Information Note on the Court’s case-law
August 1998
Sheffield and Horsham v. the United Kingdom - 22985/93 and 23390/94
Judgment 30.7.1998 [GC]
Article 8
Article 8-1
Respect for private life
Whether respondent State has a positive obligation to recognise for legal purposes new sexual identities of applicants, both male to female post-operative transsexuals
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-law Information Note summaries.]
I.ARTICLE 8 OF THE CONVENTION
Reiteration of Court’s case-law on scope of positive obligations under Article 8 to protect right to respect for private life.
Essence of applicants’ complaints concerns authorities’ continuing insistence on determination of gender according to biological criteria and refusal to annotate or update information inscribed on register of birth to take account of post-operative gender status – in that respect, applicants’ complaints similar to those of applicants in Rees and Cossey cases.
In Court’s view, no scientific or legal developments in area of transsexualism since Cossey judgment which would persuade it to depart from its decisions in above cases – respondent State still entitled to rely on a margin of appreciation to defend its refusal to recognise in law post-operative transsexuals’ sexual identity – for Court, it continues to be case that transsexualism raises complex, scientific, legal, moral and social issues in respect of which there is no generally shared approach among Contracting States.
Furthermore, detriment suffered by applicants through being obliged to disclose pre-operative gender in certain contexts not of sufficient seriousness as to override respondent State’s margin of appreciation – situations relied on by applicants to illustrate detriment infrequent and requirement to disclose pre-operative gender in such situations justified – authorities have also sought to minimise intrusive enquiries as to applicants’ pre-operative status – no disproportionate interference with applicants’ rights to respect for their private lives.
Court notes that no steps taken by respondent State to keep need for appropriate legal measures in this area under review despite Court’s view to that effect in Rees and Cossey judgments – Court reiterates that view.
Conclusion: no violation (eleven votes to nine).
II.ARTICLE 12 OF THE CONVENTION
Reiteration of principles laid down in Court’s Rees judgment on scope and interpretation of Article 12.
Having regard to those principles, inability of either applicant to contract lawful marriage under domestic law of respondent State on account of authorities’ insistence on biological criteria for determining gender for purposes of marriage cannot give rise to breach of that Article – furthermore, Court not persuaded that second applicant’s complaint raises issues under that Article.
Conclusion: no violation (eighteen votes to two).
III.ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8
Reiteration of principles underlying Article 14.
Court’s reasoning for rejecting applicants’ complaints under Article 8 (fair balance struck, proportionality of interference) also constitutes “reasonable and objective justification” for any alleged difference in treatment to which applicants, as post-operative transsexuals, subjected.
Conclusion: no violation (unanimously).
IV.ARTICLE 13 OF THE CONVENTION
Applicants stated they did not wish to pursue complaints.
Conclusion: not necessary to examine complaints (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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