CASE OF B. v. FRANCE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 12 November 1990, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 13343/87) against the French Republic lodged with the Commission under Article 25 (art. 25) by Miss B., a French national, on 28 September 1987.
The applicant (who will be referred to in this judgment in the feminine, in accordance with the sex claimed by her) requested the Court not to disclose her identity.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3 and 8 (art. 3, art. 8) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30).
3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 [*] of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 22 November 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Sir Vincent Evans, Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann, Mr S.K. Martens and Mrs E. Palm (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the French Government ("the Government"), the Delegate of the Commission and the lawyer representing the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the Registrar received Miss B. ’ s memorial on 19 February 1991, the Government ’ s memorial on 21 February 1991 and the written observations of the Delegate of the Commission on 22 April 1991.
5. Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 4 March 1991 that the oral proceedings should open on 25 September 1991 (Rule 38).
6. On 28 June 1991 the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 51).
7. On 19 July the Government submitted supplementary observations, and the Commission produced the file on the proceedings before it, as requested by the Registrar on the President ’ s instructions.
8. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. It was presided over by Mr Cremona, the Vice-President of the Court, replacing Mr Ryssdal, who was unable to take part in the further consideration of the case (Rule 21 para. 5, second sub- paragraph).
There appeared before the Court:
Mr J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
on secondment to the Department of Legal Affairs,
on secondment to the Department of Civil Affairs and the
Seal, Ministry of Justice, Counsel;
at the Conseil d ’ État and Court of Cassation,
Mrs A. Sevaux, avocate, Counsel.
The Court heard addresses by Mr Puissochet for the Government, Mrs Liddy for the Commission and Mr Lyon- Caen and Mrs Fabiani for the applicant, as well as their replies to its questions.
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine.
10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment.
She completed her military service in Algeria, as a man, and her behaviour at the time was noticeably homosexual.
After spending five years teaching reading and writing to young persons from Kabylia, she left Algeria in 1963 and settled in Paris, working in a cabaret under an assumed name.
11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below).
12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused.
B. The proceedings brought by the applicant
1. Before the Libourne tribunal de grande instance
13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court
"to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette".
14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons:
Whereas it is clear from the experts ’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations;
Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes;
Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals;
2. Before the Bordeaux Court of Appeal
15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia:
"... contrary ... to Mr [ B. ’ s ] contention, his present state is not ‘ the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities ’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [ B. ’ s ] biological development.
3. Before the Court of Cassation
16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows:
"This appeal complains that the challenged judgment dismissed the appellant ’ s application for rectification of civil status,
On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘ irreversible necessity, independent of the individual, compels this ’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘ gradually reach the conclusion that the situation is genuine and irreversible ’; that in this case ... ‘ no form of psychological or psychiatric treatment was tried ’; that ‘ the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad ’; that ‘ the apparent change of sex was brought about solely by Mr [ B. ’ s ] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery ’; that, therefore, far from having led to the ‘ disclosure of his hidden true sex ’, the treatment undergone by him indicates a ‘ deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [ B. ’ s ] biological development ’ ...;
Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code.
The applicant ’ s supplementary pleadings opened with the following "introduction":
"The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status.
The solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual.
It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society."
It also included an argument relating to the Convention:
"VI. In the European legal system this argument [accepting the transsexual ’ s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point.
The European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully Belgium had failed to observe the respect due to the applicant ’ s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘ his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an ambiguous being, an appearance ’ ...
This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual [*].
France has expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ..."
17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons:
"Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal;
Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation;
Whereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld;
..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87)
II. RELEVANT DOMESTIC LAW AND PRACTICE
18. No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged.
It has been possible for surgical operations to take place in France since 1979 subject to medical control; before then they were carried out abroad. There is no objection by the National Council of the Medical Association, and the costs of some of these operations are borne by the social security service.
Persons who commit intentional attacks on the physical integrity of a human being are criminally liable, as are their accomplices, but although prosecutions are possible, they are exceptional in cases of transsexualism.
19. Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate: acknowledgement of an illegitimate child (Article 62 of the Civil Code), adoption (Article 354), marriage (Article 75), divorce (Article 1082 of the new Code of Civil Procedure), and death (Article 79 of the Civil Code). Civil status registrars are asked to leave sufficient space for these purposes (section 3 of Decree no. 62-921 of 3 August 1962 amending various regulations relating to civil status).
1. Access to civil status documents
20. Under the first paragraph of section 8 of the Decree of 3 August 1962,
"Civil status registers dating less than one hundred years back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République".
21. However, "the public nature of civil status documents shall be ensured by the issue of full copies or extracts" (same section, second paragraph).
Full copies of a birth certificate can be issued only to the person concerned, his ascendants or descendants, his spouse, his legal representative, the procureur de la République or any person authorised by him (section 9, first and third paragraphs). However, any person can obtain an extract of another person ’ s birth certificate (section 10).
The information which appears on an extract of birth certificate is subject to certain restrictions. Thus in the case of legal adoption, such an extract must not include any reference to the adoption order or the family of origin (section 12).
In addition, the Decree of 26 September 1953 on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies, services and offices or by undertakings, organisations and health insurance institutions under State supervision, extracts of civil status documents shall be replaced by production of a civil status certificate. Such a certificate does not indicate sex.
2. Rectification of civil status documents and change of forenames
22. The following provisions govern the rectification of civil status documents:
"The birth certificate shall state the day, time and place of birth, the sex of the child and the forenames given, the forenames, surnames, ages, occupations and addresses of the father and mother and, if appropriate, those of the person reporting the birth. If either or both of the father and mother of an illegitimate child are not named to the civil status registrar, no mention relating thereto shall be made in the registers.
If the certificate drawn up relates to an illegitimate child, the registrar shall within one month give notice thereof to the judge of the tribunal d ’ instance for the district of the birth.
The forenames of a child appearing on his birth certificate may in the case of a legitimate interest ( intérêt légitime ) be amended by an order of the tribunal de grande instance made on application by the child or, during his minority, on application by his legal representative. The order shall be made and published subject to the conditions provided for in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered."
Article 99 of the Civil Code (as amended by Decree no. 81-500 of 12 May 1981 )
"Rectification of civil status documents shall be ordered by the president of the court.
Rectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court.
An application for rectification may be brought by any person concerned or by the procureur de la République; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place.
The procureur de la République having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents; for this purpose he shall give the relevant instructions directly to those having custody of the registers."
Section 1 of the Law of 6 Fructidor Year II
"No citizen may bear a surname or forename other than those stated in his birth certificate; those who have abandoned them shall be obliged to resume them."
23. A large number of French tribunaux de grande instance (T.G.I.) and courts of appeal (C.A.) have granted applications for amendment of entries in civil status registers relating to sex and forenames (see inter alia T.G.I. Amiens, 4.3.1981; Angoulême, 18.1.1984; Créteil, 22.10.1981; Lyon, 31.1.1986; Montpellier, 6.5.1985; Nanterre, 16.10.1980 and 21.4.1983; Niort, 5.1.1983; Paris, 24.11.1981, 16.11.1982, 9.7.1985 and 30.11.1988; Périgueux, 10.9.1991; Saint-Etienne, 11.7.1979; Strasbourg, 20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A. Agen, 2.2.1983; Colmar, 15.5.1991 and 30.10.1991; Nîmes, 2.7.1984; Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984) or relating to forenames only (T.G.I. Lyon, 9.11.1990; Metz, 6.6.1991; Paris, 30.5.1990; Saint-Etienne, 26.3.1980; C.A. Bordeaux, 18.3.1991). Some of these decisions specified that the amendment of civil status should not have retroactive effect, in order not to affect earlier legal acts or situations. The great majority of them have become final and binding, the prosecutor ’ s office not having exercised its right to appeal.
Contrary rulings have, however, been given by other courts (see inter alia T.G.I. Bobigny, 18.9.1990; Paris, 7.12.1982; C.A. Bordeaux, 13.6.1972 and 5.3.1987; Lyon, 19.11.1987; Nancy, 5.4.1973, 13.4.1977 and 22.4.1982; Nîmes, 10.3.1986, 7.6.1986, 7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988).
24. The Court of Cassation has had occasion to give decisions on this point some twelve times from 1975 to 31 May 1990.
In two judgments of 16 December 1975 (Bull. civ. I, no. 374, p. 312, and no. 376, p. 313; Recueil Dalloz Sirey (D.S.) 1976, p. 397, note Lindon; Juris-Classeur périodique (J.C.P.) 1976, II, 18503, note Penneau ) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone (first judgment), but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war (second judgment).
On 30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984, p. 165, note Edelman; J.C.P. 1984, II, 20222, submissions of Mr Advocate General Sadon ) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report, as "the Court of Appeal [had] found that despite the operations undergone by her, Nadine V. was not of male sex".
Two further judgments were given by the Court of Cassation on 3 and 31 March 1987 (Bull. civ. I, no. 79, p. 59, and no. 116, p. 87; D.S. 1987, p. 445, note Jourdain ). The latter judgment relates to the present case (see paragraph 17 above). In the former, the court had to rule on the position of a transsexual who was married and the father of a child. While acknowledging that genetically he was still a man, the Nîmes Court of Appeal had on 2 July 1984 ordered rectification of his birth certificate and change of forenames. On appeal by the procureur ’ s office the Court of Cassation quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned.
On 7 March 1988 (Bull. civ. I, no. 176, p. 122), 7 June 1988 (Gazette du Palais (G.P.) 7-8 June 1989, jurisprudence, p. 4) and 10 May 1989 (Bull. civ. I, no. 189, p. 125) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only, on the grounds that the Court of Appeal had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on.
On 21 May 1990 the Court of Cassation dealt in the same way with four appeals (J.C.P. 1990, II, 21588, with report by Mr Massip and submissions of Mrs Advocate General Flipo ). It stated in particular that:
"... transsexualism, even where medically acknowledged, cannot be regarded as a true change of sex, as the transsexual, although having lost certain characteristics of his original sex, has not thereby acquired those of the opposite sex; ..."
In the fourth of these appeals the Court of Appeal was criticised for "not having investigated further to see if, in default of rectification of sex, at the very least the substitution of forenames requested ought to have been allowed". The Court of Cassation ’ s response was that the applicant had "before the Court of Appeal requested a change of forenames only as a consequence of the change of sex she was claiming" and that she had "not shown that she had a legitimate interest within the meaning of the third paragraph of Article 57 of the Civil Code in her forenames being amended even if the change of sex were not allowed". The ground of appeal was therefore rejected, as it had not been argued before the court below.
25. As a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc.
However, the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames. This also applies to the "Community" style passports which are gradually replacing "national" passports.
26. The National Institute for Statistics and Economic Studies ( Institut national de la statistique et des études économiques, INSEE) allocates everyone a number. The first digit of the number indicates sex (1 for male sex, 2 for female sex). The number appears in the national identification register of natural persons; the social security bodies use it with additional digits for each person insured.
The right to make use of this number is governed by Law no. 78-17 of 6 January 1978 on data processing, files and civil liberties. Under section 8 of this Law access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the Conseil d ’ Etat issued after consultation with the National Commission on Data Processing and Civil Liberties (Commission nationale de l ’ informatique et des libertés, CNIL). Decree no. 82-103 of 22 January 1982 relating to the said register provides that "with the exception of the cases specifically provided for by law, the register may not be used for the purpose of tracing individuals" (section 7).
In an opinion of June 1981 the CNIL defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it. Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education. On the other hand, it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of the Banque de France. A decree of 11 April 1985 likewise authorised social security institutions to make use of the registration number. The CNIL has also, when various rules were being drawn up relating to employees ’ pay, allowed the number to be used as a means of correspondence with social security bodies.
27. There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix "Madame", "Mademoiselle" or "Monsieur" on cheques, but in practice they are usually included. However, anyone may require that his surname and forenames only be used.
28. Invoices must include the surnames of the persons they concern but need not indicate their sex (section 3 of Order no. 86-1243 of 1 December 1986 ).
PROCEEDINGS BEFORE THE COMMISSION
29. In her application of 28 September 1987 to the Commission (no. 13343/87), Miss B. complained of the refusal of the French authorities to recognise her true sexual identity, in particular their refusal to allow her the change of civil status sought. She relied on Articles 3, 8 and 12 (art. 3, art. 8, art. 12) of the Convention.
30. The Commission declared the application admissible on 13 February 1990, with the exception of the complaint based on Article 12 (art. 12), which it rejected on the grounds of failure to exhaust domestic remedies. In its report of 6 September 1990 (made under Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 (art. 8) (seventeen votes to one) but not of Article 3 (art. 3) (fifteen votes to three).
The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].
31. At the hearing the Government confirmed the submissions in their memorial. They asked the Court to "dismiss the application" on the grounds of failure to exhaust domestic remedies, and "in addition and in any event" as being out of time (Article 26 in fine of the Convention) (art. 26), and "purely in the alternative" as ill-founded.
32. The applicant in her memorial asked the Court to
"- hold that France [had] with respect to her violated the provisions of Article 8 para. 1 (art. 8-1) of the Convention ...;
- order France to pay her the sum of 1,000,000 French francs (FRF) under Article 50 (art. 50) of the Convention ... and the sum of 35,000 FRF for the costs and expenses she [had] been obliged to incur before the Court of Cassation and before the European Commission and Court."
I. THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASE
33. Under Article 26 (art. 26) of the Convention,
"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken."
The Government raised two objections as to admissibility, arguing firstly that domestic remedies had not been exhausted, and secondly that the application was out of time.
A. The Court ’ s jurisdiction to examine the Government ’ s preliminary objections
34. The Commission asked the Court to declare them inadmissible. It was well aware that as from the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971 (Series A no. 12, pp. 29-30, paras. 47-52) the Court had examined preliminary objections raised under Article 26 (art. 26) and had upheld them on occasion (Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, pp. 5-31). It noted, however, that several judges had given dissenting opinions on this point, both at the time (aforesaid judgment of 18 June 1971, pp. 49-58) and in cases since ( Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, pp. 23-28, and Cardot v. France judgment of 19 May 1991, Series A no. 200, pp. 23-24).
It argued that the Court ’ s case-law on this point had two important consequences: it rendered more burdensome the proceedings of the Convention institutions, and created a further lack of equality between governments and applicants, as the latter are not able to appeal against findings of inadmissibility by the Commission.
35. The applicant expressed no opinion. The Government stated that they maintained their objections, in view of the Court ’ s "clear and consistent attitude" on the point.
36. The Court has considered the Commission ’ s reasoning but sees no reason, as matters stand, for abandoning a line of case-law which has been followed constantly for over twenty years and which has found expression in a large number of judgments. It notes in particular that the arguments put forward are substantially the same as those advanced by the Commission in the De Wilde, Ooms and Versyp case (Series B no. 10, pp. 209-213, 214 and 258-263), which were not upheld in the above-mentioned judgment of 18 June 1971.
It therefore considers that it has jurisdiction to examine the Government ’ s preliminary objections.
B. The merits of the Government ’ s preliminary objections
1. The failure to exhaust domestic remedies
37. According to the Government, the applicant should have relied on the Convention before the courts of first instance instead of doing so for the first time in her appeal to the Court of Cassation. As her argument had been raised at such a late stage, it had been inadmissible.
38. The applicant countered that the principle of the prohibition on raising new submissions in the Court of Cassation did not apply to arguments of public policy, pure points of law or arguments which followed from the decision being challenged; moreover, parties were entitled to put forward any new arguments of law. The question whether the reasoning of the Bordeaux Court of Appeal ’ s judgment conflicted with the Convention fell within this category.
39. The Court finds, in agreement with the Commission, that the applicant complained in substance of a violation of her right to respect for her private life before the Libourne tribunal de grande instance and the Bordeaux Court of Appeal (see in particular, mutatis mutandis, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 25-27, paras. 71-72). Admittedly, she did not at that time rely on the Convention, but an express reference thereto was not the only means open to her for achieving the aim pursued; there were numerous decisions of the inferior courts, based on provisions of French law alone, which allowed her to hope that she might win her case (see paragraph 23 above). In this respect her position was different from that of Mr Van Oosterwijck (see the judgment cited above, Series A no. 40, pp. 16-17, paras. 33-34).
Furthermore, the Court of Cassation did not declare the ground of appeal inadmissible on the grounds of novelty, but rejected it as being ill-founded (see paragraph 17 above), as Miss B. has correctly pointed out.
The objection of non-exhaustion of domestic remedies must therefore be dismissed.
2. Whether the application was out of time
40. The Government argued in the alternative that the application had been lodged out of time. In their opinion, the judgment of the Bordeaux Court of Appeal was based solely on questions of fact, so that the appeal to the Court of Cassation had no chance of success in any event. The period of six months mentioned in Article 26 (art. 26) in fine had therefore started to run on 30 May 1985, the date of the said judgment, and the applicant had not complied therewith.
41. Miss B., on the other hand, considered that it was not possible to state a priori that an appeal would be ineffective, on the alleged ground that the courts below had ruled "on the particular facts": the Court of Cassation had jurisdiction to review the correctness of the principles of law applied by the Court of Appeal in declining to take account of a change of sex.
42. The Court notes that the applicant put to the Court of Cassation a point of law relating to Article 8 (art. 8) and founded on the opinion of the Commission in the Van Oosterwijck case (Series B no. 36, pp. 23-26, paras. 43-52). Furthermore, there was no consistent case-law in existence at the time to show in advance that the applicant ’ s appeal was pointless.
An appeal to the Court of Cassation is after all in principle one of the remedies which should be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably destined to fail in the particular case, the bringing of the appeal was thus not futile. It therefore had the effect at the very least of postponing the starting-point of the six-month period.
Accordingly, the objection that the application was out of time must also be dismissed.
A. Alleged violation of Article 8 (art. 8)
43. According to the applicant, the refusal to recognise her true sexual identity was a breach of Article 8 (art. 8) of the Convention, which reads 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."
She argued that by failing to allow the indication of her sex to be corrected in the civil status register and on her official identity documents, the French authorities forced her to disclose intimate personal information to third parties; she also alleged that she faced great difficulties in her professional life.
44. The Court notes first of all 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 (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 14, para. 35, and the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, para. 36), 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 (see in particular the above-mentioned Cossey judgment, p. 15, para. 37).
45. Miss B. argued that it was not correct to consider her application as substantially identical to those of Mr Rees and Miss Cossey previously before the Court.
Firstly, it was based on new scientific, legal and social elements.
Secondly, there was a fundamental difference between France and England in this field, with regard to their legislation and the attitude of their public authorities.
Thus the application of the very criteria stated in the above-mentioned judgments of 17 October 1986 and 27 September 1990 would have led to a finding of a violation by France, as French law, unlike English law, did not even acknowledge the appearance lawfully assumed by a transsexual.
The applicant also invited the Court to develop its analysis further than in the aforesaid two cases. She wished the Court to hold that a Contracting State is in breach of Article 8 (art. 8) if it denies in general fashion the reality of the psycho-social sex of transsexuals.
1. Scientific, legal and social developments
46. (a) The Court said in the Cossey judgment that it "[had] been informed of no significant scientific developments that [had] occurred" since the Rees judgment; "in particular, it remain[ed] the case ... that gender reassignment surgery [did] not result in the acquisition of all the biological characteristics of the other sex" (loc. cit., p. 16, para. 40).
According to the applicant, science appears to have contributed two new elements to the debate on the contrast between appearance (changed somatic sex and constructed gonadal sex) and reality (unchanged chromosomal sex but contrary psycho-social sex) as regards the sex of transsexuals. Firstly, the chromosomal criterion was not infallible (cases of persons with intra-abdominal testicles, so-called testicular feminisation, or with XY chromosomes despite their feminine appearance); secondly, current research suggested that the ingestion of certain substances at a given stage of pregnancy, or during the first few days of life, determined transsexual behaviour, and that transsexualism might result from a chromosome anomaly. There might thus be a physical, not merely psychological explanation of the phenomenon, which would mean that there could be no excuse for refusing to take it into account in law.
(b) As regards the legal aspects of the problem, Miss B. relied on the dissenting opinion of Judge Martens, annexed to the Cossey judgment (Series A no. 184, pp. 35-36, para. 5.5); the differences which still subsisted between the member States of the Council of Europe as to the attitude to be adopted towards transsexuals (ibid., p. 16, para. 40) were counterbalanced to an increasing extent by developments in the legislation and case-law of many of those States. This was supported by resolutions and recommendations of the Assembly of the Council of Europe and the European Parliament.
(c) Finally, the applicant stressed the rapidity of social changes in the countries of Europe, and the diversity of cultures represented by those countries which had adapted their laws to the situation of transsexuals.
47. The Government did not deny that science had in the twentieth century, especially in the last three decades, made considerable advances in the use of sexual hormones and in plastic and prosthetic surgery, and that the question of sexual identity was still in the course of evolution from the medical point of view. Transsexuals nevertheless kept their original chromosomal sex; only their appearance could be changed. But the law should fasten on the reality. Moreover, operations which presented certain dangers should not be trivialised.
National laws were also evolving and many of them had already changed, but the new laws thus introduced did not lay down identical solutions.
In short, things were in a state of flux, legally, morally and socially.
48. The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism.
It notes, however, in the light of the relevant studies carried out and work done by experts in this field, that there still remains some uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which result are moreover extremely complex: anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed); the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation ), and so on. On these various points there is as yet no sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments.
2. The differences between the French and English systems
49. The applicant argued that the lot of transsexuals could be seen to be much harder in France than in England on a number of points. The Commission agreed in substance with this opinion.
50. In the Government ’ s opinion, on the other hand, the Court could not depart in the case of France from the solution adopted in the Rees and Cossey judgments. The applicant might no doubt in the course of her daily life experience a number of embarrassing situations, but they were not serious enough to constitute a breach of Article 8 (art. 8). At no time had the French authorities denied transsexuals the right to lead their own lives as they wished. The applicant ’ s own history was evidence of this, as Miss B. had succeeded in passing as a woman despite her male civil status. Besides, a transsexual who did not want third parties to know his or her biological sex was in a similar situation to that of a person wishing to keep other personal information secret (age, income, address, etc.).
Moreover, as a general consideration, the margin of appreciation allowed to the Contracting States applied both to the choice of criteria for recognition of a change of sex and to the choice of ancillary measures in the event of a refusal of recognition.
51. The Court finds, to begin with, that there are noticeable differences between France and England with reference to their law and practice on civil status, change of forenames, the use of identity documents, etc. (see paragraphs 19-22 and 25 above, to be contrasted with paragraph 40 of the above-mentioned Rees judgment). It will examine below the possible consequences of these differences in the present case from the point of view of the Convention.
( i ) Rectification of civil status documents
52. The applicant considered the rejection of her request for rectification of her birth certificate to be all the more culpable since France could not claim, as the United Kingdom had done, that there were any major obstacles linked to the system in force.
The Court had found, in connection with the English civil status system, that the purpose of the registers was not to define the present identity of an individual but to record a historic fact, and their public character would make the protection of private life illusory if it were possible to make subsequent corrections or additions of this kind (see the above-mentioned Rees judgment, Series A no. 106, pp. 17-18, para. 42). This was not the case in France. Birth certificates were intended to be updated throughout the life of the person concerned (see paragraph 19 above), so that it would be perfectly possible to insert a reference to a judgment ordering the amendment of the original sex recorded. Moreover, the only persons who had direct access to them were public officials authorised to do so and persons who had obtained permission from the procureur de la République; their public character was ensured by the issuing of complete copies or extracts. France could therefore uphold the applicant ’ s claim without amending the legislation; a change in the Court of Cassation ’ s case-law would suffice.
53. In the Government ’ s opinion, French case-law in this respect was not settled, and the law appeared to be in a transitional phase.
54. In the Commission ’ s opinion, none of the Government ’ s arguments suggested that the Court of Cassation would agree to a transsexual ’ s change of sex being recorded in the civil status register. It had rejected the appeal in the present case on the grounds that the applicant ’ s situation derived from a voluntary choice on her part and not from facts which had existed prior to the operation.
55. The Court notes first of all that nothing would have prevented the insertion, once judgment had been given, in Miss B. ’ s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant ’ s present position. Furthermore, numerous courts of first instance and courts of appeal have already ordered similar insertions in the case of other transsexuals, and the procureur ’ s office has hardly ever appealed against such decisions, the great majority of which have now become final and binding (see paragraph 23 above). The Court of Cassation has adopted a contrary position in its case-law, but this could change (see paragraph 24 above).
It is true that the applicant underwent the surgical operation abroad, without the benefit of all the medical and psychological safeguards which are now required in France. The operation nevertheless involved the irreversible abandonment of the external marks of Miss B. ’ s original sex. The Court considers that in the circumstances of the case the applicant ’ s manifest determination is a factor which is sufficiently significant to be taken into account, together with other factors, with reference to Article 8 (art. 8).
56. The applicant pointed out that the law of 6 Fructidor Year II (see paragraph 22 above) prohibited any citizen from bearing a surname or forename other than those recorded on his or her birth certificate. In the eyes of the law, her forename was therefore Norbert; all her identity documents (identity card, passport, voting card, etc.), her cheque books and her official correspondence (telephone accounts, tax demands, etc.) described her by that name. Unlike in the United Kingdom, whether she could change her forename did not depend on her wishes only; Article 57 of the Civil Code made this subject to judicial permission and the demonstration of a "legitimate interest" capable of justifying it (see paragraph 22 above). Miss B. knew of no decision which had regarded transsexualism as giving rise to such an interest. In any event, the Libourne tribunal de grande instance and the Bordeaux Court of Appeal had refused to allow her the forenames Lyne Antoinette (see paragraphs 13-15 above). Finally, the status of informally adopted forenames was highly uncertain.
The Commission agreed in substance with this argument.
57. The Government maintained, on the other hand, that there was ample favourable case-law on the point, supported by the public prosecutor ’ s offices. It merely required that a "neutral" forename such as Claude, Dominique or Camille was chosen; the applicant had, however, requested forenames which were exclusively female.
In addition, many people frequently made use of an informally adopted forename (" prénom d ’ usage ") which differed from that recorded in their birth certificate. The Government conceded, however, that this practice had no legal validity.
58. The judgments supplied to the Court by the Government do indeed show that non-recognition of the change of sex does not necessarily prevent the person in question from obtaining a new forename which will better reflect his or her physical appearance (see paragraph 23 above).
However, this case-law was not settled at the time when the Libourne and Bordeaux courts gave their rulings. Indeed, it does not appear to be settled even today, as the Court of Cassation has apparently never had an occasion to confirm it. Moreover, the door it opens is a very narrow one, as only the few neutral forenames can be chosen. As to informally adopted forenames, they have no legal status.
To sum up, the Court considers that the refusal to allow the applicant the change of forename requested by her is also a relevant factor from the point of view of Article 8 (art. 8).
59. (a) The applicant stressed that an increasing number of official documents indicated sex: extracts of birth certificates, computerised identity cards, European Communities passports, etc. Transsexuals could consequently not cross a frontier, undergo an identity check or carry out one of the many transactions of daily life where proof of identity is necessary, without disclosing the discrepancy between their legal sex and their apparent sex.
(b) According to the applicant, sex was also indicated on all documents using the identification number issued to everyone by INSEE (see paragraph 26 above). This number was used as part of the system of dealings between social security institutions, employers and those insured; it therefore appeared on records of contributions paid and on payslips. A transsexual was consequently unable to hide his or her situation from a potential employer and the employer ’ s administrative staff; the same applied to the many occasions in daily life where it was necessary to prove the existence and amount of one ’ s income (taking a lease, opening a bank account, applying for credit, etc). This led to difficulties for the social and professional integration of transsexuals. Miss B. had allegedly been a victim of this herself. The INSEE number was also used by the Banque de France in keeping the register of stolen and worthless cheques.
(c) Finally, the applicant encountered problems every day in her economic life, in that her invoices and cheques indicated her original sex as well as her surname and forenames.
60. The Commission agreed substantially with the applicant ’ s arguments. In its opinion the applicant, as a result of the frequent necessity of disclosing information concerning her private life to third parties, suffered distress which was too serious to be justified on the ground of respect for the rights of others.
61. The Government replied, to begin with, that certificates of civil status and French nationality, driving licences, voting cards and national identity cards of traditional type did not mention sex.
This was admittedly not the case with the Community passport, but the design of that depended on regulations from Brussels and was thus not a requirement imposed by France. The applicant could in fact enjoy freedom of movement independently of her sexual identity, and some of the examples given by her were of no relevance; thus the report of a road accident or other claim did not require the sex of the insured to be specified.
The INSEE number had been introduced after the second world war for demographic statistical purposes, and was used subsequently for identifying the recipients of French social security benefits. It was hardly ever used apart from this, and did not appear on identity cards, passports or other administrative documents. In any event, the public authorities to which it was communicated were obliged to keep it secret. As for employers, they needed to know it in order to pay a proportion of their employees ’ social security contributions.
In this connection the Government expressed the opinion that if Miss B. had been unable to find paid work outside the entertainment world, there could be many reasons for this apart from her being a transsexual. There were transsexuals who exercised other equally worthy professions. What was more, any discrimination in recruitment based on the sex or morals of the person concerned was an offence under Article 416-1 of the Criminal Code. No transsexual had ever relied on this Article.
There was no reason either why banks should not be asked to print on cheques only the surname and forenames of the drawer without the prefix "M.", "Mme" or "Mlle" (see paragraph 27 above), nor did banks verify that the forenames stated were the same as those recorded in the civil status register. Similarly, invoices did not normally mention the customer ’ s sex or forenames, but only the surname (see paragraph 28 above). There were thus means available to transsexuals for preserving their privacy.
62. The Court is not convinced by this argument. It considers, in agreement with the Commission, that the inconveniences complained of by the applicant in this field reach a sufficient degree of seriousness to be taken into account for the purposes of Article 8 (art. 8).
63. The Court thus reaches the conclusion, on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant ’ s other arguments, that she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State ’ s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above) has not been attained, and there has thus been a violation of Article 8 (art. 8).
The respondent State has several means to choose from for remedying this state of affairs. It is not the Court ’ s function to indicate which is the most appropriate (see inter alia the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 25, para. 58, and the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, para. 26).
B. Alleged violation of Article 3 (art. 3)
64. Before the Commission, Miss B. also claimed that she had been treated by the law in a manner which was both inhuman and degrading within the meaning of Article 3 (art. 3).
She has not repeated this complaint since, and the Court does not consider it necessary to examine the question of its own motion.
III. APPLICATION OF ARTICLE 50 (art. 50)
65. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party".
66. The applicant in the first place claimed 1,000,000 FRF in respect of the pecuniary and non-pecuniary damage she had allegedly suffered. The non-pecuniary damage stemmed from the situation imposed on her by French law; the pecuniary damage resulted from the problems she encountered in her everyday life, due in particular to the fact that she had never been able to find employment for fear of having to disclose the sexual identity appearing in her civil status documents.
In the Government ’ s opinion, she had not established that such damage existed, and the amount claimed was exorbitant. Were the Court to find that there had been a violation of Article 8 (art. 8), the judgment would in itself constitute sufficient just satisfaction.
The Delegate of the Commission expressed no opinion.
67. The Court considers that Miss B. has suffered non-pecuniary damage as a result of the situation found in the present judgment to be contrary to the Convention. Taking a decision on an equitable basis as required by Article 50 (art. 50), it awards her 100,000 FRF under this head.
On the other hand, it dismisses her claims relating to pecuniary damage. The applicant was in employment for a considerable time, and a number of transsexuals have employment in France. Her difficulty in finding work because of having to disclose her circumstances, although real, is therefore not insurmountable.
68. The applicant also claimed 35,000 FRF in respect of the costs and expenses she had incurred before the Court of Cassation (10,000 FRF) and before the Convention institutions (25,000 FRF).
The Government left it to the Court to assess the claim with reference to the criteria laid down in its case-law. The Delegate of the Commission expressed no opinion.
69. On the basis of those criteria, the Court considers that the respondent State must reimburse the applicant the entire amount in question.
1. Holds by sixteen votes to five that it has jurisdiction to examine the Government ’ s preliminary objections;