FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32570/03
by Linda GRANT
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrM. Pellonpää,
MrR. Maruste,
MrK. Traja,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 8 October 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a United Kingdom national, who was born in 1937 and lives in St Albans, Hertfordshire. She is represented before the Court by Ms J. Sawyer, Liberty, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's birth certificate shows her as male. She completed National Service and worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, was identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at a female rate (until 1975, when the difference in rates was abolished). In 1972, she became self-employed and started paying into a private pension fund.
By letter dated 22 August 1997, the applicant applied to the local government benefits office for state pension payments. She wished these to commence on 22 December 1997, her 60th birthday. Her application was refused, by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the retirement age of 65 applied to men.
Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which rejected it on the basis of established case-law. At this time she claimed that she was no longer able to work due to spinal collapse fracture of osteoporotic origin.
On 1 October 1998, the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but by a decision on 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the Department of Social Security had not entered into an agreement to treat the applicant as a woman.
In light of the judgments dated 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom, (no. 28975/95, ECHR 2002-VI) and I. v. the United Kingdom (no. 25680/94) in which the Court found that the Government's continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 2002 asking for her case to be reopened in the light of this decision. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted.
On 5 September 2002, the Department for Work and Pensions refused to award the applicant a state pension in light of the Christine Goodwin judgment.
In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began.
By agreement, her case was adjourned to await the House of Lords' judgment in Bellinger v. Bellinger. In that case, the claimant transsexual sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By its decision of 10 April 2003 their Lordships, whilst finding the Government's continuing failure to legislate a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost state pension.
B. Relevant domestic law and practice
1. Social security, employment and pensions
A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth.
(a) National Insurance
The DSS registers every British citizen for National Insurance purposes (“NI”) on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.
The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders.
NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.
In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.
Documents received to date do not explain why National Insurance payments at the female rate were accepted from the applicant between 1963 and 1975.
(b) State pensions
A male-to-female transsexual is currently entitled to a state pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women.
A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases:
In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the applicant's appeal and stated at paragraph 9 of his decision:
“(a) In my view, the word 'woman' in section 27 of the Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.
(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted.
...
(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”
On 1 June 2000, this decision was followed by a Commissioner determining the applicant's appeal.
By 11 July 2002, when the Grand Chamber gave judgment in Christine Goodwin, the Government had instituted plans to eradicate the difference between men and women concerning age of entitlement to state pensions. Pursuant to section 126 of the Pensions Act 1995, provides for state pensionable age to increase progressively, beginning in 2010 and reaching complete equalisation of the pension age at age 65 by 2020.
Up to 15 October 2002, the Government had received 101 applications from transsexual people seeking to have their birth certificate changed. An Interdepartmental Group on Transsexual People was reconvened and reported to Ministers. On 13 December 2002, the Government announced draft legislation and a commitment to legislate as soon as possible.
In its Bellinger judgment published on 10 April 2003 (supra), the House of Lords did not expressly deal with the issue of pension entitlements, but took cognisance of the Government's concession that domestic legislation failing to recognise the acquired gender of transsexual people infringed Articles 8 and 12 of the Convention.
On 14 April 2003, the Government confirmed in response to a Parliamentary question that proposed legislation would include rights to claim a state pension from the date of legal recognition of the new gender.
The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria will be able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which would be prospective in effect, an individual would be afforded legal recognition in their acquired gender. In particular social security benefits and the state retirement pension would be paid according to the acquired gender.
From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates may be issued.
COMPLAINTS
The applicant complained that the law relating to transsexual persons in general and the decision of the Department for Social Security in particular denying her a retirement pension at age 60 amounted to a violation of her rights under Article 8 of the Convention. In her letter dated 27 July 2004, she explained that she also regarded these facts as disclosing a violation of Article 8 in conjunction with Article 14 of the Convention.
The applicant also alleged a breach of Article 1 of the First Protocol, by itself and in conjunction with Article 14. She asserted that there could be no objective justification for the interference with her proprietary entitlement to a female state pension, deriving from contributions made during her working life. The applicant argued that to place reliance on domestic law reasoning classifying her as a man would be to legitimise an already established Convention breach. Alternatively, she argued that any distinction in treatment between herself and others of her acquired gender was discriminatory. By way of further evidence of an Article 14 breach, she alleged that transsexual aliens whose state of origin recognised their acquired gender benefited from preferential treatment. To this end, she supplied a letter of the Inland Revenue dated 17 June 2002, advising a transsexual that her revised New Zealand birth certificate could be used to amend UK National Insurance records.
Finally, she complained that the absence of a remedy beyond a declaration of incompatibility, even after the Court's findings of breach in the Christine Goodwin case, deprived her of Article 13 effectiveness guarantees.
THE LAW
The applicant complained of the lack of legal recognition of her change of gender, in particular in that she was refused her state pension at age 60. She invokes Article 8 of the Convention and Article 1 of Protocol No. 1 and Article 14 of the Convention, which provide as relevant:
Article 8 of the Convention:
“1. Everyone has the right to respect for his private ... life..
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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties' submissions
1. Article 8 of the Convention
The Government accepted that the applicant had genuinely believed that she would be entitled to a pension at age 60 but submitted that this mistake was caused by the authorities. They also accepted that from the time of the judgment in Christine Goodwin v. the United Kingdom (cited above) on 11 July 2002 those parts of English law which failed to give legal recognition to the acquired gender of transsexual persons were in principle incompatible with Articles 8 and 12 of the Convention. It was clear however that the judgment did not apply to the past or overrule previous judgments but expressly recognised the prospective nature of the judgment. Accordingly, there was no violation in the present case when the applicant was refused a pension on 31 October 1997, a one-off act or decision, to be assessed for compatibility with the Convention at that date.
Furthermore they submitted that the Christine Goodwin judgment indicated that it was for the Government to implement measures in due course and the relevant domestic legal authorities were to be afforded a reasonable period within which to change clear statutory provisions for the future and were not to be treated as having been in breach of the Convention in other cases retrospectively (Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, § 58; Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000, J.R. v. Germany, no. 22651/93, Commission decision of 18 October 1995). There were inevitable difficulties and important repercussions in any major change in the system and there was a prompt legislative response. There had accordingly been no breach of Article 8 of the Convention in respect of the applicant.
The applicant emphasised that she had been issued with a national insurance card as a woman and made contributions at the woman's rate and as a result believed that she was being treated for all national insurance purposes as a woman. She had never been informed otherwise. Referring to European Union case-law on temporal effects of judgments, the applicant argued that the Christine Goodwin judgment had not been expressed as having limited temporal effect in the sense identified in the Marckx case; that it had not dispensed the Government from reopening legal acts or situations which predated the judgment; and that the Government had not so requested such limitation and had not identified any mandatory reasons of legal certainty that would justify such limitation. Since in Christine Goodwin there was a violation where the applicant had been informed in 1997 about her ineligibility for a state pension, a similar violation must have arisen in this case from the refusal given to this applicant on 31 October 1997 and certainly on 5 September 2002 when she was refused again. In any event, the situation was a continuing one, not based on any one-off act.
Even if there was a temporal limitation in the earlier judgment, the applicant argued that this could not apply to her, as she had already made an equivalent claim and instituted legal proceedings to assert her rights. Insofar as the Government sought to argue that no breach arose after the Christine Goodwin judgment, this was contrary to the House of Lords judgment in Bellinger itself and contrary to Convention case-law. On the latter point, they referred to Vermeire v. Belgium (judgment of 29 November 1991, Series A no. 214‑C), where the Court rejected the Belgian Government's argument that the judgment in Marckx required a thorough revision of the legal status of children born out of wedlock and found that Article 46 did not allow a State to suspend the application of the Convention while waiting for reform.
2. Article 1 of Protocol No. 1
The Government accepted that the applicant's entitlement to a state retirement pension, which was a contributory benefit, was a “property” right for the purposes of this provision. However, for the reasons given under Article 8 of the Convention, the refusal to recognise the applicant's acquired gender for the purposes of the state pensionable age on 31 October 1997 was within the margin of appreciation and not in violation of Article 1 of Protocol No. 1. Her complaints were in any event more appropriately examined under Article 8 and no separate issue, in their view, arose.
The applicant submitted that the denial of her pension must be regarded as an interference with a property right, namely a deprivation of five years' worth of pension payments(about GBP 20,000), for which no objective justification has been provided.
3. Article 14 of the Convention
The Government submitted that the applicant had not raised her discrimination complaint in conjunction with Article 8 until her letter of 27 July 2004, more than six months after the final domestic decision and that it was accordingly out of time. They considered that in any event no separate issues arose in respect of this aspect of her complaints and rejected the applicant's reference to recognition of a transsexual from New Zealand, who was not in a comparable position and in respect of whom any difference of treatment had a reasonable and objective justification.
The applicant submitted that complaints under Article 14 had always been a clear and inevitable part of her application and the Government had always been aware of the underlying facts. She submitted that there was no objective justification for treating her differently from the transsexual from New Zealand, as no reliance could be made on the latter's legal recognition in her state of birth as the lack of legal recognition was at the heart of the violation in the present case. Nor had any reasonable and objective justification been provided for any differential treatment between her and any other woman.
B. The Court's assessment
1. Concerning the applicant's complaints of a breach of Article 14 in conjunction with Article 8, the Court notes that this was first raised in a letter of 27 July 2004, after communication of the other complaints to the Government. Even if this complaint was based on the same underlying complaints as the rest of the application, it was nonetheless not included in the summary of violations alleged on the introduction of the application. Since the final effective decision for the purposes of this case may be regarded as the judgment of the House of Lords in Bellinger v. Bellinger (cited above) on 10 April 2003, which rendered her pending appeal before the Court of Appeal without any prospect of success, the Court finds that the discrimination complaint in conjunction with Article 8 has been raised more than six months after that date and accordingly it must be rejected as out of time pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Concerning the applicant's remaining complaints under Article 8 and Article 1 of Protocol No. 1, alone and in conjunction with Article 14, the Court finds, having regard to the parties' submissions, that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. This part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
3. The applicant also complained under Article 13 of the Convention that she had no effective remedy for her complaints
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The case-law of the Convention institutions indicates, however, that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 48, § 86). The applicant's complaints related to the state of domestic law insofar as it prevented recognition of her change of gender. It follows that this aspect of the application concerned is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares inadmissible the applicant's complaints concerning discrimination in the enjoyment of her right to private life and concerning the lack of effective remedy for her complaints;
Declares the remainder of the application admissible, without prejudging the merits of the case.
Michael O'BoyleJosep Casadevall Registrar President
Full & Egal Universal Law Academy