 31) ................................... 7
B. Article 8 of the Convention
(paras. 32 - 38) ............................. 7
C. Article 12 of the Convention
(paras. 39 - 47) ............................. 11
D. Recapitulation
(para. 48) ................................... 13
Dissenting opinion of Mr. J.A. Frowein, joined by
MM. Ermacora, Gözübüyük, Rozakis, Schermers
and Mrs. Thune ....................................... 14
Dissenting opinion of Mr. H. Danelius, joined by
MM. Weitzel, Vandenberghe, Sir Basil Hall
and Mrs. Liddy ....................................... 14
Dissenting opinion of Mr. Martinez ................... 15
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 16
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 17
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born on 31 August 1954 and
living in London. She is represented by Mr. David Pannick, barrister,
who is instructed by Messrs. Howard Kennedy, Solicitors in London.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent, Mr. M.C. Wood,
Foreign and Commonwealth Office.
4. The applicant is a transsexual who was registered at birth as
being of male sex. When adult the applicant underwent extensive
medical and surgical treatment to change sex from male to female.
5. The applicant complains that under United Kingdom law she
cannot claim full recognition of her changed status. In particular,
she complains that she cannot marry an Italian citizen, Mr. G.L., who
wishes to marry her. She invokes Articles 8 and 12 of the Convention.
B. The proceedings
6. The application was introduced on 24 February 1984 and
registered on 1 March 1984. On 9 May 1984 the Commission decided in
accordance with Rule 42 (2) (b) of its Rules of Procedure to give
notice of the application to the respondent Government. In view of an
analogous application, No. 9532/81, Rees v. the United Kingdom (see
para. 18 below), which had been declared admissible on 14 March 1984
and was at the time still pending before the Commission, the
time-limit for the submission of observations was suspended pending
the Commission's Report in that case. On 12 December 1984 the
Commission adopted its Report in the Rees case. It submitted it to
the European Court of Human Rights on 12 March 1985. In a letter of
4 April 1985 the respondent Government stated that in view of this
Report they did not consider it appropriate to submit any observations
in the present case.
7. On 5 July 1985 the present application was declared
admissible. The Commission found that the case raised issues under
Articles 8 and 12 of the Convention analogous to those in the Rees
case. It then adjourned the examination of the present application
pending the judgment in the Rees case.
8. On 10 December 1986, following the Court's judgment in the
Rees case, the Commission resumed the examination of the present
application and on 9 May 1987 it decided to request the parties to
state whether, in the light of the Rees judgment, they wished to
submit further observations. Both parties renounced submitting
observations on the merits.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. b of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. J. A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
11. The text of this Report was adopted on 9 May 1989
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. The applicant was born 1954 as a male and registered as such
in the birth register under male christian names. Growing up the
applicant became aware that psychologically she was of female sex.
In July 1972 she abandoned her given christian names and assumed
a woman's name, which was confirmed by Deed Poll on 16 March 1973.
Since that time she has been known under that name for all purposes,
has dressed as a woman and adopted a female role for all purposes. In
December 1974 the applicant had gender reassignment surgery carried
out in Charing Cross Hospital. A medical report, dated 8 February
1984, describes her as a pleasant young woman and asserts that since
the gender reassignment surgery the applicant has lived a full life as
a female, both psychologically and physically. It also confirms that
a genital examination of the applicant showed her to be female in all
respects.
16. In 1976 the applicant was given a United Kingdom passport as a
female.
17. According to her uncontested statements, the applicant wishes
to marry an Italian citizen, who is willing to marry her. She
therefore inquired whether she could validly contract such a marriage.
By letter of 2 August 1983 the Director and Registrar General
informed the applicant that a marriage would be void because English
law would treat the applicant as male, notwithstanding her anatomical
and psychological status as a woman. The applicant's Member of
Parliament informed her in a letter of 30 August 1983 that it would
require a change in United Kingdom law to allow her to marry. On
18 January 1984, after another enquiry by the applicant, she was
informed on behalf of the Registrar General that she could not be
granted a birth certificate showing her sex as female, since a birth
certificate records details as at the date of birth.
18. The above-mentioned case of Rees was decided by the European
Court of Human Rights on 17 October 1986 with the finding that there
was no violation of Articles 8 and 12 of the Convention (Series A
no. 106). The applicant in that case was born in 1942 as a child of
female sex and had been recorded in the birth register as a female.
In 1974 he had undergone medical treatment for physical sexual
conversion. He changed his names to male names and had been living as
a male but had not been allowed to change the indication of his sex in
the birth register.
B. Relevant domestic law and practice
1. Medical treatment
19. In the United Kingdom sexual reassignment operations are
permitted without legal formalities. The operations and treatment may
be carried out under the National Health Service.
2. Change of name
20. Under English law a person is entitled to adopt such first
names or surname as he or she wishes and to use these new names
without any restrictions or formalities, except in connection with the
practice of some professions where the use of the new names may be
subject to certain formalities (see, inter alia, Halsbury's Laws of
England, 4th ed., vol. 35, para. 1176). For the purposes of record
and to obviate the doubt and confusion which a change of name is
likely to involve, the person concerned very frequently makes a
declaration in the form of a "deed poll" which may be enrolled with
the Central Office of the Supreme Court.
The new names are valid for purposes of legal identification
(see Halsbury's Laws of England, loc. cit., para. 1174) and may be
used in documents such as passports, driving licences, car
registration books, national insurance cards, medical cards, tax
codings and social security papers. The new names are also entered
on the electoral roll.
3. Identity documents
21. Civil status certificates or equivalent current identity
documents are not in use or required in the United Kingdom. Where
some form of identification is needed, this is normally met by the
production of a driving licence or a passport. These and other
identity documents may, according to the prevailing practice, be
issued in the adopted names of the person in question with a minimum
of formality. In the case of transsexuals, the documents are also
issued so as to be in all respects consistent with the new identity.
Thus, the practice is to allow the transsexual to have a current
photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms."
or "Miss", as appropriate, before his or her adopted names.
4. The Register of Births
22. The system of civil registration of births, deaths and
marriages was established by statute in England and Wales in 1837.
Registration of births is at present governed by the Births and Deaths
Registration Act 1953 ("the 1953 Act"). The entry into force of this
Act entailed no material change to the law in force in 1940, the date
of the applicant's birth. The 1953 Act requires that the birth of
every child be registered by the Registrar of Births and Deaths for
the area in which the child is born. The particulars to be entered
are prescribed in regulations made under the 1953 Act.
A birth certificate takes the form either of an authenticated
copy of the entry in the register of births or of an extract from the
register. A certificate of the latter kind, known as a "short
certificate of birth", is in a form prescribed and contains such
particulars as are prescribed by regulations made under the 1953 Act.
The particulars so prescribed are the name and surname, sex, date of
birth and place of birth of the individual.
An entry in a birth register and the certificate derived
therefrom are records of facts at the time of birth. Thus, in England
and Wales the birth certificate constitutes a document revealing not
current identity, but historical facts. The system is intended to
provide accurate and authenticated evidence of the events themselves
and also to enable the establishment of the connections of families
for purposes related to succession, legitimate descent and distribution
of property. The registration records also form the basis for a
comprehensive range of vital statistics and constitute an integral and
essential part of the statistical study of population and its growth,
medical and fertility research and the like.
23. The 1953 Act provides for the correction of clerical errors,
such as the incorrect statement or omission of the year of the birth,
and for the correction of factual errors; however, in the latter case,
an amendment can be made only if the error occurred when the birth was
registered. The birth register may also, within twelve months from
the date of registration, be altered to give or change the name of a
child and re-registration of a birth is permitted where the child has
been legitimated. In addition, under the Adoption Act 1958, where a
child is adopted, the register of births is to be marked with the word
"adopted"; the adoption is also registered in the Adopted Children
Register and a short certificate of birth may be obtained which
contains no reference to parentage or adoption.
24. The criteria for determining the sex of the person to be
registered are not laid down in the 1953 Act nor in any of the
regulations made under it. However, the practice of the Register
General is to use exclusively the biological criteria: chromosomal,
gonadal and genital sex. The fact that it becomes evident later in
life that the person's "psychological sex" is at variance with these
biological criteria is not considered to imply that the initial entry
was a factual error and, accordingly, any request to have the initial
entry changed on this ground will be refused. Only in cases of a
clerical error, or where the apparent and genital sex of the child was
wrongly identified or in case of biological intersex, i.e. cases in
which the biological criteria are not congruent, will a change of the
initial entry be contemplated and it is necessary to adduce medical
evidence that the initial entry was incorrect. However, no error is
accepted to exist in the birth entry of a person who undergoes medical
and surgical treatment to enable that person to assume the role of the
opposite sex.
25. The birth registers and the indexes of all the entries are
public. However, the registers themselves are not readily accessible
to the general public as identification of the index reference would
require prior knowledge not only of the name under which the person
concerned was registered, but also of the approximate date and place
of birth and the Registration District.
26. The law does not require that the birth certificate be
produced for any particular purpose, although it may in practice be
requested by certain institutions and employers.
A birth certificate has in general to accompany a first
application for a passport, although not for its renewal or
replacement. A birth certificate is also generally (though not
invariably) required by insurance companies when issuing pension or
annuity policies, but not for the issue of motor or household policies
nor, as a rule, for the issue of a life insurance policy. It may
also be required when enrolling at a university and when applying for
employment, inter alia, with the Government.
5. Marriage
27. In English law, marriage is defined as a voluntary union for
life of one man and one woman to the exclusion of all others (per Lord
Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130,
133). Section 11 of the Matrimonial Causes Act 1973 gives statutory
effect to the common-law provision that a marriage is void ab initio
if the parties are not respectively male and female.
28. According to the decision of the High Court in Corbett v.
Corbett (1971) Probate Reports 83, sex, for the purpose of contracting
a valid marriage, is to be determined by the chromosomal, gonadal and
genital tests where these are congruent. The relevance of a birth
certificate to the question whether a marriage is void only arises as
a matter of evidence which goes to the proof of the identity and sex
of the person whose birth it certifies. The entry in the birth
register is prima facie evidence of the person's sex. It may, however,
be rebutted if evidence of sufficient weight to the contrary is
adduced.
29. If, for the purpose of procuring a marriage or a certificate
or licence for marriage, any person knowingly and wilfully makes a
false oath or makes or signs a false declaration, notice or
certificate required under any Act relating to marriage, he or she is
guilty of an offence under Section 3 (1) of the Perjury Act 1911.
However, a person contracting a marriage abroad is not liable to
prosecution under this Act.
6. The legal definition of sex for other purposes
30. The biological definition of sex laid down in Corbett v.
Corbett has been followed by English courts and tribunals on a number
of occasions and for purposes other than marriage.
In the Rees case the applicant had drawn the Court's attention
to the following cases. In one case concerning prostitution, a male
to female transsexual, who had undergone both hormone and surgical
treatment, was nevertheless treated as a male by the Court of Appeal
for the purposes of Section 30 of the Sexual Offences Act 1956 and
Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others
1983, 2 All England Law Reports 12). In two cases concerning
social security legislation, male to female transsexuals were
considered by the National Insurance Commissioner as males for the
purpose of retirement age; in the first case the person in question
had only received hormone therapy, in the second she had involuntarily
begun to develop female secondary characteristics at the age of 46,
which developments were followed by surgery and adoption of a female
social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980
Volume of National Insurance Commissioner Decisions). Lastly, in a
case before an Industrial Tribunal a female to male transsexual, who
had not undergone any sex change treatment, was treated as a female by
the Tribunal for the purposes of the Sex Discrimination Act 1975; the
person in question had sought and received employment in a position
reserved for men under the Factories Act, but was dismissed after
discovery of her biological sex (White v. British Sugar Corporation
Ltd. Industrial Relations Law Report p. 121).
III. OPINION OF THE COMMISSION
A. Points at Issue
31. The points at issue in the present application are
- whether there has been a violation of the applicant's
right, under Article 8 (Art. 8) of the Convention, to respect
for her private life, in that, under United Kingdom
law, she cannot claim recognition of her present status
by a change of the birth register and the birth
certificate; and
- whether there has been a violation of Article 12
(Art. 12) of the Convention, in that, under United Kingdom
law, she cannot contract a valid marriage with a person
of male sex and adopt children.
B. Article 8 (Art. 8) of the Convention
32. Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
33. The applicant contends that the refusal by the United Kingdom
to allow her birth certificate recording her female sex and to
recognise her female sex for other legal purposes is a breach of her
right to respect for her private life guaranteed by Article 8 (Art. 8)
of the Convention. The denial of this right is in her submission not
justified under paragraph 2 (Art. 8-2) of this provision; in
particular she considers there is no "pressing social need" for the
actions of the United Kingdom, so as to make them "necessary in a
democratic society".
34. In her opinion the refusal to amend the birth register cannot
be justified by any reasons of public interest. With regard to the
respondent Government's submission that the birth register was
intended to provide authentic evidence of the events and also to
establish the connection of families for the purposes related to
succession, legitimacy and the distribution of property, she argues
that none of these purposes will be affected by an entry in the birth
register to the effect that at a particular moment a person has
changed sex. Nor would such an entry affect the statistical value of
birth registers. On the contrary it would help to give a statistical
picture corresponding to the actual situation.
35. The respondent Government limit themselves to arguing that
there is no significant distinction between the present case and the
Rees case.
36. As regards compliance with Article 8 (Art. 8) of the
Convention by the United Kingdom in relation to transsexuals, the
Commission refers to the Rees judgment of 17 October 1986, Eur. Court
H.R., Series A no. 106, p. 15-18 paras. 38-46) in which the Court
stated:
"38. Transsexualism is not a new condition, but its
particular features have been identified and examined only
fairly recently. The developments that have taken place in
consequence of these studies have been largely promoted by
experts in the medical and scientific fields who have drawn
attention to the considerable problems experienced by the
individuals concerned and found it possible to alleviate
them by means of medical and surgical treatment. The term
'transsexual' is usually applied to those who, whilst
belonging physically to one sex, feel convinced that they
belong to the other; they often seek to achieve a more
integrated, unambiguous identity by undergoing medical
treatment and surgical operations to adapt their physical
characteristics to their psychological nature. Transsexuals
who have been operated upon thus form a fairly well-defined
and identifiable group.
39. In the United Kingdom no uniform, general
decision has been adopted either by the legislature or by
the courts as to the civil status of post-operative
transsexuals. Moreover, there is no integrated system of
civil status registration, but only separate registers for
births, marriages, deaths and adoption. These record the
relevant events in the manner they occurred without, except
in special circumstances ..., mentioning changes (of name,
address, etc.) which in other States are registered.
40. However, transsexuals, like anyone else in the
United Kingdom, are free to change their first names and
surnames at will ... Similarly, they can be issued with
official documents bearing their chosen first names and
surnames and indicating, if their sex is mentioned at all,
their preferred sex by the relevant prefix (Mr., Mrs., Ms.
or Miss) ... This freedom gives them a considerable
advantage in comparison with States where all official
documents have to conform with the records held by the
registry office.
Conversely, the drawback - emphasised by the
applicant - is that, as the country's legal system makes no
provision for legally valid civil-status certificates, such
persons have on occasion to establish their identity by
means of a birth certificate which is either an
authenticated copy of or an extract from the birth register.
The nature of this register, which furthermore is public, is
that the certificates mention the biological sex which the
individuals had at the time of their birth ... The
production of such a birth certificate is not a strict
legal requirement, but may on occasion be required in
practice for some purposes ...
It is also clear that the United Kingdom does not
recognise the applicant as a man for all social purposes.
Thus, it would appear that, at the present stage of the
development of United Kingdom law, he would be regarded as a
woman, inter alia, as far as marriage, pension rights and
certain employments are concerned ... The existence of the
unamended birth certificate might also prevent him from
entering into certain types of private agreements as a
man ...
41. For the applicant and the Commission this
situation was incompatible with Article 8 (Art. 8), there being in
their opinion no justification for it on any ground of
public interest. They submitted that the refusal of the
Government to amend or annotate the register of births to
record the individual's change of sexual identity cannot be
justified on any such ground. Such a system of annotation
would, according to the applicant, be similar to that
existing in the case of adoptions. The applicant and the
Commission pointed to the example of certain other
Contracting States which have recently made provision for
the possibility of having the original indication of sex
altered from a given date. The Commission additionally
relied on the fact that the United Kingdom, through its free
national health service, had borne the costs of the surgical
operations and other medical treatment which the applicant
had been enabled to undergo. They considered that this
medical recognition of the necessity to assist him to
realise his identity must be regarded as a further argument
for the legal recognition of the change in his sexual
identity; failure to do so had the effect that the applicant
was treated as an ambiguous being.
42. The Court is not persuaded by this reasoning.
(a) To require the United Kingdom to follow the
example of other Contracting States is from one perspective
tantamount to asking that it should adopt a system in
principle the same as theirs for determining and recording
civil status.
Albeit with delay and some misgivings on the part of
the authorities, the United Kingdom has endeavoured to meet
the applicant's demands to the fullest extent that its
system allowed. The alleged lack of respect therefore seems
to come down to a refusal to establish a type of documentation
showing, and constituting proof of, current civil status.
The introduction of such a system has not hitherto been
considered necessary in the United Kingdom. It would have
important administrative consequences and would impose new
duties on the rest of the population. The governing
authorities in the United Kingdom are fully entitled, in the
exercise of their margin of appreciation, to take account
of the requirements of the situation pertaining there in
determining what measures to adopt. While the requirement
of striking a fair balance ... may possibly, in the
interests of persons in the applicant's situation, call
for incidental adjustments to the existing system, it
cannot give rise to any direct obligation on the United
Kingdom to alter the very basis thereof.
(b) Interpreted somewhat narrowly, the
applicant's complaint might be seen as a request to have
such an incidental adjustment in the form of an annotation
to the present birth register.
Whilst conceding that additions can be made to the
entries in the birth register in order to record, for
example, subsequent adoption or legitimation ..., the
Government disputed that the proposed annotation was
comparable to additions of this kind. They submitted that,
in the absence of any error or omission at the time of
birth, the making of an alteration to the register as to the
sex of the individual would constitute a falsification of
the facts contained therein, and would be misleading to
other persons with a legitimate interest in being informed
of the true situation. They contended that the demands of
the public interest weighed strongly against any such
alteration.
The Court notes that the additions at present
permitted as regards adoption and legitimation also concern
events occurring after birth and that, in this respect, they
are not different from the annotation sought by the
applicant. However, they record facts of legal significance
and are designed to ensure that the register fulfils its
purpose of providing an authoritative record for the
establishment of family ties in connection with succession,
legitimate descent and the distribution of property. The
annotation now being requested would, on the other hand,
establish only that the person concerned henceforth belonged
to the other sex. Furthermore, the change so recorded could
not mean the acquisition of all the biological
characteristics of the other sex. In any event, the
annotation could not, without more, constitute an effective
safeguard for ensuring the integrity of the applicant's
private life, as it would reveal his change of sexual
identity.
43. The applicant has accordingly also asked
that the change, and the corresponding annotation, be kept
secret from third parties.
However, such secrecy could not be achieved without
first modifying fundamentally the present system for keeping
the register of births, so as to prohibit public access to
entries made before the annotation. Secrecy could also
have considerable unintended results and could prejudice
the purpose and function of the birth register by
complicating factual issues arising in, inter alia, the
fields of family and succession law. Furthermore, no
account would be taken of the position of third parties,
(e.g. life insurance companies) in that they would be
deprived of information which they had a legitimate interest
to receive.
44. In order to overcome these difficulties
there would have to be detailed legislation as to the
effects of the change in various contexts and as to the
circumstances in which secrecy should yield to the public
interest. Having regard to the wide margin of appreciation
to be afforded the State in this area and to the relevance
of protecting the interests of others in striking the
requisite balance, the positive obligations arising from
Article 8 (Art. 8) cannot be held to extend that far.
45. This conclusion is not affected by the fact,
on which both the Commission and the applicant put a certain
emphasis, that the United Kingdom co-operated in the
applicant's medical treatment.
If such arguments were adopted too widely, the
result might be that Government departments would become
over-cautious in the exercise of their functions and the
helpfulness necessary in their relations with the public
could be impaired. In the instant case, the fact that the
medical services did not delay the giving of medical and
surgical treatment until all legal aspects of persons in the
applicant's situation had been fully investigated and
resolved, obviously benefited him and contributed to his
freedom of choice.
46. Accordingly, there is no breach of Article 8 (Art. 8)
in the circumstances of the present case."
37. The Commission considers that the present application does not
reveal a particular novel aspect of the situation of transsexuals in
the United Kingdom, distinguishing it from the situation in the Rees
case as far as the right to respect for private life is concerned.
Conclusion
38. The Commission concludes, by ten votes to six, that there has
been no violation of Article 8 (Art. 8) of the Convention in the
present case.
C. Article 12 (Art. 12) of the Convention
39. Article 12 (Art. 12) of the Convention reads:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national law governing the
exercise of this right."
40. The applicant complains that she is denied the right to marry
a man as she is in this respect treated as a man by the United Kingdom
authorities. She states that her sexual conversion enables her to
consummate marriage with a man and that she wishes to marry an Italian
citizen who also wishes to marry her.
41. As regards compliance with Article 12 (Art. 12) of the
Convention by the United Kingdom, the Commission again refers to the
Rees judgment (loc. cit.) in which the Court stated in this respect:
"48. The applicant complained of the undisputed fact
that, according to the law currently in force in the United
Kingdom, he cannot marry a woman. He alleged a violation of
Article 12 (Art. 12), which provides:
...
The Government contested this; the Commission was divided
between two conflicting views.
49. In the Court's opinion, the right to marry
guaranteed by Article 12 (Art. 12) refers to the traditional marriage
between persons of opposite biological sex. This appears also from
the wording of the Article which makes it clear that Article 12 (Art.
12) is mainly concerned to protect marriage as the basis of the
family.
50. Furthermore, Article 12 (Art. 12) lays down that the exercise
of this right shall be subject to the national laws of the
Contracting States. The limitations thereby introduced must
not restrict or reduce the right in such a way or to such an
extent that the very essence of the right is impaired.
However, the legal impediment in the United Kingdom on the
marriage of persons who are not of the opposite biological
sex cannot be said to have an effect of this kind.
51. There is accordingly no violation in the instant
case of Article 12 (Art. 12) of the Convention."
42. The Commission also had regard to the opinion which its
members expressed in the Rees Report of 12 December 1984 on this
issue. Five members found that there was no separate violation of
Article 12 (Art. 12) of the Convention as the impossibility under
British law of the applicant Rees to marry a person of female sex was
only a necessary consequence of the violation Article 8 (Art. 8) of
the Convention which the Commission unanimously found in that case.
Five other members considered that Article 12 (Art. 12) of the
Convention was not violated.
43. The Commission now considers that marriage and the foundation
of a family are particular events in the life of individuals 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 (Art. 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. 1
(Art. 8-1) of the Convention.
In fact the distinction between Articles 8 (Art. 8) and 12
(Art. 12) must be seen essentially as a difference between the
protection under Article 8 (Art. 8) of de facto family life
irrespective of its legal status (cf. Eur. Court H.R., Marckx
judgment of 13.6.1979, Airey judgment of 9.10.1979 and Johnston
judgment of 18.12.1986, Series A Nos. 31, 32 and 112) and the right
under Article 12 (Art. 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 of
Article 8 (Art. 8) of the Convention does not automatically exclude
the finding of a violation of Article 12 (Art. 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 (Art. 12) refers to the traditional marriage between
persons of opposite biological sex. It cannot, however, be inferred
from Article 12 (Art. 12) that the 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 (Art. 12) be related to the capacity to procreate.
46. It is certified by a medical expert that the applicant is
anatomically no longer of male sex. She has been living after the
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 purposes of Article 12 (Art. 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.
47. Conclusion
The Commission concludes, by ten votes to six, that there has
been a violation of Article 12 (Art. 12) of the Convention.
D. Recapitulation
48. The Commission concludes:
- by 10 votes to 6, that there has been no violation of
Article 8 (Art. 8) of the Convention (para. 38);
- by 10 votes to 6, that there has been a violation of
Article 12 (Art. 12) of the Convention (para. 47).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
Dissenting opinion of Mr. J.A. Frowein,
joined by MM. Ermacora, Gözübüyük, Rozakis, Schermers and Mrs. Thune
We have voted for a violation of Article 8 (Art. 8). For the
reasons developed in the opinion by five members in the case of Rees
(p. 27 para. 54), we consider that Article 8 (Art. 8) and Article 12
(Art. 12) in a case of transsexualism cannot be separated completely.
We consider that a violation of Article 8 (Art. 8) has taken place
because in the present case there are clear indications that the
applicant, who is socially accepted as a woman, and another person are
willing to marry. Under these circumstances we do not feel bound by
the judgment of the Court in the case of Rees. For us, Article 8
(Art. 8), as protecting human dignity, requires that a person, after
undergoing surgery for changing sex and being now socially accepted as
a woman, be recognised legally in her new identity.
In the case of Rees, the opinion of five members to which we
referred saw Article 12 (Art. 12) as not raising an independent issue
(loc. cit.). We have come to a different conclusion in this case where
the applicant has alleged that she has a concrete possibility to get
married.
Dissenting opinion of Mr. H. Danelius,
joined by MM. Weitzel, Vandenberghe, Sir Basil Hall and Mrs. Liddy
(in regard to Article 12 (Art. 12) of the Convention)
In the Rees case, the European Court of Human Rights
considered that the legal impediment in the United Kingdom which made
it impossible for the applicant in that case to marry a woman was not
such as to impair the right to marry guaranteed by Article 12
(Art. 12) of the Convention. The Court therefore concluded that there
had been no violation of that Article (Art. 12) (para. 41 above).
I find it natural to take the Court's reasoning in the Rees
case as the starting-point in the present case. It remains to be
examined whether there are any reasons for distinguishing the present
case from the Rees case.
The Court's reasoning in the Rees case as referred to above
was of a general character and based on an evaluation of a principle
of United Kingdom law rather than on an assessment of any concrete
circumstances pertaining to the specific case. Consequently, it would
not seem justified to distinguish the present case from the Rees case
on the ground that the present applicant appears to have a male
partner wishing to marry her (para. 44 above). Nor can I find any
other distinguishing elements which could be relevant to the
conclusion drawn in relation to Article 12 (Art. 12).
It follows, in my view, that the present case cannot be
distinguished from the Rees case. Following the Court's case-law on
this matter, I have therefore voted against the Commission's
conclusion in paragraph 47 of the Report.
Dissenting opinion of Mr. F. Martinez
I differ from the opinion of the majority of the Commission in
their finding that there has been a violation of Article 12 (Art. 12)
of the Convention. My reasons are as follows:
1. The Lawless judgment says that the Commission is an auxiliary
of the Court.
I think, therefore, that the Commission should not go against
the Court's doctrine, but attempt to keep to it.
2. Where Article 12 (Art. 12) of the Convention is concerned, it
seems to me that the Commission is not following the Court, but
contradicting it.
The Court held in the Rees judgment that, at the present stage
of the development of United Kingdom law, a transsexual cannot be
considered as a woman where marriage is concerned (para. 40 of the
judgment).
3. In departing from the Court's opinion, the Commission finds a
difference between the Rees case and the one with which we are
concerned, the difference being that there is a person of the male sex
wishing to marry the applicant (para. 44 of the Report).
But I do not think that this fact allows a valid distinction
to be drawn between the two cases because it is actual capacity, and
not a partner's wish, which makes a person capable of contracting a
marriage.
4. In support of the impediment barring the applicant from
contracting the desired marriage, I would draw attention to the
Court's opinion that the guarantee contained in Article 12 (Art. 12)
of the Convention concerns traditional marriage between persons of
biologically opposite sexes (Rees judgment, para. 49).
But there is also the actual text of Article 12 (Art. 12),
which, as the Court pointed out, refers to the national law of the
States party to the Convention (Rees judgment, para. 50). This means
that it is for the laws of the state to specify the essence of
marriage and the conditions governing access to it.
In English law, marriage is subject to the condition that the
partners should be of the male and female sex respectively (cf. Comm.
Report, para. 27). Where marriage is concerned, sex is to be
determined by chromosomal, gonadal and genital tests (Comm. Report,
para. 28).
For this reason, since the applicant fails to show that her
female sex has been determined by chromosomal, gonadal and genital
tests, she does not have the right to marry "according to the national
laws governing the exercise of this right".
5. Marriage is not merely a question of wishes, but a question of
legal capacity.
If the applicant were a citizen of a state for which marriage
is simply the lawful union of two consenting individuals, she would
have no difficulty in contracting a marriage.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
24 February 1984 Introduction of the application
1 March 1984 Registration of the application
Examination of Admissibility
9 May 1984 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
4 April 1985 Government's letter renouncing
to submit observations on
admissibility
5 July 1985 Commission's decision to
declare the application
admissible and to adjourn the
examination on the merits
Examination of the merits
10 December 1986 Commission resumes examination of
the case
9 May 1987 Commission invites parties to
submit observations on the merits
16 June 1987 Government renounces to submit
observations
25 June 1987 Applicant renounces to submit
observations
11 April 1989 Commission's deliberations on the
merits
4 May 1989 Commission's deliberations and
final vote
9 May 1989 Adoption of the Report