Application No. 11095/84
W.
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 7 March 1989)
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 - 30) .................................... 3
A. The particular circumstances of the case
(paras. 15 - 18) ............................. 3
B. Relevant domestic law and practice
(paras. 19 - 30) ............................. 3
III. OPINION OF THE COMMISSION
(paras. 31 - 43) ..................................... 7
A. Points at issue
(para. 31) ................................... 7
B. Article 8 of the Convention
(paras. 32 - 38) ............................. 7
C. Article 12 of the Convention
(paras. 39 - 41) ............................. 12
D. Recapitulation
(paras. 42 - 43) ............................. 13
Partially dissenting opinion of Mr. Schermers ................ 14
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 17
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 18
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 25 May 1940 and
living in London. She is represented by Messrs. Winstanley-Burgess,
Solicitors in London.
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 the applicant underwent extensive
medical and surgical treatment changing sex from male to female.
5. The applicant complains that under United Kingdom law she
cannot claim full recognition of her changed status and cannot
marry a person of male sex and adopt children with a male partner.
She invokes in particular Articles 8 and 12 of the Convention.
B. The proceedings
6. The application was introduced on 16 August 1984 and
registered on 21 August 1984. On 6 May 1985 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. 18 below), which had been declared admissible on 14 March 1984
and was at the time still pending before the European Court of Human
Rights, the respondent Government stated in a letter of 8 July 1985
that they did not object to the Commission declaring the complaints
under Articles 8 and 12 of the Convention admissible.
7. On 10 October 1985 the Commission declared the application
admissible. It found that the case raised issues under Articles 8 and
12 of the Convention, analogous to those in the Rees case, but not
under Article 3 of the Convention which had also been invoked by the
applicant. The Commission then adjourned the examination of the
application pending the Court's judgment in the Rees case.
8. On 10 December 1986, following the Court's judgment in that
case, the Commission resumed the examination of the present case
and on 9 May 1987 it decided to request the parties to submit such
further observations as they wished to make in the light of that
judgment. The applicant submitted further observations on 25 August 1987,
while the respondent Government stated in a letter of 16 June 1987 that
they saw no necessity to submit supplementary observations. In a
further letter dated 29 September 1987 the Government stated that they
did not wish to reply to the applicant's last submissions.
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
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
M. F. MARTINEZ
Mrs. J. LIDDY
11. The text of this Report was adopted on 7 March 1989 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 Richard Timothy Scott.
Growing up she became more and more aware of the conflict between her
sense of femininity and her male physique. However, influenced by the
attitude of her family she married in 1964 and had two children. The
couple separated in 1967. Subsequently, the applicant started to
undergo hormonal therapy but the social pressure became so great that
she stopped the treatment. She married again and had two more
children by the second wife. The couple separated in 1978 and in the
autumn of 1979 the applicant consulted the gender identity clinic of
Charing Cross Hospital, London. She was prescribed hormone therapy in
preparation for gender reassignment surgery which was performed in
October 1983. Although the applicant had been accepted for National
Health Service surgery, the waiting list obliged her to arrange for
private surgery. The surgical treatment has led to the removal of
masculine external characteristics. The hormone treatment has led to
the appearance of secondary feminine characteristics.
16. The applicant now considers herself a woman and is socially
accepted as such. She adopted a female identity and arranged for
all her documentation to be appropriately adapted. Her National
Health Service medical card, her driving licence and her passport
were altered to show her female identity. The Department of Health
and Social Security informed the applicant in a letter of
22 February 1982 that her records had been changed to a female
title and name but that this change would in no way affect her
liability and her benefit entitlements which remained those of a man.
17. On 10 May 1982 the applicant changed her name by statutory
declaration to Rachel Terry Scott W. The applicant did not apply for
an amendment of her birth register and birth certificate to record the
change in her status from male to female as there is no provision in
the United Kingdom law allowing that such an alteration of the entries
in the register be made (see para. 18 in fine).
18. The above-mentioned case of Rees 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). The applicant in that case was born in 1942 as a child of
female sex and had been recorded in the birth register 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 register.
B. Relevant domestic law and practice
1. Medical treatment
19. 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
20. 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 formalities (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
21. 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
22. 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 1940, 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 succession, 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.
23. 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.
24. 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.
25. 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.
26. 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.
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
27. 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.
28. 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.
29. 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 or she 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
30. 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 had 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 she 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. OPINION OF THE COMMISSION
A. Points at issue
31. The points at issue in the present application are
- whether there has been a violation of the applicant's
right, under Article 8 (Art. 8) of the Convention, to respect
for her private life, in that, under United Kingdom
law, she cannot claim recognition of her present status
by a change of the birth register and the birth
certificate; and
- whether there has been a violation of Article 12 (Art. 12) of
the Convention, in that, under United Kingdom law,
she cannot marry a person of male sex and adopt
children with a male partner.
B. Article 8 (Art. 8) of the Convention
32. 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."
33. The applicant submits that since her application was made she
has become a councillor at the London Borough of Lambeth. During the
course of her electoral campaign for this position she allegedly
suffered vilification in press reports. She considers that, had
her sexual identity been harmonised by law, such prurient interest
in her sexual identity would have been greatly reduced. The applicant
criticises the Court's reasoning in the Rees case. She states that
the applicant in that case required the United Kingdom to pass
legislation to recognise Mr. Rees as a man. Such legislation would
have no effect on the rest of the population apart from the comforting
consideration that they could categorise their fellow citizens into
male and female once more and eliminate the present third category of
ambiguists. Furthermore, the Court's reasoning relating to Mr. Rees'
request that an annotation be made in the birth register about the
change of sex and that this annotation be kept secret from third
parties missed the point. The Court considered that secrecy could
prejudice the purpose and function of the birth register. The
applicant submits that under the present adoption system the public
are not allowed access to a register on which the original particulars
of the adopted persons are recorded. Accordingly, the principle of
public access had already been breached in the interests of social
policies. Further, if the Court considered that the requirement of
access to the register was of critical importance, there was no reason
why it could not have required the endorsement of the change of sex on
the register without the restriction of access to the amended
register. While this solution would not be considered adequate by the
applicant, it would have presented an advance on the present position
in the United Kingdom and would require the authorities to recognise
that something significant had happened to the individual's identity.
34. The applicant further points out that the change of name in
documents such as driving licence and passport has no legal
significance for a person's sexual identity. The documents in
question are documents of description only and not of legal
identity.
35. The respondent Government consider the applicant's criticisms
of the judgment in the Rees case to be ill-founded. It is submitted
that the applicant's assertion that members of the public are not
allowed access to a register in which the original particulars of
adopted persons are recorded is incorrect. The law requires that
certified copies (certificates) be issued from an entry which has been
marked "adopted" to any person who can identify the entry from the
indexes. Thus, access to the original birth record of a person who
has been adopted is no different from any other birth entry.
36. As regards compliance with Article 8 (Art. 8) of the Convention 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 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.
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 occasion 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 possibly, 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."
37. 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 to what
extent it can meet the remaining demands of transsexuals" (loc. cit.,
para. 47).
38. Conclusion
The Commission concludes, by a unanimous vote, that there has
been no violation of Article 8 (Art. 8) of the Convention in the present case.
C. Article 12 (Art. 12) of the Convention
39. Article 12 (Art. 12) of the Convention provides:
"Men and women of marriageable age have the right
to marry and to found a family, according to the
national law governing the exercise of this right."
40. The applicant alleges a violation of this provision because
she cannot marry a man and adopt children with him. She submits that
her case is different from the Rees case as she could consummate
marriage with a man. She considers that the development of the
personality and self-fulfilment through a legally recognised
life-long union are as valid objectives encompassed by the right to
marry as the founding of a family by way of procreation.
As regards compliance with Article 12 (Art. 12) of the Convention by the
United Kingdom in relation to transsexuals, the Commission again
refers to the Rees judgment (loc. cit.), in which the Court stated in
this respect:
"48. The applicant complained of the undisputed fact
that, according to the law currently in force in the United
Kingdom, he cannot marry a woman. He alleged a violation of
Article 12 (Art. 12) , which provides:
...
The Government contested this; the Commission was
divided between two conflicting views.
49. In the Court's opinion, the right to marry
guaranteed by Article 12 (Art. 12) refers to the traditional marriage
between persons of opposite biological sex. This appears
also from the wording of the Article which makes it clear
that Article 12 (Art. 12) is mainly concerned to protect marriage as
the basis of the family.
50. Furthermore, Article 12 (Art. 12) lays down that the exercise
of this right shall be subject to the national laws of the
Contracting States. The limitations thereby introduced must
not restrict or reduce the right in such a way or to such an
extent that the very essence of the right is impaired.
However, the legal impediment in the United Kingdom on the
marriage of persons who are not of the opposite biological
sex cannot be said to have an effect of this kind.
51. There is accordingly no violation in the instant
case of Article 12 (Art. 12) of the Convention."
40. The Commission sees no reason to depart from these findings.
41. Conclusion
The Commission concludes, by 13 votes to 1, that there has been no
violation of Article 12 (Art. 12) of the Convention in the present case.
D. Recapitulation
42. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 8 (Art. 8) of the Convention in the present case
(para. 38).
43. The Commission concludes, by 13 votes to 1, that there has been no
violation of Article 12 (Art. 12) of the Convention in the present case (para.
41).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Dissenting opinion of Mr. H.G. Schermers
In the Rees case (9532/81) which is analogous to the present
one the Commission unanimously found a violation of Article 8 of the
Convention (Eur. Court H.R., judgment of 12 December 1984, Series A,
N° 106, p. 27). The Court, however, found no breach of the Article
in its decision of 17 October 1986 (idem, p. 18).
With respect to Article 8, the Commission considered that the
present application did not reveal any new aspects in the
situation of transsexuals in the United Kingdom which distinguished it
from the situation in the Rees case (para. 37 of the Report). Feeling
obliged to follow the Court's decision in that case it concluded that
there had been no violation of Article 8 of the Convention.
Having regard to the importance of consistency between the
decisions of the Commission and the Court I saw no sufficient ground
for dissenting from that conclusion.
With respect to Article 12, the situation may be different,
however. In the Rees case the Commission found no violation of that
article. With some other members I supported that conclusion for the
following reasons:
"It is true that as things stand the applicant is
legally not entitled to marry a woman. This is, however,
not the result of a specific act on the part of the
respondent Government. It results directly from the fact
that the applicant is not recognised as a 'man', a matter of
which account has already been taken in connection with
Article 8 of the Convention. There is no reason to belive
that once this obstacle has been removed the applicant is
still not able to marry. Both from the applicant's point of
view and that of the respondent Government, the applicant's
complaint based on an alleged violation of Article 12 of the
Convention is thus in the last analysis identical with that
raised under Article 8. What he is complaining of is only
a necessary consequence of the violation of Article 8.
We conclude that there is no separate violation of
Article 12." (Quoted from Eur. Court H.R., Series A. no.
106, p. 27).
In the present case, where no violation of Article 8 has been
found, our opinion as to a possible violation of Article 12 must be
reconsidered.
Article 12 provides that "men and women of marriageable age
have the right to marry and to found a family according to the
individual laws governing the exercise of this right." The Article
contains two (interconnected) rights: the right to marry and the right
to found a family. Unlike Articles 8-11, Article 12 has no second
paragraph providing for interference with these rights by the public
authorities in exceptional circumstances. This underlines the
fundamental character of the right to marry and to found a family. In
principle, these rights cannot be set aside in the public interest,
and there are good reasons for that. The right to live in a family
and - when of marriageable age - to found a family is of paramount
importance for the individual. Denial of this right means
condemnation to solitude and loneliness. There must be strong
arguments to justify such a condemnation.
In my opinion the fundamental human right underlying Article
12 should also be granted to homosexual and lesbian couples. They
should not be denied the right to found a family without good reasons.
That question is not, however, at stake in the present case, which
concerns a person who, psychologically, is a woman, and who feels and
acts like a woman. The Commission, therefore, in ascertaining the
facts, under Article 28 of the Convention, would be entitled to hold
that for the purpose of Article 12 the applicant is a woman and
therefore should have the right to marry a man.
In this respect the Rees judgment of the Court would be no
obstacle. In that case, the Commission did not establish the sex of
the applicant specifically for the purpose of Article 12, as its
decision was founded on Article 8. It is not for the Court to
establish the facts and it did not actually do so in the Rees case.
Its reasoning with respect to Article 12 in that case is very short
(para. 48-51, entirely quoted in para. 40 of the above Report of the
Commission). It concerns only the right to marry, not the right to
found a family. The Court refers (in para 16 of its decision in the
Rees case, Series A. no. 106, p. 9) to the expert opinion of Dr.
Armstrong who mentions four criteria of sex - namely chromosomal sex,
gonadal sex, apparent sex and psychological sex - but in its decision
the Court only mentions "biological sex", without explaining what that
means. All four criteria of sex mentioned by Dr. Armstrong are
biological. In the final part of para. 42 of the Rees judgment (p.
18) the Court seems to accept that biological sex is not the same as
apparent sex, but that it hyas many different characteristics. In the
middle of para. 40 the Court refers to the "biological sex which the
individuals had at the time of their birth", thus implying that the
biological sex may change later. Therefore, the wording used by the
Court in the Rees case does not clearly exclude the marriage of two
persons of opposite pyschological sexes. But even if the Court wished
to express in the latter case that Mr. Rees was not of the male sex -
though referred to by the Court as "Mr" -, that does not prevent the
Commission from concluding that in the present case Mrs. W. is of
female sex, at least with regard to the application of Article 12.
My conclusion, therefore, is that, without contradicting
existing case law, the Commission could have found a violation of
Article 12 of the Convention in respect of the right to marry, and
more particularly in respect of the right to found a family.
So much for my legal reasoning. There is however one further
argument, which concerns the application of the principle of
proportionality, a moral principle which is at the same time one of
the fundamental principles of law. Almost any individual right may be
sacrificed when the higher interests of others or of the community so
require. But the interests involved should be carefully weighed up.
It is with good reason that scales are used as a symbol of justice.
In the present case all the rights and interests should be weighed.
In one pan of the scales we find the fundamental interests of a human
being. The applicant feels so strongly female that she underwent the
enormous inconvenience of an operation and treatment to change her
outward appearance from male to female. She feels strongly feminine
and wants to be a mother. Although she cannot bear children she could
adopt them if she were permitted to found a family. Her right to
family life, her right to play the ultimate feminine role of mother,
is at stake in one pan of the scales. What is there on the other side
to justify denying her that right, to justify ruining a human life?
I find very little on the other side of the scales. It has
been said that public order would be disturbed if persons of the same
sex could found a family. I doubt whether that is a valid argument,
but it is not in issue. The applicant is a woman or at least in many
respects can easily be regarded as a woman. The number of
transsexuals who have undergone operations to change their sex is so
limited that one cannot really expect disturbance of public order if
they are allowed to marry. Others consider that the social purpose of
Article 12 includes the physical capacity to procreate. Traditionally
this may indeed have been one of the purposes of marriage, but it is
not - in any case no longer - its only role in society. Its function
of establishing and preserving the family as the smallest and most
important unit of society is at least equally important. Furthermore,
it would be unacceptable discrimination if only those who are able to
procreate had the right to family life. Is there anything else
weighting on this side of the scales? Administrative difficulties?
More administrative efforts are made for the sake of many less
important human interests. As far as I can see no balance can be
struck between the two pans of the scales, when one contains the most
essential elements of the life of a human being and the other is
practically empty. The flagrant imbalance between the interests
involved is a clear indication that the situation is unsatisfactory.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
16 August 1984 Introduction of the application
21 August 1984 Registration of the application
Examination of admissibility
6 May 1985 Commission's decision to invite
the Government to submit
observations on the admissibility
and merits of the application
8 July 1985 Government renounces submission of
observations in view of the Rees case
10 October 1985 Commission declares the application
admissible and adjourns its
examination of the merits pending the
outcome of the Rees case
Examination of the merits
10 December 1986 Commission's deliberations
9 May 1987 Commission's decision to invite
the parties to submit observations
on the merits in the light of the
Rees judgment
16 June 1987 Government's letter
25 August 1987 Applicant's observations
29 September 1987 Government's letter
6 May 1988 Commission considers state of
proceedings
7 March 1989 Commission's deliberations on the
merits, final vote and adoption of
the Report