A person’s name is an integral part of one’s identity. Both the Human Rights Committee and the European Court have ruled that a person’s name falls under the protection afforded by the right to respect for private life. In Coeriel and Aurik v. The Netherlands(Communication No. 453/1991, Views of 31 October 1994), where national authorities refused the applicants permission to change their surnames to Hindu surnames, the Human Rights Committee established that a person’s name, including the power to change it, falls within the realm of privacy:
The Committee is of the view that a person’s surname constitutes an important component of one’s identity and that the protection against arbitrary or unlawful interference with one’s privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one’s own name. For instance, if a State were to compel all foreigners to change their surnames, this would constitute interference in contravention of article 17.
The Committee rejected the state’s grounds for refusal - inter alia, that the names were not ‘Dutch sounding’ and that they had religious connotations - concluding that denying the applicants permission to change their names was arbitrary within the meaning of Article 17. (For another case regarding names see Müller and Engelhard v. Namibia (Communication No. 919/2000, Views of 26 March 2002, also discussed in the right to equality and non-discrimination ) where the Committee found laws regulating use of names discriminatory).
Although the European Convention does not specifically refer to name, the European Court has reviewed several cases in which individuals have claimed that governmentally imposed restrictions on name changes have violated the right to private life under Article 8. In Stjerna v. Finland (Application No. 18131/91, Judgement of 25 November 1994), the applicant wished to change the spelling of his surname to one that had been used by his family during an earlier historical period. His request to do so was turned down by the Finnish government. In finding no violation, the Court noted that the government had advanced reasonable and objective grounds in support of its decision.Burghartz v. Switzerland raised an issue of broader applicability. In Burghartz, a Swiss man complained that the impossibility of his putting his own surname in front of that of his wife, whose name had been taken as the family name, constituted discriminatory treatment, as the reverse pattern was acceptable under Swiss law.
European Court of Human Rights
Application No. 16213/90
Judgement of 22 February 1994
Keywords: private life – name - prohibition of discrimination on the ground of sex
AS TO THE FACTS
I. The circumstances of the case
6. The applicants, who are Swiss nationals, have both lived in Basle since 1975. They were married in Germany in 1984 and Mrs Burghartz has German citizenship also. In accordance with German law (Article 1355 of the Civil Code), they chose the wife’s surname, “Burghartz”, as their family name; the husband availed himself of his right to put his own surname in front of that and thus call himself “Schnyder Burghartz”.
7. The Swiss registry office (Zivilstandsamt) having recorded “Schnyder” as their joint surname, the couple applied to substitute “Burghartz” as the family surname and “Schnyder Burghartz” as the husband’s surname. On 6 November 1984 the cantonal government (Regierungsrat) of Basle Rural turned down the application.
AS TO THE LAW
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)
21. The applicants relied on Article 8 (art. 8), taken alone and together with Article 14 (art. 14+8).
Given the nature of the complaints, the Court, like the Commission, deems it appropriate to examine the case directly under Article 14 taken together with Article 8 (art. 14+8).
22. The Government argued that these two provisions were not applicable. Since the entry into force of Protocol No. 7 (P7) on 1 November 1988, the equality of spouses in the choice of surname had been governed exclusively by Article 5 of that Protocol (P7-5), covering equality of rights and responsibilities of a private-law character between spouses, as a lex specialis. When ratifying that Protocol (P7), Switzerland had made a reservation providing, inter alia, that “[f]ollowing the entry into force of the revised provisions of the Swiss Civil Code of 5 October 1984, the provisions of Article 5 of Protocol No. 7 (P7-5) shall apply subject to ? the provisions of Federal Law concerning the family name (Articles 160 CC and 8a final section CC) ?”. Examining the case under Articles 14 and 8 taken (art. 14+8) together would thus be tantamount to ignoring a reservation that satisfied the requirements of Article 64 (art. 64) of the Convention.
23. The Court points out that under Article 7 of Protocol No. 7 (P7-7), Article 5 (P7-5) is to be regarded as an addition to the Convention, including Articles 8 and 60 (art. 8, art. 60). Consequently, it cannot replace Article 8 (art. 8) or reduce its scope (see, mutatis mutandis, the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, pp. 12-13, para. 26).
It must nevertheless be determined whether Article 8 (art. 8) applies in the circumstances of the case.
24. Unlike some other international instruments, such as the International Covenant on Civil and Political Rights (Article 24 para. 2), the Convention on the Rights of the Child on 20 November 1989 (Articles 7 and 8) or the American Convention on Human Rights (Article 18), Article 8 (art. 8) of the Convention does not contain any explicit provisions on names. As a means of personal identification and of linking to a family, a person’s name none the less concerns his or her private and family life. The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings, in professional or business contexts as in others [?].
In the instant case, the applicant’s retention of the surname by which, according to him, he has become known in academic circles may significantly affect his career. Article 8 (art. 8) therefore applies.
25. Mr and Mrs Burghartz complained that the authorities had withheld from Mr Burghartz the right to put his own surname before their family name although Swiss law afforded that possibility to married women who had chosen their husbands’ surname as their family name. They said that this resulted in discrimination on the ground of sex, contrary to Articles 14 and 8 (art. 14+8) taken together.
The Commission shared this view in substance.
26. The Government recognised that what was at issue was a difference of treatment on the ground of sex but argued that it was prompted by objective and reasonable considerations which prevented it from being in any way discriminatory.
By providing that, as a general rule, families should take the husband’s surname (Article 160 para. 1 of the Civil Code), the Swiss legislature had deliberately opted for a traditional arrangement whereby family unity was reflected in a joint name. It was only in order to mitigate the rigour of the principle that it had also provided for a married woman’s right to put her own surname in front of her husband’s (Article 160 para. 2 of the Civil Code). On the other hand, the reverse was not justified to the advantage of a married man who, like Mr Burghartz, deliberately and in full knowledge of the consequences, invoked Article 30 para. 1 of the Civil Code to change his surname to that of his wife. It was all the more unjustified as there was nothing to prevent a husband, even in those circumstances, from using his surname as part of a double-barrelled name or in any other way informally.
27. The Court reiterates that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention [?].
28. In support of the system complained of, the Government relied, firstly, on the Swiss legislature’s concern that family unity should be reflected in a single joint surname. The Court is not persuaded by this argument, since family unity would be no less reflected if the husband added his own surname to his wife’s, adopted as the joint family name, than it is by the converse arrangement allowed by the Civil Code.
In the second place, it cannot be said that a genuine tradition is at issue here. Married women have enjoyed the right from which the applicant seeks to benefit only since 1984. In any event, the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination.
Nor is there any distinction to be derived from the spouses’ choice of one of their surnames as the family name in preference to the other. Contrary to what the Government contended, it cannot be said to represent greater deliberateness on the part of the husband than on the part of the wife. It is therefore unjustified to provide for different consequences in each case.
As to the other types of surname, such as a double-barrelled name or any other informal manner of use, the Federal Court itself distinguished them from the legal family name, which is the only one that may appear in a person’s official papers. They therefore cannot be regarded as equivalent to it.
29. In sum, the difference of treatment complained of lacks an objective and reasonable justification and accordingly contravenes Article 14 taken together with Article 8 (art. 14+8).
30. Having regard to this conclusion, the Court, like the Commission, deems it unnecessary to determine whether there has also been a breach of Article 8 (art. 8) taken alone.
This case dealt with Swiss laws that allowed women to use their maiden name before the family name of their spouse but prohibited men from doing the same. The applicant, Mr. Burghartz, who took his wife’s family name when they married was not allowed to use his own surname before it. The Court concluded that although not set out in Article 8, one’s name, as a means of personal identification and of linking to a family, none the less concerns one’s private and family life and that allowing women but not men to keep their surnames when they married was a violation of Article 8 together with Article 14 (discrimination based on sex).
Gender identity is a fundamental aspect of a person’s identity. In recent years, individuals who have undergone gender reassignment operations have brought several cases to the Human Rights Committee and the European Court. Many cases deal with legal non-recognition of the new gender identity, i.e. in birth certificates.
The European Court has dealt with several cases alleging violations of the right to privacy arising from states’ refusal to change official documents to reflect the new gender. In Brüggemann and Scheuten v. Federal Republic of Germany the European Commission alluded to the parameters within which the right to private life must be exercised: ‘[T]he claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests.’ This is important in the context of transsexual cases, in that the individual cannot be considered to have forfeited or restricted the privacy right through ‘voluntary’ public contact. If anything the reverse is true, as the state’s refusal to act forces the individual into public exposure – by the state’s refusal to alter public records. The first two cases decided by the European Court in relation to this issue were Rees v. The United Kingdom (Application No. 9532/81, Judgement of 17 October 1986) and Cossey v. The United Kingdom (Application No.10843/84, Judgement of 27 September 1990). Rees had undergone gender reassignment surgery and had repeatedly been denied a new passport stating his new gender while Cossey was not able to marry legally because his former sex appeared on his birth certificate. In both instances the Court used similar reasoning to conclude that the United Kingdom had not violated the right to privacy. In a case against France the Court ruled in favour of the applicant.
B. v. France
European Court of Human Rights
Application No. 13343/87
Judgement of 25 March 1992
Keywords: sex-change operation - civil status - private life
AS TO THE FACTS
I. The particular circumstances of the case
9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine.
A. The background to the case
10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters [?].
11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below).
12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused.
B. The proceedings brought by the applicant
1. Before the Libourne tribunal de grande instance
13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court
“to hold that, registered in the civil status register of [her place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette”.
AS TO THE LAW
II. THE MERITS
A. Alleged violation of Article 8 (art. 8)
43. According to the applicant, the refusal to recognise her true sexual identity was a breach of Article 8 (art. 8) of the Convention [?].
44. The Court notes first of all that the notion of “respect” enshrined in Article 8 (art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned, as in the instant case [?]and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual [?].
45. Miss B. argued that it was not correct to consider her application as substantially identical to those of Mr Rees and Miss Cossey previously before the Court.
Firstly, it was based on new scientific, legal and social elements.
Secondly, there was a fundamental difference between France and England in this field, with regard to their legislation and the attitude of their public authorities.
Thus the application of the very criteria stated in the above-mentioned judgments of 17 October 1986 and 27 September 1990 would have led to a finding of a violation by France, as French law, unlike English law, did not even acknowledge the appearance lawfully assumed by a transsexual.
The applicant also invited the Court to develop its analysis further than in the aforesaid two cases. She wished the Court to hold that a Contracting State is in breach of Article 8 (art. 8) if it denies in general fashion the reality of the psycho-social sex of transsexuals.
1. Scientific, legal and social developments
46. (a) The Court said in the Cossey judgment that it “[had] been informed of no significant scientific developments that [had] occurred” since the Rees judgment; “in particular, it remain[ed] the case ? that gender reassignment surgery [did] not result in the acquisition of all the biological characteristics of the other sex” (loc. cit., p. 16, para. 40).
According to the applicant, science appears to have contributed two new elements to the debate on the contrast between appearance (changed somatic sex and constructed gonadal sex) and reality (unchanged chromosomal sex but contrary psycho-social sex) as regards the sex of transsexuals. Firstly, the chromosomal criterion was not infallible (cases of persons with intra-abdominal testicles, so-called testicular feminisation, or with XY chromosomes despite their feminine appearance); secondly, current research suggested that the ingestion of certain substances at a given stage of pregnancy, or during the first few days of life, determined transsexual behaviour, and that transsexualism might result from a chromosome anomaly. There might thus be a physical, not merely psychological explanation of the phenomenon, which would mean that there could be no excuse for refusing to take it into account in law.
(b) As regards the legal aspects of the problem, Miss B relied on the dissenting opinion of Judge Martens, annexed to the Cossey judgment [?] the differences which still subsisted between the member States of the Council of Europe as to the attitude to be adopted towards transsexuals (ibid., p. 16, para. 40) were counterbalanced to an increasing extent by developments in the legislation and case-law of many of those States. This was supported by resolutions and recommendations of the Assembly of the Council of Europe and the European Parliament.
(c) Finally, the applicant stressed the rapidity of social changes in the countries of Europe, and the diversity of cultures represented by those countries which had adapted their laws to the situation of transsexuals.
48. The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism.
It notes, however, in the light of the relevant studies carried out and work done by experts in this field, that there still remains some uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which result are moreover extremely complex: anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed); the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation), and so on. On these various points there is as yet no sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments.
2. The differences between the French and English systems
49. The applicant argued that the lot of transsexuals could be seen to be much harder in France than in England on a number of points. The Commission agreed in substance with this opinion.
51. The Court finds, to begin with, that there are noticeable differences between France and England with reference to their law and practice on civil status, change of forenames, the use of identity documents, etc. [?]. It will examine below the possible consequences of these differences in the present case from the point of view of the Convention.
(a) Civil status
(i) Rectification of civil status documents
52. The applicant considered the rejection of her request for rectification of her birth certificate to be all the more culpable since France could not claim, as the United Kingdom had done, that there were any major obstacles linked to the system in force.
The Court had found, in connection with the English civil status system, that the purpose of the registers was not to define the present identity of an individual but to record a historic fact, and their public character would make the protection of private life illusory if it were possible to make subsequent corrections or additions of this kind [?]. This was not the case in France. Birth certificates were intended to be updated throughout the life of the person concerned (see paragraph 19 above), so that it would be perfectly possible to insert a reference to a judgment ordering the amendment of the original sex recorded. Moreover, the only persons who had direct access to them were public officials authorised to do so and persons who had obtained permission from the procureur de la République; their public character was ensured by the issuing of complete copies or extracts. France could therefore uphold the applicant’s claim without amending the legislation; a change in the Court of Cassation’s case-law would suffice.
55. The Court notes first of all that nothing would have prevented the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position. Furthermore, numerous courts of first instance and courts of appeal have already ordered similar insertions in the case of other transsexuals, and the procureur’s office has hardly ever appealed against such decisions, the great majority of which have now become final and binding [?]. The Court of Cassation has adopted a contrary position in its case-law, but this could change [?].
It is true that the applicant underwent the surgical operation abroad, without the benefit of all the medical and psychological safeguards which are now required in France. The operation nevertheless involved the irreversible abandonment of the external marks of Miss B.’s original sex. The Court considers that in the circumstances of the case the applicant’s manifest determination is a factor which is sufficiently significant to be taken into account, together with other factors, with reference to Article 8 (art. 8).
(ii) Change of forenames
56. The applicant pointed out that the law of 6 Fructidor Year II [?] prohibited any citizen from bearing a surname or forename other than those recorded on his or her birth certificate. In the eyes of the law, her forename was therefore Norbert; all her identity documents (identity card, passport, voting card, etc.), her cheque books and her official correspondence (telephone accounts, tax demands, etc.) described her by that name. Unlike in the United Kingdom, whether she could change her forename did not depend on her wishes only; Article 57 of the Civil Code made this subject to judicial permission and the demonstration of a “legitimate interest” capable of justifying it [?]. Miss B. knew of no decision which had regarded transsexualism as giving rise to such an interest. In any event, the Libourne tribunal de grande instance and the Bordeaux Court of Appeal had refused to allow her the forenames Lyne Antoinette [?]. Finally, the status of informally adopted forenames was highly uncertain.
The Commission agreed in substance with this argument.
To sum up, the Court considers that the refusal to allow the applicant the change of forename requested by her is also a relevant factor from the point of view of Article 8 (art. 8).
59. (a) The applicant stressed that an increasing number of official documents indicated sex: extracts of birth certificates, computerised identity cards, European Communities passports, etc. Transsexuals could consequently not cross a frontier, undergo an identity check or carry out one of the many transactions of daily life where proof of identity is necessary, without disclosing the discrepancy between their legal sex and their apparent sex.
(b) According to the applicant, sex was also indicated on all documents using the identification number issued to everyone by INSEE [?]. This number was used as part of the system of dealings between social security institutions, employers and those insured; it therefore appeared on records of contributions paid and on payslips. A transsexual was consequently unable to hide his or her situation from a potential employer and the employer’s administrative staff; the same applied to the many occasions in daily life where it was necessary to prove the existence and amount of one’s income (taking a lease, opening a bank account, applying for credit, etc). This led to difficulties for the social and professional integration of transsexuals. Miss B. had allegedly been a victim of this herself. The INSEE number was also used by the Banque de France in keeping the register of stolen and worthless cheques.
(c) Finally, the applicant encountered problems every day in her economic life, in that her invoices and cheques indicated her original sex as well as her surname and forenames.
60. The Commission agreed substantially with the applicant’s arguments. In its opinion the applicant, as a result of the frequent necessity of disclosing information concerning her private life to third parties, suffered distress which was too serious to be justified on the ground of respect for the rights of others.
61. The Government replied, to begin with, that certificates of civil status and French nationality, driving licences, voting cards and national identity cards of traditional type did not mention sex.
This was admittedly not the case with the Community passport, but the design of that depended on regulations from Brussels and was thus not a requirement imposed by France. The applicant could in fact enjoy freedom of movement independently of her sexual identity, and some of the examples given by her were of no relevance; thus the report of a road accident or other claim did not require the sex of the insured to be specified.
The INSEE number had been introduced after the second world war for demographic statistical purposes, and was used subsequently for identifying the recipients of French social security benefits. It was hardly ever used apart from this, and did not appear on identity cards, passports or other administrative documents. In any event, the public authorities to which it was communicated were obliged to keep it secret. As for employers, they needed to know it in order to pay a proportion of their employees’ social security contributions.
In this connection the Government expressed the opinion that if Miss B. had been unable to find paid work outside the entertainment world, there could be many reasons for this apart from her being a transsexual. There were transsexuals who exercised other equally worthy professions. What was more, any discrimination in recruitment based on the sex or morals of the person concerned was an offence under Article 416-1 of the Criminal Code. No transsexual had ever relied on this Article.
There was no reason either why banks should not be asked to print on cheques only the surname and forenames of the drawer without the prefix “M.”, “Mme” or “Mlle” (see paragraph 27 above), nor did banks verify that the forenames stated were the same as those recorded in the civil status register. Similarly, invoices did not normally mention the customer’s sex or forenames, but only the surname (see paragraph 28 above). There were thus means available to transsexuals for preserving their privacy.
62. The Court is not convinced by this argument. It considers, in agreement with the Commission, that the inconveniences complained of by the applicant in this field reach a sufficient degree of seriousness to be taken into account for the purposes of Article 8 (art. 8).
63. The Court thus reaches the conclusion, on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant’s other arguments, that she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above) has not been attained, and there has thus been a violation of Article 8 (art. 8).
The respondent State has several means to choose from for remedying this state of affairs. It is not the Court’s function to indicate which is the most appropriate [?].
In this case the Court found that problems with respect to documentation and civil status could give rise to a violation of Article 8 and ruled in favour of the applicant who sought rectification of the civil status register and official documents to reflect her new gender. The Court justified the shift from the Cossey and Rees cases on the grounds that the burdens imposed on the French system by necessary changes to accommodate transsexuals were less cumbersome than changes to the English system, a system that was in practice more flexible in law and practice anyway. The Court ruled that the daily situation, taken as a whole, in which the applicant found herself, was not compatible with the respect due to her private life. In a later case Sheffield and Horsham v. The United Kingdom, Applications No. 22985/93, Judgement of 30 July 1998, the Court did not depart from its decision in the Cossey and Rees cases.
The landmark case of Goodwin (Christine) v. The United Kingdom finally established certain rights of transsexuals.
European Court of Human Rights
Application No. 28957/95
Judgement of 11 July 2002
Keywords: gender - transsexuals - moral prejudice - private life - marriage - non-discrimination
I. THE CIRCUMSTANCES OF THE CASE
105. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual.
106. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. [?]. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual.
107. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work [?].
108. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men [?].
109. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. [?].
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
110. The applicant claims a violation of Article 8 of the Convention [?].
B. The Court’s assessment
1. Preliminary considerations
111. 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.
2. The applicant’s situation as a transsexual
112. 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 [?].
113. 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 [?]. 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.
114. 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. [?].
115. 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
116. 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
117. 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 [?]. 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
118. 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.
119. 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. [?].
120. Furthermore, the Court notes that the Government have recently issued proposals for reform which would allow ongoing amendment to civil status data [?]. 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
121. 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 [?] 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.
122. 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 [?]. 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 [?].
123. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have [?]. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable [?]. 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.
124. 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.
The Court abandoned its previous position regarding the status of transsexuals in the United Kingdom, stressing that the Convention was a living instrument to be interpreted in a practical and effective manner. Whilst in the earlier cases of Rees and Cossey the Court ruled that the state was under no positive obligation to establish a system that would reflect the current civil status of transsexuals, in this case it ruled that the state’s failure to legally recognise the applicant’s gender re-assignment amounted to a failure to respect her right to private life guaranteed under Article 8. Furthermore, the Court ruled that not allowing transsexuals to enjoy the right to marry in their new gender role was a breach of Article 12 (the right to marry). See also X.Y.Z. v. The United Kingdom, Application No. 21830/93, Judgement of 22 April 1997 regarding parental rights of transsexuals.
An interesting case regarding the protection of personal identity is Odièvre v. France(Application No. 42326/98, Judgement of 13 February 2003), where a woman complained that rules governing confidentiality on birth, which prevented her from obtaining information about her natural family, were contrary to Article 8 ECHR. The European Court reiterated that Article 8 protected, among other interests, the right to personal development which included knowing details of one’s identity as a human being and the vital interest protected by the Convention in obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents. Birth formed part of a child’s, and subsequently the adult’s, private life guaranteed by Article 8. The Court observed that there were two competing interests in the case: on the one hand, the right to know one’s origins and the child’s vital interest in its personal development and, on the other, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions. The Court further stated that the problem of anonymous births could not be dealt with in isolation from the issue of the protection of third parties who also had a right to respect for their private and family life. The Court found that the French legislation sought to strike a balance and to ensure sufficient proportion between the competing interests and thus France had not overstepped the margin of appreciation which it had to be afforded in view of the complex and sensitive nature of the issue of access to information about one’s origins, an issue that concerned the right to know one’s personal history, the choice of the natural parents, the existing family ties and the adoptive parents. Consequently, there had been no violation of Article 8.