Information Note on the Court’s case-law No. 91
November 2006
R. and F. v. the United Kingdom (dec.) - 35748/05
Decision 28.11.2006 [Section IV]
Article 8
Article 8-1
Respect for family life
Respect for private life
Husbands undergo gender reassignment surgery following their marriage but are barred by law from obtaining full gender recognition since they wish to remain married: inadmissible
Article 12
Men and women
Husbands undergo gender reassignment surgery following their marriage but are barred by law from obtaining full gender recognition since they wish to remain married: inadmissible
[This summary also covers the Decision of the case Parry v. United Kingdom, no. 42971/05, 28 November 2006]
The applicant couples were married in 1998. The husbands later underwent gender reassignment surgery and now wish to be considered female. The respective couples wish to continue to live as married couples. By the provisions of the Gender Recognition Act 2004, were the husbands single, it would be possible for them to obtain what would be a new birth certificate showing them to be female. In order to obtain this, they would first have to obtain a full Gender Recognition Certificate. It is a condition for issuing a full gender recognition certificate that the recipient not be married. A married applicant who otherwise satisfies the competent panel of the relevant criteria can only be issued with an interim certificate which can be used as grounds for a divorce; upon divorce, an applicant can then apply to have that certificate translated into a full certificate, an essentially automatic process.
The applicant husbands complained principally under Article 8 that they would be forced to divorce their wives in order to obtain proper recognition of their new gender status. They also complained under Article 12 of a violation of their right to marry. The Parry case differed from R. and F. in that it concerned English/Welsh law as opposed to Scots law and in that applicants Parry have (grown-up) children. The Parry couple also have deep religious convictions which include a deep conviction as to the sanctity of marriage. In the R. and F. case the husband F. accepted that it would be possible for her to enter into a civil partnership with R. under the new Civil Partnerships Act 2004. She contended however that such a civil partnership is qualitatively different to a marriage; that it would not prevent the couple having to incur at least some of the costs and trauma of divorce; and that in any event, although such a partnership would offer them the majority of the legal protection offered by a marriage, the protection given is not identical, in particular with regard to their property rights in the event that the partnership does not last.
Inadmissible under Article 8: It fell to be examined by the Court whether the respondent State had failed to comply with a positive obligation to ensure the rights of the applicant husbands through the means chosen to give effect legal recognition to gender re-assignment. The requirement that the applicant husbands divorce flows from the position in domestic law that only persons of the opposite gender may marry; same-sex marriages are not permitted. Were the applicant couples to divorce they could nonetheless continue their relationship in all its current essentials and also give it a legal status akin, if not identical to marriage, through a civil partnership which carries with it almost all the same legal rights and obligations. In conclusion, the effects of the system had not been shown to be disproportionate and a fair balance had been struck in the circumstances.
Inadmissible under Article 12: The applicant couples were lawfully married under domestic law. In seeking to comply with the Court's Grand Chamber judgment in Christine Goodwin v. the United Kingdom (no. 28957/95, ECHR 2002‑VI) in which it had been found that the biological criteria governing the capacity to marry imposed an effective bar on transsexuals' exercise of their right to marry, the legislature had now provided a mechanism whereby a transsexual can obtain recognition in law of the change and thus be able, for the future, to marry a person of the new opposite gender. The legislature was aware of the fact that there were a small number of transsexuals in subsisting marriages but deliberately had made no provision for those marriages to continue in the event that one partner made use of the gender recognition procedure. In domestic law marriage is only permitted between persons of opposite gender, whether such gender derives from attribution at birth or from a gender recognition procedure. Article 12 of the Convention similarly enshrines the traditional concept of marriage as being between a man and a woman. While it is true that there are a number of Contracting States which have extended marriage to same-sex partners, this reflects their own vision of the role of marriage in their societies and does not flow from an interpretation of the fundamental right as laid down by the Contracting States in 1950. The Contracting State could not be required to make allowances for the small number of marriages where both partners wish to continue notwithstanding the change in gender of one of them. It was of some relevance to the proportionality of the effects of the gender recognition regime that the civil partnership provisions allowed such couples to achieve many of the protections and benefits afforded to couples of married status.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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