AS TO THE ADMISSIBILITY OF
Application No. 23390/94
by Rachel HORSHAM
against the United Kingdom
The European Commission of Human Rights sitting in private on
19 January 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 25 August 1993 by
Rachel HORSHAM against the United Kingdom and registered on 7 February
1994 under file No. 23390/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 December 1994 and the observations in reply submitted by the
applicant on 17 February 1995 ;
- the material submitted by the Government on 8 December 1995 and
by the applicant on 15 January 1996;
- the observations submitted by the parties at the oral hearing
held on 19 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British and Dutch citizen born in 1946 in the
United Kingdom and resident in Amsterdam. The facts as submitted by the
parties may be summarised as follows.
A. Particular circumstances of the case
The applicant was recorded at birth as being of the male sex.
From 1990, the applicant, who had been living as a female,
underwent psychotherapy and hormonal treatment and finally underwent
gender re-assignment surgery on 26 June 1992.
On 11 September 1992, following an initial refusal, the United
Kingdom Consulate in Amsterdam issued a passport in the applicant's new
name which recorded the applicant's sex as female. She also obtained
a birth certificate issued by the register of births in The Hague which
recorded her new name and her sex as female, pursuant to an order by
the Amsterdam Regional Court dated 27 July 1992 that such a certificate
be issued.
The applicant requested that her original birth certificate in
the United Kingdom be amended to record her sex as female. By letter
dated 20 November 1992, the OPCS (Office of Population Censuses and
Surveys) confirmed that there was no provision under United Kingdom law
for any new information to be inscribed on her original birth
certificate.
B. Relevant domestic law and practice
Names
Under United Kingdom law, a person is entitled to adopt such
first names or surname as he or she wishes. Such names are valid for
purposes of legal identification and may be used in passports, driving
licences, medical and insurance cards etc.
Marriage
Pursuant to United Kingdom law, marriage is defined as the
voluntary union between a man and a woman, sex for that purpose being
determined by biological criteria (chromosomal, gonadal and genital)
without regard to any surgical intervention): Corbett v. Corbett [1971]
P 83.
Birth certificates
Registration of births is governed by the Births and Deaths
Registration Act 1953 which 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. An entry is regarded as record of the facts at the
time of birth. A birth certificate accordingly constitutes a document
revealing not current identity but historical facts.
The criteria for determining the sex of a child at birth are not
defined in the Act. The practice of the Registrar is to use exclusively
the biological criteria (chromosomal, gonadal and genital).
The 1953 Act provides for the correction by the Registrar of
clerical errors or factual errors, but an amendment may only be made
if the error occurred when the birth was registered. The fact that it
may become evident later in a person's life that his or her
"psychological" sex is in conflict with the biological criteria is not
considered to imply that the initial entry at birth was a factual
error. Only in cases where the apparent and genital sex of a child was
wrongly identified or where the biological criteria were not congruent
can a change in the initial entry be made and it is necessary for that
purpose to adduce medical evidence that the initial entry was
incorrect.
Rape
Prior to 1994, for the purposes of the law of rape, a male-to-
female transsexual would have been regarded as a man.
Pursuant to section 142 of the Criminal Justice and Public Order
Act 1994, rape is now defined as "vaginal or anal intercourse with a
person".
Imprisonment
Prison rules require male and female prisoners to be detained
separately.
The Government submit that in some cases post-operative
transsexuals have been placed in a prison catering for the sex which
accords with their new social status. Consideration is given to the
circumstances of each individual case of a transsexual sent to prison
as to what is appropriate.
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 male to female transsexual will accordingly only be
entitled to a State pension at the state retirement age of 65 and not
the age of 60 which is applicable to women.
COMPLAINTS
The applicant complains of the refusal of the United Kingdom to
permit alteration of her original birth certificate to record her sex
as female. She submits that this is in violation of her right to
respect for her private life, contrary to Article 8 of the Convention.
She submits that the legal position of transsexuals in the United
Kingdom was deliberately altered to their detriment in the Corbett v.
Corbett case and the true position misrepresented to the European Court
of Human Rights. She also complains that the United Kingdom fails to
recognise the marriages of transsexuals in violation of Article 12 of
the Convention. At the time of her application, the applicant referred
to her coming marriage with a Dutch male national.
The applicant complains that the United Kingdom fail to recognise
her rights as a woman. She alleges that a transsexual can be legally
raped, that the status of transsexuals at government employment
agencies, social security departments and retirement pension schemes
remain as originally recorded at birth (the retirement age of 60
applicable to women does not apply to a male-to-female transsexual who
will be governed by the male limit of 65) and that a transsexual on
imprisonment would be held in a prison catering for persons of his or
her original birth sex. A transsexual has no right, she submits, to
conceal her original sex which must be declared when, for example,
entering into an endowment insurance policy or joining a pension
scheme.
The applicant complains of discrimination contrary to Article 14
of the Convention in that the United Kingdom refuse to recognise her
rights as a woman.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 August 1993 and registered
on 7 February 1994.
On 30 August 1994, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 16
December 1994 after one extension of the time-limit fixed for that
purpose. The applicant replied on 17 February 1995.
On 4 September 1995, the Commission decided to invite the parties
to an oral hearing concerning the applicant's complaints relating to
the lack of respect for her private life, inability to marry and
discrimination, such hearing to be joined for that purpose to
Application No. 22985/93. The Commission declared inadmissible the
remainder of the applicant's complaints.
The Government submitted documents on 8 December 1995 and the
applicant further material on 15 January 1996.
At the hearing, which was held on 19 January 1996, the parties
were represented as follows.
For the Government
Ms. Dickson Agent, Foreign and Commonwealth Office
Mr. Pannick, Q.C. counsel
Mr. Singh counsel
Ms. Jenn adviser, Department of Health
Mr. Jenkins adviser, Office of Population, Censuses and
Surveys
For the applicants
Mr. Duffy counsel
Mr. McFarlane counsel
Mr. Heim counsel
Mr. Brandman solicitor
Professor Gooren adviser
Both applicants attended.
THE LAW
The applicant complains that the respondent State refuses to
recognise her status as a woman. She makes a number of complaints in
this context and invokes Articles 8, 12 and 14 (Art. 8, 12, 14) of the
Convention.
Article 8 (Art. 8) of the Convention
"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."
Article 12 (Art. 12) of the Convention
"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."
Article 14 (Art. 14) of the Convention
"The enjoyment of the rights and freedoms set forth in this
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."
The Government submit that Article 8 (Art. 8) does not require
a Contracting State to recognise for legal purposes the new sexual
identity of a person who has undergone gender re-assignment surgery.
They refer to the wide margin of appreciation to be accorded to States
in this area where difficult medical and moral questions arise on which
there is not yet any international consensus (see Eur. Court H.R. Rees
judgment of 17 October 1986 Series A no. 106; Cossey judgment of 27
September 1990, Series A no. 184 and B. v. France judgment of 25 March
1992 Series A no. 232-C). The Government submit that the applicant has
not established a degree of practical detriment which would amount to
a denial of her right to respect for her private life. Under Article
12 (Art. 12) of the Convention, there is no interference, since the
Court and Commission have recognised that marriage may legitimately be
restricted under national laws to union between a man and woman of
biological origin.
As regards the alleged discrimination, the Government consider
that the applicant receives the same treatment as all persons in her
position who have undergone gender re-assignment surgery. She cannot,
in their submission, seek to compare herself with the category of
persons who obtain rectification of the birth register as a result of
a mistake made at the time of registration.
The applicant complains that the failure of the United Kingdom
law to recognise her gender re-assignment constitutes a lack of respect
for her private life guaranteed under Article 8 (Art. 8) of the
Convention. For legal purposes, such as insurance and contractual
documents, a transsexual is required to indicate birth gender and, on
occasion, previous name and in official records (National Insurance and
social security) and in the employment context, a transsexual continues
to be regarded as being of the sex recorded at birth. The allocation
of sex in United Kingdom law and practice by reference to biological
indicators existing at the time of birth is not justified socially,
medically or scientifically. Accordingly the applicant submits that she
is subject to serious, distressing and unnecessary interferences. The
applicant complains also of a violation of her right to marry under
Article 12 (Art. 12), since her change of gender is not taken into
account and having been recorded at birth as being of the male sex,
marriage to another person of the male sex is prohibited. Under Article
14 (Art. 14) of the Convention, the applicant complains that she is
subject to discrimination as regards the inconsistency in practice of
rectification of birth certificates as carried out by the United
Kingdom authorities. The applicant submits that legal, societal and
scientific developments mean that the previous case-law of the Court
requires re-examination. She refers in particular to new scientific
research into the brain structure of transsexual persons.
The Commission has had regard to the observations submitted by
the parties. It considers that these complaints raise serious and
complex issues of law and fact under the Convention, the determination
of which should depend upon an examination on the merits. The
Commission therefore concludes that the remainder of the application
is not manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the remainder
of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy