Application No. 10622/83
Paula JAMES
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 15 December 1988)
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 - 29) .................................... 3
A. The particular circumstances of the case
(paras. 15 - 17) ............................. 3
B. Relevant domestic law and practice
(paras. 18 - 29) ............................. 4
III. SUBMISSIONS OF THE PARTIES
(paras. 30 - 46) ..................................... 8
A. The applicant
(paras. 30 - 41) ............................. 8
B. The Government
(paras. 42 - 44) ............................. 11
IV. OPINION OF THE COMMISSION
(paras. 45 - 51) .................................... 12
A. Point at issue
(paras. 45 - 47) ............................. 12
B. Article 8 of the Convention
(paras. 48 - 50) ............................. 12
C. Conclusion
(para. 51) ................................... 16
Dissenting opinion of Mr. Ermacora ................... 17
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 18
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 19
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 10 August 1933 and
living in Guiseley, Leeds. She is represented by Mr. H.H. Storey of the
Harehills and Chapeltown Law Centre in Leeds.
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 she has undergone extensive medical and
surgical treatment changing her sex from male to female. Her request
to amend the entry in the birth register was not complied with.
5. The applicant complains that under United Kingdom law she
cannot claim full recognition of her changed status. She invokes
Articles 8, 10 and 14 of the Convention.
B. The proceedings
6. The application was introduced on 13 September 1983 and
registered on 19 September 1983. 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. United Kingdom (see
para. 17 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 in the present case was suspended
pending the outcome of the Rees case.
7. On 12 March 1985 that case was brought before the European
Court of Human Rights. In a letter of 4 April 1985 the respondent
Government stated that they did not consider it appropriate to submit
any observations in the present case, as it raised the same issues
which had already been discussed in the Rees case.
8. On 5 July 1985 the application was declared admissible.
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. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
11. The text of this Report was adopted on 15 December 1988
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 as a boy and registered as such in the
birth register under the christian names Thomas Vincent. Her family
name was Galley. When grown up the applicant worked as a male nurse,
married and had two children. Later the applicant got divorced and
subsequently irreversibly altered her sex from male to female by way
of extensive medical and surgical treatment. Consequently she changed
her christian names and surname to Paula James. She received a new
passport containing her new names. The prefix "Ms." was, however,
only added at a later date.
16. Through her Member of Parliament the applicant then applied for
an amendment to her birth certificate to be made to record the change
in her status from male to female. This request was refused and
applicant's counsel were informed by the General Registrar's Office in
a letter of 11 October 1982 that there was no provision under the
relevant legislation to permit an amendment to record an event
subsequent to birth. In a letter of 2 August 1983 the General
Registrar's Office wrote to applicant's counsel that they were aware
of the result in the Van Oosterwijck application to the European
Commission of Human Rights and of the fact that an application
(No. 9532/81) made by a United Kingdom transsexual (Rees) was pending
before the European Commission of Human Rights. As no decision had
yet been reached with regard to the latter application, they
maintained their position as set out in the letter of 11 October 1982.
17. The applicant Rees, whose case 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), was born in 1942 as a child of female sex and had been
recorded in the birth certificate 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
certificate.
B. Relevant domestic law and practice
1. Medical treatment
18. 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
19. 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 formalitites (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
20. 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
21. 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 1933, 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 success, 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.
22. 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.
23. 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.
24. 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.
25. 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.
In particular, 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
26. 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.
27. 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.
28. 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 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
29. 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 has 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 he 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. SUBMISSIONS OF THE PARTIES
A. The applicant
30. The applicant considers that her case is distinguishable from
the Rees case in view of her age, the fact that she has undergone
sexual reassignment from male to female and that she was married in
the past and there are two children from the marriage.
31. She submits that in many areas of United Kingdom law the birth
certificate of a person is used to determine one's sex, and that
'adverse inferences' may be drawn from it in the case of a
transsexual, since a transsexual presents him/herself as being of one
sex and yet the birth certificate indicates otherwise. She considers
that the limits placed by the United Kingdom on the alteration of
birth certificates and the lack of legal protection for a transsexual
discriminated against on account of the 'adverse inferences' that stem
from the inconsistency of the certificate and the external appearance
of a transsexual, together amount to the following breaches of the
Commission :
1. Article 8
32. According to the applicant one aspect of the right to respect
for private life is the protection of an individual's employment
prospects. In this respect she submits that she trained as a nurse
at St. James's Hospital, Leeds, whilst in the male role. When she
subsequently applied for work with a Nursing Agency, the Agency
refused to register her for work because they were in possession of a
reference from one of her former employers which contained information
about the surgical and other treatment that she had undergone and the
fact that she had previously been employed as a male nurse. Although
her specific grievance on that occasion was settled without resort to
an Industrial Tribunal, it is her belief that, following the case of
White v. British Sugar Corporation Ltd. 1977 IRLR 121, there is no
provision in the law of the United Kingdom which would prevent similar
treatment of her in any application that she might make for further
employment. On this basis she allegedly has been and continues to be
handicapped in any effort that she makes to obtain different or better
employment.
2. Article 10
33. The applicant argues that it is a requirement of Article 10 to
give legal recognition to her sexual identity. In her opinion the
Court appears to have accepted in the Rees case that the United
Kingdom does recognise sexual identity for a variety of purposes, for
example, passports, driving licences and national insurance
certificates which are all issued in names that reflect the
applicant's sexual identity. But the applicant submits that these
documents are documents of description, not of legal identity. These
practices have nothing to do with transsexuality; any man could call
himself Paula James and require documentation to be issued in that
name, irrespective of the reason why. The fact that these documents
have no legal significance whenever the law asks the question 'what is
a person's legal identity?' is demonstrated by the fact that she has
been and continues to be handicapped in her employment prospects and
that the United Kingdom law concerning employment rights refuses to
recognise these documents as authoritative when presented with the
alternative of the birth certificate. This pattern is repeated in the
fields of welfare, pension retirement, tax, inheritance and family
rights. Article 10 requires the safeguarding of the freedom of
expression regardless of frontiers. The applicant submits that the
refusal of United Kingdom law to recognise her expression of her
sexual identity and the consequences that flow from that non-
recognition constitute a breach of Article 10 that cannot be
necessary in a democratic society or for any other reason contained
in Article 10 para. 2 of the Convention.
3. Article 14
34. The applicant submits that this provision is breached in the
following manner: Where Article 14 says "on any grounds such as sex"
this prohibits both discrimination on account of biological sex and
discrimination on account of gender. To go further, the applicant
submits that the anti-discrimination provisions of the Convention are
targeted more at the social construction of sexual differentation
than they are at mere biological differences. This is because gender
identity is the individual's psychological experience of being female
or male. Gender identity relies on the social construction of
femininity and masculinity as its base. It is societal stereo-typing
of the gender roles that, in large part, lies at the heart of sex
discrimination, rather than discrimination purely on biological
grounds. Where there are good reasons to discriminate on biological
grounds, for example, the provisions within United Kingdom Factory
Legislation, disallowing women from working in certain conditions on
account of their physical make-up, this is not considered to be
discriminatory at all. The aim of the provisions is to ensure
equality of social treatment rather than biological assimilation. The
legislation of the United Kingdom takes no account of discrimination
based on gender and hence breaches Article 14.
35. Article 14 prohibits discrimination on account of
transsexuality itself. This stems from the non-discrimination
provisions based on "any grounds such as sex" as outlined above, or
alternatively from the prohibition of discrimination based on "civil
status". The United Kingdom discriminates against transsexuals
in the following respects:
36. In the majority of cases a person's biological sex (that
is their chromosomal, gonadal, and apparent [external genitalia] sex)
corresponds to their psychological sex. Therefore, in relying
exclusively on biological criteria in the determination of their sex,
the United Kingdom respects their gender identity and civil
status as heterosexuals. However, as far as transsexuals are concerned
this is not the case since the phenomenon transsexualism arises from
the conflict between having the biological characteristics in the
legal determination of sex (rather than the social description of sex
- as described above). The United Kingdom violates the right of a
transsexual to fully express his/her psychological sexual identity.
37. In the great majority of cases where a person is born
a hermaphrodite or with ambiguous genitalia (intersexuality) an
operation will be carried out to remove certain parts of their
genitalia and hence to align them more closely with one or other sex.
In this event the United Kingdom makes provisions for post-operative
recording of their sex in their birth certificate. However, no such
provision is available to the transsexual who desires post-operative
alteration of the details in their birth certificate. This amounts to
discrimination on grounds of transsexualism, which is prohibited by
Article 14.
38. Irrespective of the breaches of Article 14 set out above,
the United Kingdom breaches the provisions of the Article in
that it discriminates against transsexuals on account of 'birth'.
Transsexualism can be defined as gender dysphoria. In the majority of
cases there is no physical cause of gender dysphoria apparent. While
the symptom of transsexualism is the major presenting feature of gender
dysphoria, like other symptoms in medical practice it may have a
number of underlying causes. Various theories of the causation of the
condition have been proposed, based upon biological, familial,
societal or psychological factors. The biological proposition is as
follows:
39. During foetal life the developing brain is subjected to
hormonal influences that may determine behaviour after birth and later
in life. Hormones produced by the foetal gonads and the maternal
gonads will circulate within the foetal blood vascular system.
Likewise hormones administered to the mother may reach the foetus.
It is postulated that alterations in the hormonal environment of the
developing brain may switch its development in a direction opposite to
that of the biological sex. Hence gender dysphoria arises.
40. Although the evidence of biological causes of gender dysphoria
is much more extensive in the field of non-primates, it is not ruled
out as a theory even by those who prefer the familial, societal or
psychological theories of causation. Its existence as a theory allows
that it is at least arguable that transsexuals are born with the
conflict that then becomes more apparent as they become more and more
conscious of their own sex and sexuality. If this is so, they are
born with a conflict and the United Kingdom, by relying exclusively on
the biological characteristics as the determinant of sex in any given
person, discriminates against them on account of their birth as
effectively persons of both sexes.
41. Referring to paragraphs 35 - 38 of the Court's judgment in the
Rees case, the applicant concludes that the nature of the breaches
alleged, especially the breaches of Article 14, necessitates a higher
degree of positive obligation than that accepted by the Court in the
Rees case, which was only dealing with the question of alteration of
the birth certificate itself and not the various inferences that arise
from its non-alteration.
B. The respondent Government
42. In the respondent's Government's opinion none of the points
made by the applicant distinguish her case from that of Rees.
43. Moreover, the respondent Government consider that the
applicant's further submissions raise issues falling outside the
Commission's decision on admissibility of 5 July 1985, according to
which the application only raises an issue under Article 8 of the
Convention.
44. Even if the facts of the present case could give rise to an
issue under Article 10, the respondent Government consider that it is
not open to the applicant to raise such an issue at this stage of the
proceedings.
IV. OPINION OF THE COMMISSION
A. Point at issue
45. The only point at issue in the present application is whether
the refusal to change the birth certificate with the effect that the
applicant's present status is not recognised for every legal purpose
amounts to a violation of her right to respect for her private life
as guaranteed by Article 8 (Art. 8) of the Convention.
46. The applicant also submits that her case discloses a separate
violation of Article 8 (Art. 8+14) read in conjunction with Article 14
of the Convention. In this respect the Commission found in the
decision on the admissibility of the application (p. 22 below) that no
separate issue arises under these provisions taken together.
47. The applicant now also invokes Article 10 (Art. 10) of the
Convention in relation to the facts submitted in the application.
However, her arguments in this respect are part of and another aspect
of her complaint under Article 8 (Art. 8) of the Convention. A
possible issue under Article 10 (Art. 10) is consequently absorbed by
the wider issue under Article 8 and need not be dealt with separately
(see, mutatis mutandis, Eur. Court H.R., Dudgeon judgment of 22
October 1981, Series 45, p. 26 para. 69).
B. Article 8 (Art. 8) of the Convention
48. 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."
49. As regards compliance with this provision 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, Vol. 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 usally 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 occasioon 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 possibily, 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."
50. 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. In fact, it follows from paragraph 40 of the above-cited
judgment that the Court took into consideration that, at the present
stage of the development in the United Kingdom law, a transsexual is
not recognised in his/her new status, inter alia, as far as marriage,
pension rights and certain employments are concerned. The Court
consequently took into consideration all drawbacks for transsexuals of
the existing legal system. Nevertheless, it considered that "it must,
for the time being, be left to the United Kingdom to determine the
extent to which it can meet the remaining demands of transsexuals"
(loc. cit., para. 47).
C. Conclusion
51. The Commission concludes, by eleven votes to three that there
has been no violation of Article 8 (Art. 8) of the Convention in the
present case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting Opinion of Mr. Ermacora
The Commission, in its report in the Rees case (Application
No. 9532/81), argued that there was, in its opinion, no justification
on any ground of public interest for the failure of the United Kingdom
to recognise the applicant as a man for all social purposes. The
refusal of the Government to amend or annotate the register of births
to record the individual's change of sexual identity would not in
fact be justified on any such ground. The Commission stated, inter
alia, that the medical recognition of the necessity to assist the
applicant 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.
Having regard to the reference in the preamble of the European
Convention to the Universal Declaration of Human Rights of 10 December 1948
which states that all human beings are born free and equal in dignity
and rights (Article 1) and that everyone has the right to recognition
everywhere as a person before the law, I have difficulty in following
the reasoning of the Court in their judgment in the Rees case. In
this case the Court relies mainly on considerations which seem to
disregard the human rights' substance of the case and of similar cases
of this nature. Therefore, I am not in agreement with the majority of
the Commission in merely quoting the judgment of the Court in the Rees
case. I still adhere to the Commission findings in the Rees case
which should also have been followed in the present case.
&_APPENDIX I&S
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
13 September 1983 Introduction of the application
19 September 1983 Registration of the application
Examination of Admissibility
9 May 1984 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
26 June 1984 Government's request to adjourn
consideration of the application,
pending the outcome of the Rees case
4 April 1985 Government renounces submission of
observations in view of the Commission's
Report in the Rees case
5 July 1985 Commission's decision to declare the
application admissible and adjourn its
examination pending the outcome of the
Rees case
Examination of the merits
7 October 1985 Decision on admissibility transmitted
to the parties
9 May 1987 Decision to invite the parties to
submit observations on the merits
16 June 1987 Government's observations on the merits
7 March 1988 Applicant's observations on the merits
20 April 1988 Government's reply
6 May 1988 Commission's consideration of the
state of proceedings
15 December 1988 Commission's deliberations on the
merits, final vote and adoption of
the Report