AS TO THE ADMISSIBILITY OF
Application No. 14573/89
by Anita ERIKSSON and Asta GOLDSCHMIDT
against Sweden
The European Commission of Human Rights sitting in private
on 9 November 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 August 1988
by Anita Eriksson and Asta Goldschmidt against Sweden and registered
on 24 January 1989 under file No. 14573/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are Swedish citizens, born in 1935 and 1933
respectively, and resident at Mockfjärd, Sweden. The first applicant
is retired and the second applicant self-employed.
The first applicant is a transsexual who was registered at
birth as being of male sex. She has had regular contact with the
Psychiatric Clinic of the Hospital of Falun since 1962. Having
received a certificate from the Clinic stating that for medical
and mental reasons she needed to act as a woman in everyday life, she
requested the National Board of Health and Welfare (socialstyrelsen)
to change her Christian name and to determine that she is of female
sex. On 23 September 1980 the National Board decided in accordance with
Section 1 of the 1972 Act on the Determination of Sex in Special
Circumstances (lagen om fastställande av könstillhörighet i vissa
fall) that the first applicant should be considered as being of female
sex. The Board referred her request for a change of name to the
Patent and Registration Office (patent- och registreringsverket) with
its recommendation that the name be changed. The Patent and
Registration Office on 22 October 1980 changed her Christian name from
Sven Ove to Anita Birgitta. On 30 October 1980 the National Tax
Board (riksskatteverket) gave the applicant a new personal identity
number (personnummer) indicating that she is a woman. The applicant
was subsequently registered in the population record as being of
female sex. The applicant never had any surgical treatment and is
physically still of male sex.
The applicants are living in a heterosexual relationship.
Their request for a marriage licence was rejected by the Parish Civil
Registration Office (pastorsämbetet) of Mockfjärd on 11 November 1984
on the ground that both applicants were of female sex. The
applicants asked the Government for an exemption from the relevant
provisions of the Marriage Code (giftermålsbalken). The Government
on 11 September 1986 dismissed their request as it was not within
their competence to grant such an exemption.
The applicants made a new request for a marriage licence which
was rejected by the Parish Civil Registration Office on 11 May 1987.
The applicants appealed to the Cathedral Chapter (domkapitlet) of
Västerås which on 9 September 1987 confirmed the decision of the
Parish Civil Registration Office. The applicants' further appeal
was rejected by the Administrative Court of Appeal (kammarrätten) of
Sundsvall on 17 November 1987. On 19 February 1988 the Supreme
Administrative Court (regeringsrätten) refused leave to appeal.
COMPLAINTS
The applicants allege a violation of Article 12 of the
Convention as they have been refused the right to marry. They maintain
that they should have the right to marry as they are of opposite
biological sex. They point out that long before the first applicant
had her registered sex changed she had acted as a woman in order to
facilitate everyday life. She would then have been allowed to marry
the second applicant. The applicants furthermore point out that the
first applicant would, although she is physically a man, in principle
be allowed to marry another man.
THE LAW
The applicants allege a violation of their right to marry as
guaranteed by Article 12 (Art. 12) of the Convention.
Article 12 (Art. 12) of the Convention reads as follows:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing
the exercise of this right".
In the Rees case, the Court stated as follows (Eur. Court of
H.R., Rees judgment of 17 October 1986, Series A no. 106, p. 19,
paras. 49-51):
"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.
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.
There is accordingly no violation in the instant case of
Article 12 (Art. 12) of the Convention."
The Commission notes that the present applicants, although
biologically of opposite sex, are under Swedish law both of female
sex. This is so since the first applicant has, for medical and mental
reasons, freely chosen to adopt the female sex and this change has
been recognised in accordance with the Act on the Determination of Sex
in Special Circumstances. Consequently, under Swedish law the
applicants do not have the right to marry as they are legally of the
same sex.
The Commission considers that the right to marry under
Article 12 (Art. 12) of the Convention only covers the right to marry
someone of the opposite sex. It accepts that this applies also
where, as in the present case, the couple are not biologically of the
same sex but where one of the partners has obtained the same sex
status as the other partner through a voluntary act recognised under
domestic law.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy