AS TO THE ADMISSIBILITY OF
Application No. 22985/93
by Kristina SHEFFIELD
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 September 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
P. LORENZEN
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 4 August 1993 by
Kristina SHEFFIELD against the United Kingdom and registered on
22 November 1993 under file No. 22985/93;
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 24 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1946 and resident in
London. She is represented before the Commission by Henri Brandman &
Co., solicitors practising in London. The facts as submitted by the
parties may be summarised as follows.
A. Particular circumstances of the case
The applicant at birth in 1946 was registered as being of the
male sex. In 1986, the applicant began treatment at a gender identity
clinic and on a date unspecified, underwent sex re-assignment surgery
and treatment. She changed her name. This change of name was recorded
on her passport and driving licence. Her birth certificate continues
to record her original name and gender.
The applicant was divorced from her spouse at or around that
time. She states that she was informed that she was required to obtain
a divorce as a pre-condition to surgery being carried out. Following
the divorce, the applicant's ex-wife applied to the court to terminate
the applicant's access to her daughter. The applicant states that the
judge granted the application on the basis that contact with a
transsexual would not be in the child's interests. The applicant has
not seen her daughter since then, a period of more than eight years.
On 7 and 16 April 1992, the applicant attended court to stand
surety in the sum of £ 2000 for a friend. On both occasions she was
required to disclose to the court her previous name.
In June 1992, the applicant was arrested for breach of fire-arms
regulations. The charges were dropped when it was established that the
pistol was a replica. Following comments of police officers indicating
that they were aware that the applicant had undergone a sex-change
operation, the applicant sought to discover whether these personal
details were held on police computer files. She discovered that the
official request for information made under the data protection
provisions required her to state her sex and other names. She did not
pursue the enquiry.
On 20 December 1992, the applicant entered into an insurance
contract in respect of her car. The form which she was required to fill
in as the basis of the contract required her to state her sex. As under
United Kingdom law she continues to be regarded a male she was obliged
to give her sex as male.
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 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.
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 that the State refuses to recognise her
as a woman and requires her to declare herself to be a man when, for
example, entering into contracts or appearing in a court of law. She
complains also that at the same time she was coerced by underhand
methods into divorcing and giving up her daughter eight years before.
She complains that these matters disclose a lack of respect for her
private and family life contrary to Article 8 of the Convention.
The applicant complains of being unable to change her birth
certificate. She submits that procedures to do this existed in the
United Kingdom and were used by transsexuals until the State wilfully
used dicta from the case CORBETT v. CORBETT (1971 Probate R. 83) to
alter its administrative practice and to accept only biological
criteria in determining legal sex. The applicant submits that the
United Kingdom misled the Court in the REES and COSSEY cases as to the
state and development of the law (Eur. Court H.R., Rees judgment of
17 October 1986, Series A No. 106 and Cossey judgment of
27 September 1990, Series A No. 184) and that it continues to rely on
outdated biological criteria in disregard of current medical and
scientific findings concerning the transsexualism.
The applicant complains that as a transsexual she is prohibited
from marrying a man contrary to Article 12 of the Convention.
The applicant further complains that she is open to
discrimination both at work and in public as a transsexual. She states
that she is under a constant threat of abuse and physical violence and
that there is no protection in law for transsexuals against
discrimination. She invokes Article 14 of the Convention in this
respect.
The applicant submits in addition that she has no effective
remedy for her complaints as required by Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 August 1993 and registered
on 22 November 1993.
On 4 July 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 two extensions of the time-limit fixed for that
purpose. The applicant replied on 24 April 1995, also after an
extension of the time-limit.
On 20 January 1995, the Commission granted the applicant legal
aid.
THE LAW
1. The applicant complains that the State refuses to recognise her
status as a woman contrary to her right to respect for private life,
that as a male-to-female transsexual, she is unable to marry a man
under United Kingdom law, that she suffers discrimination and that she
has no effective remedy for these complaints.
She invokes the following provisions 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."
Article 13 (Art. 13) of the Convention
"Everyone whose rights and freedoms as set forth in this
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 Commission has had regard to the observations submitted by
the parties. It considers that these complaints raise issues of law and
fact under the Convention, which require further examination. The
Commission therefore decides to invite the parties to submit further
observations orally at a hearing on admissibility and merits pursuant
to Article 50 (b) (Art. 50-b) of the Convention and accordingly to
adjourn this part of the application.
2. The applicant also complains of being coerced by underhand
methods into divorcing and being prevented from having contact with her
daughter.
The Commission notes that the divorce and decision regarding
contact took place in or about 1987. Assuming that the applicant has
exhausted the domestic remedies available to her in respect of these
matters, the Commission finds that the decisions of which she complains
took place more than six months before the introduction of her
complaints to the Commission on 4 August 1993. She has therefore failed
to comply with the six month time-limit imposed by Article 26 (Art. 26)
of the Convention. Furthermore, an examination of the case does not
disclose the existence of any special circumstances which might have
interrupted or suspended the running of that period. It follows that
this aspect of the case has been introduced out of time and must be
rejected pursuant to Article 27 para. 3 (Art. 27-3).
For these reasons, the Commission,
by a majority,
DECIDES TO ADJOURN the examination of the applicant's complaints
relating to the lack of respect for her private life, inability
to marry, discrimination and failure to provide an effective
remedy;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy