PROCEDURE

The case originated in an application (no. 32570/03) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Ms Linda Grant (“the applicant”), on 8 October 2003.

The applicant was represented by Ms J. Sawyer, a lawyer working for Liberty, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office, London.

The applicant complained of the lack of legal recognition of her change of gender and the refusal of the Department of Social Security (DSS) to pay her a retirement pension at the age of 60 as was the case for other women. She relied on Article 8 of the Convention and Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 19 May 2005, the Chamber declared the application partly admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

According to the applicant’s birth certificate, she is male. She served in the army for three years from the age of 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, is identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at the female rate (until 1975, when the difference in rates was abolished). In 1972 she became self-employed and started paying into a private pension fund.

By a letter dated 22 August 1997, the applicant applied to the local government benefits office for State pension payments. She wished these to commence on 22 December 1997, her 60th birthday. Her application was refused by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the age of 65, the retirement age applicable to men.

Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which dismissed it on the basis of established case-law. At this time she claimed that she was no longer able to work due to a spinal collapse fracture of osteoporotic origin.

On 1 October 1998 the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but, by a decision of 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the DSS had not entered into an agreement to treat the applicant as a woman.

In the light of the judgments of 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002-VI) and I. v. the United Kingdom ([GC], no. 25680/94), in which the Court found that the Government’s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 2002 asking for her case to be reopened. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted.

On 5 September 2002 the Department for Work and Pensions refused to award the applicant a State pension in light of the judgment in Christine Goodwin.

In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began.

By agreement, her case was adjourned to await the House of Lords judgment in Bellinger v. Bellinger. In that case the claimant, a transsexual, sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By a decision of 10 April 2003, their Lordships, whilst finding the Government’s continuing failure to legislate to be a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy that breach best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost State pension.

On 26 April 2005 the applicant was issued with a Gender Recognition Certificate following her application under the Gender Recognition Act 2004 which had come into force on 1 July 2004 (see paragraphs 30-31 below).