CASE OF SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM

1. The case was referred to the Court as two separate cases (Sheffield v. the United Kingdom and Horsham v. the United Kingdom) by the European Commission of Human Rights (“the Commission”) on 4 March 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The case of Sheffield v. the United Kingdom originated in an application (no. 22985/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by Miss Kristina Sheffield, a British national, on 4 August 1993. The case of Horsham v. the United Kingdom originated in an application (no. 23390/94) lodged against the same Contracting State on the same date by Miss Rachel Horsham, also a British national.
The Commission’s requests referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the requests was to obtain a decision as to whether the facts of the cases disclosed a breach by the respondent State of its obligations under Articles 8, 12, 13 and 14 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).
3. On 19 March 1997 the then President of the Court, Mr R. Ryssdal, decided, under Rule 21 § 7 and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider both cases simultaneously, without prejudice to the joinder of the cases at a later stage.
4. The Chamber to be constituted for that purpose (Rule 21 § 7) included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Bernhardt, the then Vice ‑ President of the Court (Rule 21 § 4 (b)). On 19 March 1997, in the presence of the Registrar, the President of the Court drew by lot the names of the other seven members, namely, Mr J. De Meyer, Mr N. Valticos, Mrs E. Palm, Mr A.N. Loizou, Mr J. Makarczyk, Mr K. Jungwiert and Mr T. Pantiru (Article 43 in fine of the Convention and Rule 21 § 5).
5. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 22 October and 24 October 1997 respectively.
6. On 28 May 1997 the President of the Chamber had granted Liberty, a non-governmental organisation based in London, leave to submit written observations on the case (Rule 37 § 2). These were received on 27 October 1997 and communicated to the applicants, the Agent of the Government and the Delegate of the Commission for comments. The applicants submitted their comments on Liberty’s observations by letter received at the registry on 30 January 1998.
7. In accordance with the President’s decision, the joint hearing of both cases took place in public in the Human Rights Building, Strasbourg, on 24 February 1998. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the GovernmentMs S. McCrory, Foreign and Commonwealth Office, Agent, Mr D. Pannick QC, Mr R. Singh, Barrister-at-Law, Counsel, Mr J. Talbot, Ms C. Lloyd, Ms R. Sandby-Thomas, Advisers;
(b) for the CommissionMrs G.H. Thune, Delegate;
(c) for the applicantsMr P. Duffy QC, Mr A. McFarlane, Barrister-at-Law, Mr T. Eicke, Barrister-at-Law, Counsel, Mr H. Brandman, Solicitor.
The Court heard addresses by Mrs Thune, Mr Duffy, Mr McFarlane and Mr Pannick.
8. Following deliberations on 2 March 1998 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 § 1).
9. The Grand Chamber to be constituted included ex officio Mr Bernhardt, the Vice-President of the Court, together with the other members and the four substitutes of the original Chamber, the latter being Mr P. van Dijk, Mr V. Butkevych, Mr J. Casadevall and Mr A. Spielmann (Rule 51 § 2 (a) and (b)). On 2 March 1998 the Vice-President, in the presence of the Registrar, drew by lot the names of the eight additional judges needed to complete the Grand Chamber, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr B. Walsh, Mr J.M. Morenilla, Mr L. Wildhaber, Mr P. Kūris, Mr E. Levits and Mr M. Voicu (Rule 51 § 2 (c)). Mr M.A. Lopes Rocha subsequently replaced Mr Walsh following the latter’s death (Rule 24 § 1 in conjunction with Rule 51 § 6). At a later stage, Mr Levits was unable to take part in the further consideration of the case and was not replaced.
10. Having taken note of the opinions of the Agent of the Government, the Delegate of the Commission and the applicants, the Grand Chamber decided on 25 April 1998 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the original Chamber (Rule 40 in conjunction with Rule 51 § 6).
11. On 25 April 1998 the Grand Chamber ordered the joinder of the two cases (Rule 39 § 3 in fine ).
A. The first applicant, Miss Sheffield
12. The first applicant, Miss Kristina Sheffield, is a British citizen born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender reassignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved.
13. In 1986 the first applicant began treatment at a gender identity clinic in London and, on a date unspecified, successfully underwent sex reassignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence.
14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex.
15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out. Following the divorce, the applicant’s former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child’s interests. The applicant has not seen her daughter since then, a period of some twelve years.
16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social- security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States embassy in London.
17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of 2,000 pounds for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate.
18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex-change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry.
19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male.
She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction.
20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State.
B. The second applicant, Miss Horsham
21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Netherlands citizenship by naturalisation in September 1993.
The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female.
22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam.
23. On 26 June1992, following earlier refusals, she applied to the British consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Netherlands courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British consulate issued a new passport to the applicant recording her new name and her sex as female.
24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate.
25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage whether that marriage “took place in the Netherlands or elsewhere”.
ii. Relevant domestic law and practice
26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.
B. Marriage and definition of gender in domestic law
27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen’s Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.
Under section 11(b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice Ormrod).
28. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that 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. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.
29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.
30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. 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.
31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
D. Social security, employment and pensions
32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male-to-female transsexual will accordingly only be entitled to a State pension at the State retirement age of 65 and not the age of 60 which is applicable to women.
33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that
“... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)
34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 ( Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).
35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender reassignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person’s birth certificate in one form or another to reflect the re-assigned sex of that person.
PROCEEDINGS BEFORE THE COMMISSION
36. Miss Sheffield applied to the Commission on 4 August 1993. She alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 8, 12 and 14 of the Convention and that she had no effective remedy in respect of her complaints, in breach of Article 13. She also complained that she was coerced by underhand methods into divorcing and is prevented from having contact with her daughter.
The Commission declared the application (no. 22985/93) admissible on 19 January 1996 with the exception of her complaint regarding her divorce and contact with her daughter which had been declared inadmissible on 4 September 1995 for failure to comply with the six-month time-limit under the Convention. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that the applicant’s complaint under Article 12 of the Convention did not give rise to any separate issue (nine votes to seven); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).
37. In her application to the Commission lodged on 4 August 1993, Miss Horsham alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 3, 8, 12, 13 and 14 of the Convention as well as of Article 3 of Protocol No. 4 in relation to alleged constructive expulsion from the respondent State.
The Commission declared the application (no. 23390/94) admissible on 19 January 1996 with the exception of her complaints under Article 3 of the Convention and Article 3 of Protocol No. 4 which had been declared inadmissible on 4 September 1995. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that her complaint under Article 12 of the Convention did not give rise to any separate issue (ten votes to six); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).
38. The full text of the Commission’s opinions in the two cases and of the dissenting opinions contained in the reports is reproduced as an annex to this judgment [3].
39. The applicants in their joint memorial requested the Court to decide and declare that the facts of the case disclose a breach of their rights under Article 8 of the Convention and/or Article 14 in conjunction with Article 8, and to award them just satisfaction under Article 50.
The Government requested the Court in their memorial to decide and declare that the facts disclose no breach of the applicants’ rights.
I. Alleged violation of Article 8 of the Convention
40. The applicants complained that the failure of the respondent State to recognise in law that they were of the female sex constituted an interference with their rights to respect for their private lives guaranteed under Article 8 of the Convention, which 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.”
41. The Commission accepted the applicants’ submissions. The Government contended that there had been no violation of Article 8 in the circumstances of the case.
1. Arguments of those appearing before the Court
42. The applicants stated that under English law they continue to be regarded as being of the male sex and to suffer prejudice on that account. The failure to give legal recognition to their new gender has serious consequences for the way in which they conducted their lives, compelling them to identify themselves frequently in public contexts in a gender which they had renounced. This was a matter of profound hurt and distress and an affront to their dignity. Miss Sheffield’s experiences (see paragraphs 16–20 above) provided a convincing account of the extreme disadvantages which beset post-operative transsexuals and of how the current legal situation operated to the detriment of their privacy and even exposed them to the risk of penalties for the offence of perjury. For her part, Miss Horsham claimed that she had had to abandon her residence in the United Kingdom in order to avoid the difficulties which she encountered there as a transsexual.
43. They contended that the law of the respondent State continued to be based on a restrictive and purely biological approach to the determination of an individual’s gender (see paragraphs 27 and 29 above). In their view, the conclusive nature of that approach should now be reviewed in light of recent medical research findings which demonstrated convincingly that the sex of a person’s brain is also to be considered one of the decisive indices of his or her gender. According to Professor L.J.G. Gooren, a distinguished and recognised authority on this subject, the brain’s ability to differentiate between the male and female sex occurs when an individual is between 3 and 4 years old. A problem arises if the brain differentiates sex in a manner which is contradictory to the nature of the external genitalia. This dysfunction explains the feelings which transsexuals like the applicants have about their bodies.
44. The continued insistence in English law on the use of purely biological criteria for the determination of gender meant that they were unable to have the register of births amended to record their post-operative gender. The applicants challenged the official view that it was impossible to amend or update the facts contained in the register save for cases of clerical or factual error. They pointed to instances where the register had been amended to take account of a person’s change of sex and reasoned that if it were possible to update the register in cases of adoption it should also be feasible to do so in respect of gender reassignment.
45. The applicants recalled that the Court in its Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106, pp. 18–19, § 47) had stated that the respondent State should keep the need for appropriate legal measures in the area of transsexualism under review having regard in particular to scientific and societal developments. The Court reiterated that view in its Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184, p. 17, § 41). Notwithstanding new medical findings on the cause of transsexualism (see paragraph 43 above) and the increased legal recognition of a transsexual’s post-operative gender at the level of the European Union and in the member States of the Council of Europe (see paragraphs 33–35 above), the respondent State has still not reviewed its domestic law in this area.
46. The Government replied that Article 8 of the Convention does not require a Contracting State to recognise generally for legal purposes the new sexual identity of an individual who has undergone gender reassignment surgery. With reference to the above-mentioned Rees and Cossey judgments, they pleaded that a Contracting State properly enjoys a wide margin of appreciation in respect of its positive obligations under Article 8, especially so in the area of transsexualism where there is no sufficiently broad consensus within the member States on how to address the complexity of the legal, ethical, scientific and social issues which arise. They argued that Professor Gooren’s research findings on the notion of a person’s psychological sex (see paragraph 43 above) cannot be considered conclusive of the issue and required further verification (see, for example, S.M. Breedlove’s article in Nature, vol. 378, p. 15, 2 November 1995); nor was the applicants’ reliance on the European Court of Justice’s ruling in P. v. S. and Cornwall County Council of support to their case that a European-wide consensus existed on the need to give legal recognition to the situation of transsexuals. That case was not concerned with the legal status of transsexuals. Moreover, much of the comparative material submitted by Liberty had already been considered by the Court at the time of its judgment in the Rees case.
47. The Government further submitted that the applicants had not adduced any evidence of having suffered any substantial practical detriment on a day-to-day basis which would suggest that the authorities had exceeded their margin of appreciation. The applicants are only obliged to reveal their pre-operative gender on rare occasions and only when it is justified to do so. Further, to allow the applicants’ birth certificates to be altered so as to provide them with official proof of their new sexual status would undermine the function of the register of births as a historical record of fact; nor could the civil liberties implications of allowing a change of sex to be entered on the register be discounted.
48. In view of these considerations, the Government maintained that any inconvenience which the applicants may suffer is not such as to upset the fair balance which must be struck between the general interests of the community and their individual interests.
49. The Commission considered that the applicants, even if they do not suffer daily humiliation and embarrassment, are nevertheless subject to a real and continuous risk of intrusive and distressing enquiries and to an obligation to make embarrassing disclosures. Miss Sheffield’s case showed that this risk was not theoretical.
50. The Commission had regard in particular to the clear trend in European legal systems towards legal acknowledgment of gender reassignment. It also found it significant that the medical profession has reached a consensus that transsexualism is an identifiable medical condition, gender dysphoria, in respect of which gender reassignment treatment is ethically permissible and can be recommended for improving the quality of life and, moreover, is State-funded in certain member States. In view of these developments, the Government’s concerns about the difficulties in assimilating the phenomenon of transsexualism readily into existing legal frameworks cannot be of decisive weight. In the view of the Commission, appropriate ways could be found to provide for transsexuals to be given prospective legal recognition of their gender reassignment without destroying the historical nature of the register of births. The Commission considered that the concerns put forward by the Government, even having regard to their margin of appreciation in this area, were not sufficient to outweigh the interests of the applicants and for that reason there had been a violation of Article 8 of the Convention.
51. The Court observes that it is common ground that the applicants’ complaints fall to be considered from the standpoint of whether or not the respondent State has failed to comply with a positive obligation to ensure respect for their rights to respect for their private lives. It has not been contended that the failure of the authorities to afford them recognition for legal purposes, in particular by altering the register of births to reflect their new gender status or issuing them with birth certificates whose contents and nature differ from the entries made at the time of their birth, constitutes an “interference”.
Accordingly, as in the above-mentioned Rees and Cossey cases, the issue raised by the applicants before the Court is not that the respondent State should abstain from acting to their detriment but that it has failed to take positive steps to modify a system which they claim operates to their prejudice. The Court will therefore proceed on that basis.
52. The Court reiterates that the notion of “respect” is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see the above-mentioned Rees judgment, p. 15, § 37; and the above-mentioned Cossey judgment, p. 15, § 37).
53. It is to be noted that in applying the above principle in both the Rees and Cossey cases, the Court concluded that the same respondent State was under no positive obligation to modify its system of birth registration in order to allow those applicants the right to have the register of births updated or annotated to record their new sexual identities or to provide them with a copy birth certificate or a short-form certificate excluding any reference to sex at all or sex at the time of birth.
Although the applicants in the instant case have formulated their complaints in terms which are wider than those invoked by Mr Rees and Miss Cossey since they contend that their rights under Article 8 of the Convention have been violated on account of the failure of the respondent State to recognise for legal purposes generally their post-operative gender, it is nonetheless the case that the essence of their complaints concerns the continuing insistence by the authorities on the determination of gender according to biological criteria alone and the immutability of the gender information once it is entered on the register of births.
54. The Government have relied in continuing defence of the current system of births registration on the general interest grounds which were accepted by the Court in its Rees and Cossey judgments as justification for preserving the register of births as a historical record of facts subject neither to alteration so as to record an entrant’s change of sex nor to abridgement in the form of an extract containing no indication of the bearer’s registered gender (see, in particular, the Cossey judgment, pp. 15–16, §§ 38 and 39), as well as to the wide margin of appreciation which they claim in respect of the treatment to be accorded in law to post-operative transsexuals. It is the applicants’ contention that that defence is no longer tenable having regard to significant scientific and legal developments and to the clear detriment which the maintenance in force of the current system has on their personal situation, factors which, in their view, tilt the balance away from public-interest considerations in favour of the need to take action to safeguard their own individual interests.
55. The Court notes that in its Cossey judgment it considered that there had been no noteworthy scientific developments in the area of transsexualism in the period since the date of adoption of its Rees judgment which would compel it to depart from the decision reached in the latter case. This view was confirmed subsequently in the Court’s B. v. France judgment of 25 March 1992 (Series A no. 232-C) in which it observed that there still remained uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned (p. 49, § 48). As to legal developments occurring since the date of the Cossey judgment, the Court in the B. case stated that there was, as yet, no sufficiently broad consensus among the member States on how to deal with a range of complex legal matters resulting from a change of sex.
56. In the view of the Court, the applicants have not shown that since the date of adoption of its Cossey judgment in 1990 there have been any findings in the area of medical science which settle conclusively the doubts concerning the causes of the condition of transsexualism. While Professor Gooren’s research into the role of the brain in conditioning transsexualism may be seen as an important contribution to the debate in
this area (see paragraph 43 above), it cannot be said that his views enjoy the universal support of the medico-scientific profession. Accordingly, the non-acceptance by the authorities of the respondent State for the time being of the sex of the brain as a crucial determinant of gender cannot be criticised as being unreasonable. The Court would add that, as at the time of adoption of the Cossey judgment, it still remains established that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex despite the increased scientific advances in the handling of gender reassignment procedures.
57. As to legal developments in this area, the Court has examined the comparative study which has been submitted by Liberty (see paragraph 35 above). However, the Court is not fully satisfied that the legislative trends outlined by amicus suffice to establish the existence of any common European approach to the problems created by the recognition in law of post-operative gender status. In particular, the survey does not indicate that there is as yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection, or the circumstances in which a transsexual may be compelled by law to reveal his or her pre-operative gender.
58. The Court is accordingly not persuaded that it should depart from its Rees and Cossey decisions and conclude that on the basis of scientific and legal developments alone the respondent State can no longer rely on a margin of appreciation to defend its continuing refusal to recognise in law a transsexual’s post-operative gender. For the Court, it continues to be the case that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States (see the X, Y and Z v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, p. 635, § 52).
59. Nor is the Court persuaded that the applicants’ case histories demonstrate that the failure of the authorities to recognise their new gender gives rise to detriment of sufficient seriousness as to override the respondent State’s margin of appreciation in this area (cf. the above-mentioned B. v. France judgment). It cannot be denied that the incidents alluded to by Miss Sheffield were a source of embarrassment and distress to her and that Miss Horsham, if she were to return to the United Kingdom, would equally run the risk of having on occasion to identify herself in her pre-operative gender. At the same time, it must be acknowledged that an individual may with justification be required on occasion to provide proof of gender as well as medical history. This is certainly the case of life assurance contracts which are uberrimae fidei. It may possibly be true of motor insurance where the insurer may need to have regard to the sex of the driver in order to make an actuarial assessment of the risk. Furthermore, it would appear appropriate for a court to run a check on whether a person has a criminal record, either under his or her present name or former name, before accepting that person as a surety for a defendant in criminal proceedings. However, quite apart from these considerations the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives. The Court observes also that the respondent State has endeavoured to some extent to minimise intrusive enquiries as to their gender status by allowing transsexuals to be issued with driving licences, passports and other types of official documents in their new name and gender, and that the use of birth certificates as a means of identification is officially discouraged (see paragraphs 26 and 31 above).
60. Having reached those conclusions, the Court cannot but note that despite its statements in the Rees and Cossey cases on the importance of keeping the need for appropriate legal measures in this area under review having regard in particular to scientific and societal developments (see, respectively, pp. 18–19, § 47, and p. 41, § 42), it would appear that the respondent State has not taken any steps to do so. The fact that a transsexual is able to record his or her new sexual identity on a driving licence or passport or to change a first name are not innovative facilities. They obtained even at the time of the Rees case. Even if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States.
61. For the above reasons, the Court considers that the applicants have not established that the respondent State has a positive obligation under Article 8 of the Convention to recognise in law their post-operative gender. Accordingly, there is no breach of that provision in the instant case.
II. Alleged violation of Article 12 of the ConventiON
62. The applicants submitted that any marriage which a male-to-female post-operative transsexual contracted with a man would be void under English law having regard to the fact that a male-to-female transsexual is still considered for legal purposes as male. While they addressed the prejudice which they suffered in respect of their right to marry in the context of their more general complaint under Article 8 of the Convention, before the Commission they relied on Article 12 of the Convention, which provides:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
63. Miss Horsham stated in particular that she intended to marry her male partner in the Netherlands, where the validity of her marriage would be recognised. However, she feared that she would be unable to settle subsequently in the United Kingdom since it was doubtful whether the English courts would recognise the validity of the marriage. This situation meant that she would have to live her married life in forced exile outside the United Kingdom.
64. The Government contended that there was no breach of the applicants’ rights under Article 12 of the Convention and requested the Court to endorse this view on the basis of the reasoning which led it to conclude in the above-mentioned Rees and Cossey cases that there had been no breach of that provision. As to Miss Horsham’s situation, the Government further submitted that she had never sought to test the validity of her proposed marriage, which might well be recognised by the English courts in application of the rules of private international law. She must be considered to have failed to exhaust domestic remedies in respect of this complaint.
65. The Commission found that the applicants’ allegations gave rise to no separate issue having regard to the substance of their complaints under Article 8 of the Convention.
66. The Court recalls that the right to marry guaranteed by Article 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 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 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 (see the above-mentioned Rees judgment, p. 19, §§ 49 and 50).
67. The Court recalls further that in its Cossey judgment it found that the attachment to the traditional concept of marriage which underpins Article 12 of the Convention provides sufficient reason for the continued adoption by the respondent State of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry (p. 18, § 46).
68. In light of the above considerations, the Court finds that the inability of either applicant to contract a valid marriage under the domestic law of the respondent State having regard to the conditions imposed by the Matrimonial Causes Act 1973 (see paragraph 27 above) cannot be said to constitute a violation of Article 12 of the Convention.
69. The Court is not persuaded that Miss Horsham’s complaint raises an issue under Article 12 which engages the responsibility of the respondent State since it relates to the recognition by that State of a post-operative transsexual’s foreign marriage rather than the law governing the right to marry of individuals within its jurisdiction. In any event, this applicant has not provided any evidence that she intends to set up her matrimonial home in the United Kingdom and to enjoy married life there. Furthermore, it cannot be said with certainty what the outcome would be were the validity of her marriage to be tested in the English courts.
70. The Court concludes that there has been no violation of Article 12.
III. Alleged violation of Article 14 of the Convention in conjunction with Article 8
71. The applicants maintained that they were victims of a breach of Article 14 of the Convention in conjunction with Article 8. Article 14 provides:
“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .”
72. The applicants contended that transsexuals alone are compelled to describe themselves frequently and in public by a gender which does not accord with their external appearances. The discrimination which they suffer compared with either other members of society or with other women who have not undergone gender reassignment surgery is intrusive and a cause of profound embarrassment and distress. Given that the law continues to treat them as being of the male sex, they argued that they are victims of sex discrimination having regard to the detriment which they, unlike men, suffer through having to disclose their pre-operative gender. They maintained that their disadvantaged position in law impinges on intimate aspects of their private lives and in a disproportionate manner which cannot be justified by an appeal to the respondent State’s margin of appreciation under Article 14 of the Convention.
73. The Government submitted that the applicants received the same treatment in law as any other person who has undergone gender reassignment surgery. In any event, any difference in treatment which the applicants may experience as compared to other members of the public could be justified on the basis of the reasons which they had advanced by way of defence to the applicants’ complaints under Article 8 of the Convention.
74. The Commission found that the applicants’ complaints did not give rise to any separate issue having regard to the conclusions which it reached in respect of their allegations under Articles 8 and 12 of the Convention.
75. The Court reiterates that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction.
Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1507, § 72).
76. The Court notes that it has already concluded that the respondent State has not overstepped its margin of appreciation in not according legal recognition to a transsexual’s post-operative gender. In reaching that conclusion, it was satisfied that a fair balance continues to be struck between the need to safeguard the interests of transsexuals such as the applicants and the interests of the community in general and that the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives.
Those considerations, which are equally encompassed in the notion of “reasonable and objective justification” for the purposes of Article 14 of the Convention (see the above-mentioned Cossey judgment, p. 17, § 41), must also be seen as justifying the difference in treatment which the applicants experience irrespective of the reference group relied on.
77. The Court concludes therefore that no violation has been established under this head of complaint.
IV. Alleged violation of Article 13 of the Convention
78. The applicants stated in their memorial and at the hearing that they did not wish to pursue their complaints under Article 13.
79. The Commission concluded that there was no violation of this provision and the Government endorsed this conclusion in their memorial. Neither the Government nor the Delegate of the Commission addressed the complaints at the hearing.
80. Having regard to the above considerations, the Court does not consider it necessary to examine this head of complaint.
1. Holds by eleven votes to nine that there has been no violation of Article 8 of the Convention;