AS TO THE ADMISSIBILITY OF
Application No. 31177/96
by Theodor (Dora) ROETZHEIM
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1995
by Theodor (Dora) ROETZHEIM against Germany and registered on
25 April 1996 under file No. 31177/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1956, is a German national and resident
in Mülheim.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
I. On 8 April 1994 the Mülheim District Court (Amtsgericht)
dismissed the applicant's request for rectification of his birth
certificate. The Court found that the legal conditions under S. 8 of
the 1980 Transsexuals Act (Transsexuellengesetz) were not met. In this
respect, the Court noted that the applicant was of male somatic sex and
that he was the father of a child. Moreover, he had not undergone
surgical treatment and was still able to procreate. The Court finally
rejected the applicant's argument that S. 8 of the Transsexuals Act was
objectionable from a constitutional point of view.
On 14 November 1994 the Düsseldorf Regional Court (Landgericht)
dismissed the applicant's appeal (Beschwerde). The Regional Court
confirmed the District Court's reasoning. The Court further examined
the applicant's contention that surgical treatment was not necessary
and S. 8 of the Transsexuals Act unconstitutional. The Court
considered that the legal requirement of a surgical treatment might
irritate the applicant, however, there was no violation of his right
to the free development of his personality under Article 2 of the Basic
Law (Grundgesetz). A person's sex was, inter alia, determined by the
outward genital factors and the determination of sex under S. 8 of the
Transsexuals Act could, therefore, depend upon the requirement of
surgical treatment regarding the outward genital factors.
On 26 April 1995 the Düsseldorf Court of Appeal (Oberlandes-
gericht) dismissed the applicant's further appeal.
The Court of Appeal noted that the applicant, born in 1956, had
been married since 1985 and was the father of a child born in 1990.
Divorce proceedings were pending. Since July 1992 the applicant has
adopted a female role. While considering himself psychologically of
the female sex, the applicant refused any gender reassignment surgery.
The Court observed that the applicant himself did not deny that the
conditions under S. 8 of the Transsexuals Act were not met, taking into
account his marriage, his ability to procreate and the refusal of
surgical treatment regarding the outward genital factors.
As regards his contention that the existing legislation was
unconstitutional, the Court of Appeal recalled that this legislation
had been introduced following a decision of the Federal Constitutional
Court (Bundesverfassungsgericht) of 1978 according to which the sex of
transsexuals should be rectified in birth certificates in, according
to medical science, irreversible cases and after gender reassignment
surgery. The legal requirement of such surgical treatment could not,
therefore, be unconstitutional. The existing legal and moral order as
well as social life were based on the principle that a person was
either of male or female sex. Sex was not, therefore, freely at
disposal irrespective of the person's physical appearance, but was
determined by the existing psychological and physical factors. The
Constitution did not require that, in defining sex and recording it in
public registries, the psychological tendencies of the person concerned
should be given priority over the existing physical factors.
On 11 October 1995 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint (Verfassungs-
beschwerde).
The Constitutional Court found that his submissions did not raise
any question of fundamental importance. The legislator was not
required to treat a person, who, according to physical factors, still
belonged to the original sex and was still able to procreate as a
member of this sex, in every respect as a member of the other sex,
corresponding to their psychological situation, including even
permitting the person to enter into a marriage with another person of
the same biological sex. The Constitutional Court recalled that
marriage was the community of a man and a woman. Finally, the
Constitutional Court observed that, in the context of the applicant's
case, it was not called upon to decide whether the legal possibilities
under S. 1 of the Transsexuals Act were sufficient to protect persons
who did not want to undergo gender reassignment surgery against a
disproportionate interference with their personality rights.
II. On 17 July 1996 the Düsseldorf Court of Appeal, upon the appeal
of the applicant's divorced wife, amended the first instance judgment
of the Mülheim District Court of 29 November 1995 and ordered the
applicant to pay maintenance for his child born in 1990, namely monthly
payments of DEM 480 for the period between 1 January 1995 and
30 September 1996 and DEM 600 as from 1 October 1996.
In its reasoning, the Court of Appeal found that, taking into
account the relevant provisions of the Civil Code (Bürgerliches
Gesetzbuch) and on the basis of a notarial agreement concluded in
1992, the applicant was obliged to pay maintenance to his child born
in wedlock. There were no changes in the relevant circumstances
warranting a reduction of the sums which he had accepted to pay.
The Court of Appeal considered in particular that the applicant's
argument that he had given up his previous profession and, as a
transsexual, had meanwhile been working as a cosmetician with a
considerably lower income, did not disclose any relevant change in the
circumstances. In this respect, it recalled that for maintenance
purposes the financial ability of a person liable to pay maintenance
was determined not merely by his actual income, but also by his earning
capacity. Thus a person liable to pay maintenance was under an
obligation to perceive a reasonable income, otherwise he was treated
as if he had in fact the income which he could earn with good will.
Giving up his original profession on account of his transsexual
tendencies could not reduce his maintenance obligations. In this
context, the Court considered that the applicant did not meet the
conditions under the Transsexuals Act, in particular since he had
remarried a woman in 1994 and was the father of a further child. He
could therefore reasonably be expected to take up his former
profession, if need be in male clothing.
On 25 September 1996 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint.
B. Relevant domestic law
The German Transsexuals Act (Gesetz über die Änderung der
Vornamen und die Feststellung der Geschlechtszugehörigkeit in
besonderen Fällen - Transsexuellengesetz) of 1980, as amended, provides
transsexuals with two solutions, namely the change of forenames without
gender reassignment surgery (SS. 1-7) and the amendment of public
registries following such surgical treatment (SS. 8-12).
As to the conditions for the change of forenames, S. 1 para. 1
provides that the forenames of a person who, on account of a
transsexual state, no longer feels himself or herself to belong to the
sex recorded upon birth, but to the opposite sex and has been for three
years under constraint of living with these feelings, shall be changed
by the court, upon request of the person concerned, if, inter alia,
there is a high probability that the feeling of belonging to the other
sex will not change.
As to the conditions for the change of civil status, S. 8 para. 1
provides that, upon request of a person who, on account of a
transsexual state, no longer feels himself or herself to belong to the
sex recorded upon birth, but to the opposite sex and has been for three
years under the constraint of living with these feelings, shall be
changed by the court, upon request of the person concerned, if the
conditions of S. 1 para. 1 are met and if the person concerned is
unmarried, is permanently unable to procreate and has undergone gender
reassignment surgery with the consequence that the outer appearance
resembles closely the phenotype of the opposite sex.
COMPLAINTS
The applicant complains that the requirements under the German
Transsexuals Act for a change of the civil status of transsexuals,
namely the inability to procreate and gender reassignment surgery
amount to a violation of his right to respect for his private life
under Article 8 of the Convention.
In his subsequent submissions, the applicant also submits that
the Düsseldorf Court of Appeal, in obliging him to seek employment even
in a male appearance, further violates his rights as a transsexual.
THE LAW
The applicant complains that the refusal to recognise his female
sexual identity violates his right to respect for his private life, as
guaranteed by Article 8 (Art. 8) of the Convention.
This provision provides as follows:
"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."
The Commission recalls that the notion of "respect" enshrined in
Article 8 (Art. 8) is not clear-cut. This is the case especially where
the positive obligations implicit in that concept are concerned, as in
the instant case (cf. Eur. Court HR, Rees v. the United Kingdom
judgment of 17 October 1986, Series A no. 106, p. 14, para. 35; Cossey
v. the United Kingdom judgment of 27 September 1990, Series A no. 184,
p. 15, para. 36; B. v. France judgment of 25 March 1992, Series A
no. 232-B, p. 47, para. 44), and its requirements will vary
considerably from case to case according to the practices followed and
the situations obtaining in the Contracting States. In determining
whether or not such an obligation exists, regard must be had to the
fair balance that has to be struck between the general interest and the
interests of the individual (Eur. Court HR, Cossey judgment, loc. cit.,
p. 15, para. 37; B. v. France judgment, loc. cit.).
The Commission further observes that transsexualism is not a new
condition, but that 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 usually 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 (Eur. Court HR., Rees judgment, op.
cit., pp. 15-16, para. 38).
In the above-mentioned cases, the Convention organs were faced
with complaints brought by post-operative transsexuals, while the
present case relates to a transsexual refusing gender reassignment
surgery.
The Commission notes that German law offers two possibilities to
meet the demands of transsexuals, namely the change of forenames
pursuant to S. 1 of the Transsexuals Act and the rectification of the
sex recorded upon birth in accordance with S. 8 of the Transsexuals
Act. The conditions are that the transsexual concerned has been living
with these feelings for three years and that there is a high
probability that the feeling of belonging to the other sex will not
change, and, additionally in case of a request for rectification, that
the transsexual concerned is unmarried, is permanently unable to
procreate and has undergone gender reassignment surgery.
The Commission, having regard to the remaining uncertainty as to
the essential nature of transsexualism and the extremely complex legal
situations which result therefrom, finds that the respondent State has
in principle taken appropriate legal measures in this field.
In the present case, the Mülheim District Court dismissed the
applicant's request for acknowledgment as a woman on account of his
refusal to undergo gender reassignment surgery and his continuing
ability to procreate as a man. The Federal Constitutional Court, in
its decision of 11 October 1995, considered in particular that the
legislator was not required to treat persons, who, according to
physical factors, still belonged to the original sex and were still
able to procreate as member of this sex, in every respect as members
of the other sex, corresponding to their psychological situation.
The Commission also notes that, following the dissolution of his
first marriage, the applicant married again in 1994 and had another
child.
In these circumstances the Commission finds that the German court
decisions refusing the applicant's request for acknowledgment as being
of female sex, and rejecting legal arguments drawn from his
transsexualism, do not disclose any appearance of a breach of his
rights under Article 8 (Art. 8) of the Convention.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy