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ESTRATTO DOCUMENTO

passes in London, which also differentiated between men and women concerning age of eligibility

(65 and 60 respectively), the Government have also announced plans to introduce a uniform age.

3. Employment

42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of

imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage

includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment.

Should a post-operative transsexual be asked by a prospective employer to disclose all their

previous names, but fail to make full disclosure before entering into a contract of employment, an

offence might be committed. Furthermore, should the employer discover the lack of full disclosure,

there might also be a risk of dismissal or an action by the employer for damages.

43. 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)

44. 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).

45. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to

comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council

(30 April 1996). This provides generally that transsexual persons should not be treated less

favourably in employment because they are transsexual (whether pre- or post-operative).

E. Rape

46. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have

been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994,

for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment

of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female

transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported).

F. Imprisonment

47. Prison rules require that male and female prisoners shall normally be detained separately and

also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex

(Rules 12(1) and 41(3) of the Prison Rules 1999 respectively).

48. According to the Report of the Working Group on Transsexual People (Home Office April

2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-

operative transsexuals where possible were allocated to an establishment for prisoners of their new

gender. Detailed guidelines concerning the searching of transsexual prisoners were under

consideration by which post-operative male to female transsexuals would be treated as women for

the purposes of searches and searched only by women (see paragraphs 2.75-2.76).

G. Current developments

1. Review of the situation of transsexuals in the United Kingdom

49. On 14 April 1999, the Secretary of State for the Home Department announced the

establishment of an Interdepartmental Working Group on Transsexual People with the following

terms of reference:

“to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the

problems experienced by transsexuals, having due regard to scientific and societal developments, and measures

undertaken in other countries to deal with this issue.”

50. The Working Group produced a report in April 2000 in which it examined the current

position of transsexuals in the United Kingdom, with particular reference to their status under

national law and the changes which might be made. It concluded:

“5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any

treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary

characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies

resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by

individual choice, or by other factors such as health or financial resources. Many people revert to their biological

sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives.

Consideration of the way forward must therefore take into account the needs of people at these different stages of

change.

5.2. Measures have already been taken in a number of areas to assist transsexual people. For example,

discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex

Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual

person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The

criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so

far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired

gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual

victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender.

5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the

individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card

etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will

often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required

gender. We also found that at least one insurance company will issue policies to transsexual people in their

acquired gender.

5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have

to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where

the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their

new gender for all legal purposes.

5.5. We have identified three options for the future;

– to leave the current situation unchanged;

– to issue birth certificates showing the new name and, possibly, the new gender;

– to grant full legal recognition of the new gender subject to certain criteria and procedures.

We suggest that before taking a view on these options the Government may wish to put the issues out to public

consultation.”

51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of

both Houses of Parliament and sent to 280 recipients, including Working Group members,

Government officials, Members of Parliament, individuals and organisations. It was publicised by a

Home Office press notice and made available to members of the public through application to the

Home Office in writing, E-mail, by telephone or the Home Office web site.

2. Recent domestic case-law

52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who

had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had

gone through a form of marriage with a man who was aware of her background. She sought a

declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held,

by a majority, that the appellant's marriage was invalid as the parties were not respectively male and

female, which terms were to be determined by biological criteria as set out in the decision of

Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the

impact of psychological factors on gender, there was no clear point at which such factors could be

said to have effected a change of gender. A person correctly registered as male at birth, who had

undergone gender reassignment surgery and was now living as a woman was biologically a male

and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not

for the courts, to decide at what point it would be appropriate to recognise that a person who had

been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth

Butler-Sloss, President of the Family Division noted the warnings of the European Court of Human

Rights about continued lack of response to the situation of transsexuals and observed that largely as

a result of these criticisms an interdepartmental working group had been set up, which had in April

2000 issued a careful and comprehensive review of the medical condition, current practice in other

countries and the state of English law in relevant aspects of the life of an individual:

“[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any

government department, to take forward any of the recommendations of the Report, or to prepare a consultation

paper for public discussion.

[96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan,

were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and

completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his

terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a

failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out

so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need

to be addressed by the UK...

[109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that

there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals

requires careful consideration. The recommendation of the interdepartmental working group for public

consultation merits action by the government departments involved in these issues. The problems will not go away

and may well come again before the European Court sooner rather than later.”

53. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the

judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to

biological criteria was no longer permissible in the light of scientific, medical and social change.

“[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in

the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other

than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of

the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance

to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the

time of marriage rather than at the time of birth...

[160.] The present claim lies most evidently in the territory of the family justice system. That system must

always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the

right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law

reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an

objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion

that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more

relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have

allowed this appeal.”

He also noted the lack of progress in domestic reforms:

“[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that

there has since been no public consultation. Furthermore when asked whether the Government had any present

intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan

said that he had no instructions. Nor did he have any instructions as to whether the Government intended to

legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family

law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but

it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this

case justify.”

3. Proposals to reform the system of registration of births, marriages and deaths

54. In January 2002, the Government presented to Parliament the document “Civil Registration:

st

Vital Change (Birth, Marriage and Death Registration in the 21 Century)” which set out plans for

creating a central database of registration records which moves away from a traditional snapshot of

life events towards the concept of a living record or single “through life” record:

“In time, updating the information in a birth record will mean that changes to a person's names, and potentially,

sex will be able to be recorded.” (para. 5.1)

“5.5 Making changes

There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a

record has been created, the only corrections that can be made are where it can be shown that an error was made at

the time of registration and that this can be established. Correcting even the simplest spelling error requires formal

procedures and the examination of appropriate evidence. The final records contains the full original and corrected

information which is shown on subsequently issued certificates. The Government recognises that this can act as a

disincentive. In future, changes (to reflect developments after the original record was made) will be made and

formally recorded. Documents issued from the records will contain only the information as amended, though all

the information will be retained. ...”

H. Liberty's third party intervention

55. Liberty updated the written observations submitted in the case of Sheffield and Horsham

concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the

United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021,

§ 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable

trend in the member States of the Council of Europe towards giving full legal recognition to gender

re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including

the United Kingdom) did 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. In cases where gender re-assignment was

legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition

to the new gender identity.

56. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not

been a statistical increase in States giving full legal recognition of gender re-assignment within

Europe, information from outside Europe showed developments in this direction. For example,

there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of

recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States

of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu

Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and

Australia transsexual persons' assigned sex was recognised for the purposes of validating their

marriages: In the latter case, Mr Justice Chisholm held:

“I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so

would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It

would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a

view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible

suffering on people who have already had more than their share of difficulty, with no benefit to society...

...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic

solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as

a matter of law that the question in a particular case will be determined by applying a single criterion, or limited

list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or

genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals

(whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be

resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'.

To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to

state a complete list or suggest that any factors necessarily have more importance than others. However the

relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including

gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought

up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person

has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment

treatments the person has undergone, and the consequences of such treatment; and the person's biological,

psychological and physical characteristics at the time of the marriage...

For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a

man or a woman is to be determined as of the date of marriage...”

57. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite

to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such

marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece,

Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden,

Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not

permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal

position in the remaining 32% was unclear.

III. INTERNATIONAL TEXTS

58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7

December 2000, provides:

“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws

governing the exercise of these rights.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

59. The applicant claims a violation of Article 8 of the Convention, the relevant part of which

provides as follows:

“1. Everyone has the right to respect for his private ... life...

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.”

A. Arguments of the parties

1. The applicant

60. The applicant submitted that despite warnings from the Court as to the importance for

keeping under review the need for legal reform the Government had still not taken any constructive

steps to address the suffering and distress experienced by the applicant and other post-operative

transsexuals. The lack of legal recognition of her changed gender had been the cause of numerous

discriminatory and humiliating experiences in her everyday life. In the past, in particular from 1990

to 1992, she was abused at work and did not receive proper protection against discrimination. She

claimed that all the special procedures through which she had to go in respect of her NI

contributions and State retirement pension constituted in themselves an unjustified difference in

treatment, as they would have been unnecessary had she been recognised as a woman for legal

purposes. In particular, the very fact that the DSS operated a policy of marking the records of

transsexuals as sensitive was a difference in treatment. As a result, for example, the applicant

cannot attend the DSS without having to make a special appointment.

61. The applicant further submitted that the danger of her employer learning about her past

identity was real. It was possible for the employer to trace back her employment history on the basis

of her NI number and this had in fact happened. She claimed that her recent failure to obtain a

promotion was the result of the employer realising her status.

62. As regarded pensionable age, the applicant submitted that she had worked for 44 years and

that the refusal of her entitlement to a State retirement pension at the age of 60 on the basis of the

pure biological test for determining sex was contrary to Article 8 of the Convention. She was

similarly unable to apply for a free London bus pass at the age of 60 as other women were but had

to wait until the age of 65. She was also required to declare her birth sex or disclose her birth

certificate when applying for life insurance, mortgages, private pensions or car insurance, which led

her not to pursue these possibilities to her advantage.

63. The applicant argued that rapid changes, in respect of the scientific understanding of, and the

social attitude towards, transsexualism were taking place not only across Europe but elsewhere. She

referred, inter alia, to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of 14

April 1982 of Italy, and Article 29 of the Civil Code of Turkey as amended by Law No. 3444 of 4

May 1988, which allowed the amendment of civil status. Also, under a 1995 New Zealand statute,

Part V, Section 28, a court could order the legal recognition of the changed gender of a transsexual

after examination of medical and other evidence. The applicant saw no convincing reason why a

similar approach should not be adopted in the United Kingdom. The applicant also pointed to

increasing social acceptance of transsexuals and interest in issues of concern to them reflected by

coverage in the press, radio and television, including sympathetic dramatisation of transsexual

characters in mainstream programming.

2. The Government

64. Referring to the Court's case-law, the Government maintained that there was no generally

accepted approach among the Contracting States in respect of transsexuality and that, in view of the

margin of appreciation left to States under the Convention, the lack of recognition in the United

Kingdom of the applicant's new gender identity for legal purposes did not entail a violation of

Article 8 of the Convention. They disputed the applicant's assertion that scientific research and

“massive societal changes” had led to wide acceptance, or consensus on issues, of transsexualism.

65. The Government accepted that there may be specific instances where the refusal to grant

legal recognition of a transsexual's new sexual identity may amount to a breach of Article 8, in

particular where the transsexual as a result suffered practical and actual detriment and humiliation

on a daily basis (see the B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 52-54, §§

59-63). However, they denied that the applicant faced any comparable practical disadvantages, as

she had been able inter alia to obtain important identification documents showing her chosen names

and sexual identity (e.g. new passport and driving licence).

66. As regards the specific difficulties claimed by the applicant, the Government submitted that

an employer was unable to establish the sex of the applicant from the NI number itself since it did

not contain any encoded reference to her sex. The applicant had been issued with a new NI card

with her changed name and style of address. Furthermore, the DSS had a policy of confidentiality of

the personal details of a NI number holder and, in particular, a policy and procedure for the special

protection of transsexuals. As a result, an employer had no means of lawfully obtaining information

from the DSS about the previous sexual identity of an employee. It was also in their view highly

unlikely that the applicant's employer would discover her change of gender through her NI number

in any other way. The refusal to issue a new NI number was justified, the uniqueness of the NI

number being of critical importance in the administration of the national insurance system, and for

the prevention of the fraudulent use of old NI numbers.

67. The Government argued that the applicant's fear that her previous sexual identity would be

revealed upon reaching the age of 60, when her employer would no longer be required to make NI

contribution deductions from her pay, was entirely without foundation, the applicant having already

been issued with a suitable Age Exemption Certificate on Form CF384.

68. Concerning the impossibility for the applicant to obtain a State retirement pension at the age

of 60, the Government submitted that the distinction between men and women as regarded pension

age had been held to be compatible with European Community law (Article 7(1)(a) of Directive

79/7/EEC; European Court of Justice, R. v. Secretary of State for Social Security ex parte Equal

Opportunities Commission Case C-9/91 [1992] ECR I-4927). Also, since the preserving of the

applicant's legal status as a man was not contrary as such to Article 8 of the Convention, it would

constitute favourable treatment unfair to the general public to allow the applicant's pension

entitlement at the age of 60.

69. Finally, as regards allegations of assault and abuse at work, the Government submitted that

the applicant could have pressed charges under the criminal law against harassment and assault.

Harassment in the workplace on the grounds of transsexuality would also give rise to a claim under

the Sex Discrimination Act 1975 where the employers knew of the harassment and took no steps to

prevent it. Adequate protection was therefore available under domestic law.

70. The Government submitted that a fair balance had therefore been struck between the rights

of the individual and the general interest of the community. To the extent that there were situations

where a transsexual may face limited disclosure of their change of sex, these situations were

unavoidable and necessary e.g. in the context of contracts of insurance where medical history and

gender affected the calculation of premiums.

B. The Court's assessment

1. Preliminary considerations

71. This case raises the issue whether or not the respondent State has failed to comply with a

positive obligation to ensure the right of the applicant, a post-operative male to female transsexual,

to respect for her private life, in particular through the lack of legal recognition given to her gender

re-assignment.

72. The Court recalls that the notion of “respect” as understood in Article 8 is not clear cut,

especially as far as the positive obligations inherent in that concept are concerned: having regard to

the diversity of practices followed and the situations obtaining in the Contracting States, the notion's

requirements will vary considerably from case to case and the margin of appreciation to be

accorded to the authorities may be wider than that applied in other areas under the Convention. In

determining whether or not a positive obligation exists, regard must also 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 (Cossey v. the

United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, § 37).

73. The Court recalls that it has already examined complaints about the position of transsexuals

in the United Kingdom (see the Rees v. the United Kingdom judgment of 17 October 1986, Series

A no. 106, the Cossey v. the United Kingdom judgment, cited above; the X., Y. and Z. v. the United

Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, and the

Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports 1998-V, p.

2011). In those cases, it held that the refusal of the United Kingdom Government to alter the

register of births or to issue birth certificates whose contents and nature differed from those of the

original entries concerning the recorded gender of the individual could not be considered as an

interference with the right to respect for private life (the above-mentioned Rees judgment, p. 14, §

35, and Cossey judgment, p. 15, § 36). It also held that there was no positive obligation on the

Government to alter their existing system for the registration of births by establishing a new system

or type of documentation to provide proof of current civil status. Similarly, there was no duty on the

Government to permit annotations to the existing register of births, or to keep any such annotation

secret from third parties (the above-mentioned Rees judgment, p. 17, § 42, and Cossey judgment, p.

15, §§ 38-39). It was found in those cases that the authorities had taken steps to minimise intrusive

enquiries (for example, by allowing transsexuals to be issued with driving licences, passports and

other types of documents in their new name and gender). Nor had it been shown that the failure to

accord general legal recognition of the change of gender had given rise in the applicants' own case

histories to detriment of sufficient seriousness to override the respondent State's margin of

appreciation in this area (the Sheffield and Horsham judgment cited above, p. 2028-29, § 59).

74. While the Court is not formally bound to follow its previous judgments, it is in the interests

of legal certainty, foreseeability and equality before the law that it should not depart, without good

reason, from precedents laid down in previous cases (see, for example, Chapman v. the United

Kingdom [GC], no. 27238/95, ECHR 2001-I, § 70). However, since the Convention is first and

foremost a system for the protection of human rights, the Court must have regard to the changing

conditions within the respondent State and within Contracting States generally and respond, for

example, to any evolving convergence as to the standards to be achieved (see, amongst other

authorities, the Cossey judgment, p. 14, § 35, and Stafford v. the United Kingdom [GC], no.

46295/99, judgment of 28 May 2002, to be published in ECHR 2002-, §§ 67-68). It is of crucial

importance that the Convention is interpreted and applied in a manner which renders its rights

practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic

and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the

above-cited Stafford v. the United Kingdom judgment, § 68). In the present context the Court has,

on several occasions since 1986, signalled its consciousness of the serious problems facing

transsexuals and stressed the importance of keeping the need for appropriate legal measures in this

area under review (see the Rees judgment, § 47; the Cossey judgment, § 42; the Sheffield and

Horsham judgment, § 60).

75. The Court proposes therefore to look at the situation within and outside the Contracting

State to assess “in the light of present-day conditions” what is now the appropriate interpretation

and application of the Convention (see the Tyrer v. the United Kingdom judgment of 25 April 1978,

Series A no. 26, § 31, and subsequent case-law).

2. The applicant's situation as a transsexual

76. The Court observes that the applicant, registered at birth as male, has undergone gender re-

assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal

purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of

legal relevance and distinctions are made between men and women, as, inter alia, in the area of

pensions and retirement age. For example, the applicant must continue to pay national insurance

contributions until the age of 65 due to her legal status as male. However as she is employed in her

gender identity as a female, she has had to obtain an exemption certificate which allows the

payments from her employer to stop while she continues to make such payments herself. Though

the Government submitted that this made due allowance for the difficulties of her position, the

Court would note that she nonetheless has to make use of a special procedure that might in itself

call attention to her status.

77. It must also be recognised that serious interference with private life can arise where the state

of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis,

Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, § 41). The stress

and alienation arising from a discordance between the position in society assumed by a post-

operative transsexual and the status imposed by law which refuses to recognise the change of

gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality.

A conflict between social reality and law arises which places the transsexual in an anomalous

position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.

78. In this case, as in many others, the applicant's gender re-assignment was carried out by the

national health service, which recognises the condition of gender dysphoria and provides, inter alia,

re-assignment by surgery, with a view to achieving as one of its principal purposes as close an

assimilation as possible to the gender in which the transsexual perceives that he or she properly

belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully

provided is not met with full recognition in law, which might be regarded as the final and

culminating step in the long and difficult process of transformation which the transsexual has

undergone. The coherence of the administrative and legal practices within the domestic system must

be regarded as an important factor in the assessment carried out under Article 8 of the Convention.

Where a State has authorised the treatment and surgery alleviating the condition of a transsexual,

financed or assisted in financing the operations and indeed permits the artificial insemination of a

woman living with a female-to-male transsexual (as demonstrated in the case of X., Y. and Z. v. the

United Kingdom, cited above), it appears illogical to refuse to recognise the legal implications of

the result to which the treatment leads.

79. The Court notes that the unsatisfactory nature of the current position and plight of

transsexuals in the United Kingdom has been acknowledged in the domestic courts (see Bellinger v.

Bellinger, cited above, paragraph 52) and by the Interdepartmental Working Group which surveyed

the situation in the United Kingdom and concluded that, notwithstanding the accommodations

reached in practice, transsexual people were conscious of certain problems which did not have to be

faced by the majority of the population (paragraph 50 above).

80. Against these considerations, the Court has examined the countervailing arguments of a

public interest nature put forward as justifying the continuation of the present situation. It observes

that in the previous United Kingdom cases weight was given to medical and scientific

considerations, the state of any European and international consensus and the impact of any changes

to the current birth register system.

3. Medical and scientific considerations

81. It remains the case that there are no conclusive findings as to the cause of transsexualism

and, in particular, whether it is wholly psychological or associated with physical differentiation in

the brain. The expert evidence in the domestic case of Bellinger v. Bellinger was found to indicate a

growing acceptance of findings of sexual differences in the brain that are determined pre-natally,

though scientific proof for the theory was far from complete. The Court considers it more

significant however that transsexualism has wide international recognition as a medical condition

for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical

Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with “gender identity

disorder”; see also the International Classification of Diseases, tenth edition (ICD-10)). The United

Kingdom national health service, in common with the vast majority of Contracting States,

acknowledges the existence of the condition and provides or permits treatment, including

irreversible surgery. The medical and surgical acts which in this case rendered the gender re-

assignment possible were indeed carried out under the supervision of the national health authorities.

Nor, given the numerous and painful interventions involved in such surgery and the level of

commitment and conviction required to achieve a change in social gender role, can it be suggested

that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-

assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes

of the condition is of diminished relevance.

82. While it also remains the case that a transsexual cannot acquire all the biological

characteristics of the assigned sex (Sheffield and Horsham, cited above, p. 2028, § 56), the Court

notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal

unchanging biological aspect of gender identity is the chromosomal element. It is known however

that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where

the biological criteria at birth are not congruent) and in those cases, some persons have to be

assigned to one sex or the other as seems most appropriate in the circumstances of the individual

case. It is not apparent to the Court that the chromosomal element, amongst all the others, must

inevitably take on decisive significance for the purposes of legal attribution of gender identity for

transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52

above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55

above).

83. The Court is not persuaded therefore that the state of medical science or scientific

knowledge provides any determining argument as regards the legal recognition of transsexuals.

4. The state of any European and international consensus

84. Already at the time of the Sheffield and Horsham case, there was an emerging consensus

within Contracting States in the Council of Europe on providing legal recognition following gender

re-assignment (see § 35 of that judgment). The latest survey submitted by Liberty in the present

case shows a continuing international trend towards legal recognition (see paragraphs 55-56 above).

In Australia and New Zealand, it appears that the courts are moving away from the biological birth

view of sex (as set out in the United Kingdom case of Corbett v. Corbett) and taking the view that

sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be

assessed at the time of the marriage.

85. The Court observes that in the case of Rees in 1986 it had noted that little common ground

existed between States, some of which did permit change of gender and some of which did not and

that generally speaking the law seemed to be in a state of transition (see § 37). In the later case of

Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European

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. While this would

appear to remain the case, the lack of such a common approach among forty-three Contracting

States with widely diverse legal systems and traditions is hardly surprising. In accordance with the

principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures

necessary to secure Convention rights within their jurisdiction and, in resolving within their

domestic legal systems the practical problems created by the legal recognition of post-operative

gender status, the Contracting States must enjoy a wide margin of appreciation. The Court

accordingly attaches less importance to the lack of evidence of a common European approach to the

resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a

continuing international trend in favour not only of increased social acceptance of transsexuals but

of legal recognition of the new sexual identity of post-operative transsexuals.

5. Impact on the birth register system

86. In the Rees case, the Court allowed that great importance could be placed by the

Government on the historical nature of the birth record system. The argument that allowing

exceptions to this system would undermine its function weighed heavily in the assessment.

87. It may be noted however that exceptions are already made to the historic basis of the birth

register system, namely, in the case of legitimisation or adoptions, where there is a possibility of

issuing updated certificates to reflect a change in status after birth. To make a further exception in

the case of transsexuals (a category estimated as including some 2,000-5,000 persons in the United

Kingdom according to the Interdepartmental Working Group Report, p. 26) would not, in the

Court's view, pose the threat of overturning the entire system. Though previous reference has been

made to detriment suffered by third parties who might be unable to obtain access to the original

entries and to complications occurring in the field of family and succession law (see the Rees

judgment, p. 18, § 43), these assertions are framed in general terms and the Court does not find, on

the basis of the material before it at this time, that any real prospect of prejudice has been identified

as likely to arise if changes were made to the current system.

88. Furthermore, the Court notes that the Government have recently issued proposals for reform

which would allow ongoing amendment to civil status data (see paragraph 54). It is not convinced

therefore that the need to uphold rigidly the integrity of the historic basis of the birth registration

system takes on the same importance in the current climate as it did in 1986.

6. Striking a balance in the present case

89. The Court has noted above (paragraphs 76-79) the difficulties and anomalies of the

applicant's situation as a post-operative transsexual. It must be acknowledged that the level of daily

interference suffered by the applicant in B. v. France (judgment of 25 March 1992, Series A

no. 232) has not been attained in this case and that on certain points the risk of difficulties or

embarrassment faced by the present applicant may be avoided or minimised by the practices

adopted by the authorities.

90. Nonetheless, the very essence of the Convention is respect for human dignity and human

freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is

an important principle underlying the interpretation of its guarantees, protection is given to the

personal sphere of each individual, including the right to establish details of their identity as

individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29

April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to

be published in ECHR 2002-...). In the twenty first century the right of transsexuals to personal

development and to physical and moral security in the full sense enjoyed by others in society cannot

be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues

involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an

intermediate zone as not quite one gender or the other is no longer sustainable. Domestic

recognition of this evaluation may be found in the report of the Interdepartmental Working Group

and the Court of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53).

91. The Court does not underestimate the difficulties posed or the important repercussions

which any major change in the system will inevitably have, not only in the field of birth

registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal

justice, employment, social security and insurance. However, as is made clear by the report of the

Interdepartmental Working Group, these problems are far from insuperable, to the extent that the

Working Group felt able to propose as one of the options full legal recognition of the new gender,

subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case,

any “spectral difficulties”, particularly in the field of family law, are both manageable and

acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court

convinced by arguments that allowing the applicant to fall under the rules applicable to women,

which would also change the date of eligibility for her state pension, would cause any injustice to

others in the national insurance and state pension systems as alleged by the Government. No

concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as

likely to flow from any change to the status of transsexuals and, as regards other possible

consequences, the Court considers that society may reasonably be expected to tolerate a certain

inconvenience to enable individuals to live in dignity and worth in accordance with the sexual

identity chosen by them at great personal cost.

92. In the previous cases from the United Kingdom, this Court has since 1986 emphasised the

importance of keeping the need for appropriate legal measures under review having regard to

scientific and societal developments (see references at paragraph 73). Most recently in the Sheffield

and Horsham case in 1998, it observed that the respondent State had not yet taken any steps to do so

despite an increase in the social acceptance of the phenomenon of transsexualism and a growing

recognition of the problems with which transsexuals are confronted (cited above, paragraph 60).

Even though it found no violation in that case, the need to keep this area under review was

expressly re-iterated. Since then, a report has been issued in April 2000 by the Interdepartmental

Working Group which set out a survey of the current position of transsexuals in inter alia criminal

law, family and employment matters and identified various options for reform. Nothing has

effectively been done to further these proposals and in July 2001 the Court of Appeal noted that

there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative

reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a

decision of the European Court of Justice of 30 April 1996 which held that discrimination based on

a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45

above).

93. Having regard to the above considerations, the Court finds that the respondent Government

can no longer claim that the matter falls within their margin of appreciation, save as regards the

appropriate means of achieving recognition of the right protected under the Convention. Since there

are no significant factors of public interest to weigh against the interest of this individual applicant

in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair

balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has,

accordingly, been a failure to respect her right to private life in breach of Article 8 of the

Convention.

II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION

94. The applicant also claimed a violation of Article 12 of the Convention, which provides as

follows:

“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.”

A. Arguments of the parties

1. The applicant

95. The applicant complained that although she currently enjoyed a full physical relationship

with a man, she and her partner could not marry because the law treated her as a man. She argued

that the Corbett v. Corbett definition of a person's sex for the purpose of marriage had been shown

no longer to be sufficient in the recent case of Bellinger v. Bellinger and that even if a reliance on

biological criteria remained acceptable, it was a breach of Article 12 to use only some of those

criteria for determining a person's sex and excluding those who failed to fulfil those elements.

2. The Government

96. The Government referred to the Court's previous case-law (the above-cited Rees, Cossey

and Sheffield and Horsham judgments) and maintained that neither Article 12 nor Article 8 of the

Convention required a State to permit a transsexual to marry a person of his or her original sex.

They also pointed out that the domestic law approach had been recently reviewed and upheld by the

Court of Appeal in Bellinger v. Bellinger, the matter now pending before the House of Lords. In

their view, if any change in this important or sensitive area were to be made, it should come from


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo del Caso Goodwin presentato davanti alla Corte di Strasburgo. La sentenza ha ad oggetto il tema del transessualismo in rapporto a discriminazione e licenziamento sul lavoro, all'accesso del datore di lavoro a dati sensibili, al trattamento pensionistico.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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