EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 22985/93

                          Kristina Sheffield

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                     (adopted on 21 January 1997)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-31). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   Particular circumstances of the case

           (paras. 20-24) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law and practice

           (paras. 25-30) . . . . . . . . . . . . . . . . . . . . . 3

      C.   Other relevant materials

           (para. 31) . . . . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 32-75). . . . . . . . . . . . . . . . . . . . . . . . 6

      A.   Complaints declared admissible

           (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6

      B.   Points at issue

           (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6

      C.   As regards Article 8 of the Convention

           (paras. 34-54) . . . . . . . . . . . . . . . . . . . . . 6

           CONCLUSION

           (para. 55) . . . . . . . . . . . . . . . . . . . . . . .12

      D.   As regards Article 12 of the Convention

           (paras. 56-60) . . . . . . . . . . . . . . . . . . . . .12

           CONCLUSION

           (para. 61) . . . . . . . . . . . . . . . . . . . . . . .13

      E.   As regards Article 14 of the Convention

           (paras. 62-65) . . . . . . . . . . . . . . . . . . . . .13

           CONCLUSION

           (para. 66) . . . . . . . . . . . . . . . . . . . . . . .14

                           TABLE OF CONTENTS

                                                                 page

      F.   As regards Article 13 of the Convention

           (paras. 67-70) . . . . . . . . . . . . . . . . . . . . .14

           CONCLUSION

           (para. 71) . . . . . . . . . . . . . . . . . . . . . . .14

      G.   Recapitulation

           (paras. 72-75) . . . . . . . . . . . . . . . . . . . . .15

PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE,

MM. J.-C. GEUS, J. MUCHA, P. LORENZEN and  K. HERNDL. . . . . . . .16

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . . . . .17

PARTIALLY DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . .19

APPENDIX I:      FINAL DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 21

APPENDIX II:     PARTIAL DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 28

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a British citizen born in 1946 and resident in

London. She is represented by Henri Brandman & Co., solicitors

practising in London.

3.    The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Martin Eaton, as Agent,

from the Foreign and Commonwealth Office.

4.    The case concerns the complaints of the applicant that the State

refuses to give legal recognition to her status as a woman following

gender re-assignment. The application, as declared admissible, raises

issues under Articles 8, 12, 13 and 14 of the Convention.

B.    The proceedings

5.    The application was introduced on 4 August 1993 and registered

on 22 November 1993.

6.    On 4 July 1994, the Commission decided to communicate the

application to the Government inviting them to submit observations on

the admissibility and merits. It decided that the case should be given

priority pursuant to Rule 33 of the Commission's Rules of Procedure.

7.    On 16 November 1994, the Government submitted their observations

and on 24 April 1995, the applicant submitted her observations in

reply.

8.    On 4 September 1995, the Commission decided to invite the parties

to make submissions at an oral hearing concerning the applicant's

complaints relating to the lack of respect for her private life,

inability to marry, discrimination and lack of an effective remedy. The

remainder of the application was declared inadmissible.

9.    On 8 December 1995, the Government submitted further documents

and on 15 January 1996, the applicant provided further material.

10.   At the oral hearing, held on 19 January 1996, the Government were

represented by Ms. Dickson, as Agent, Mr. Pannick Q.C., Counsel,

Mr. Singh, counsel, Ms. Jenn and Mr. Jenkins as Advisers from the

Department of Health and the Office of Population, Censuses and

Surveys. The applicant was represented by Messrs. Duffy, McFarlane and

Heim as  Counsel, Mr. Brandman, solicitor, and Professor Gooren as

adviser.

11.   On 19 January 1996, the Commission declared the application

admissible.

12.   The parties were then invited to submit any additional

observations on the merits of the application.

13.   On 20 March 1996, the Government submitted further observations

and on 29 March 1996, the applicant submitted observations on the

merits. The applicant submitted further information on 2 May 1996, to

which the Government submitted comment on 28 June 1996.

14.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

15.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 J. MUCHA

                 D. SVÁBY

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

16.   The text of the Report was adopted by the Commission on

21 January 1997 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

17.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

18.   The Commission's final and partial decisions on the admissibility

of the application are annexed hereto (Appendices I and II).

19.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

20.   The applicant at birth in 1946 was registered as being of the

male sex. In 1986, the applicant began treatment at a gender identity

clinic and on a date unspecified, underwent sex re-assignment surgery

and treatment. She changed her name. This change of name was recorded

on her passport and driving licence. Her birth certificate continues

to record her original name and gender.

21.   The applicant was divorced from her spouse at or around that

time. She states that she was informed that she was required to obtain

a divorce as a pre-condition to surgery being carried out. Following

the divorce, the applicant's ex-wife applied to the court to terminate

the applicant's access to her daughter. The applicant states that the

judge granted the application on the basis that contact with a

transsexual would not be in the child's interests. The applicant has

not seen her daughter since then, a period of more than eight years.

22.   On 7 and 16 April 1992, the applicant attended court to stand

surety in the sum of £ 2000 for a friend. On both occasions she was

required to disclose to the court her previous name.

23.   In June 1992, the applicant was arrested for breach of fire-arms

regulations. The charges were dropped when it was established that the

pistol was a replica. Following comments of police officers indicating

that they were aware that the applicant had undergone a sex change

operation, the applicant sought to discover whether these personal

details were held on police computer files. She discovered that the

official request for information made under the data protection

provisions required her to state her sex and other names. She did not

pursue the enquiry.

24.   On 20 December 1992, the applicant entered into an insurance

contract in respect of her car. The form which she was required to fill

in as the basis of the contract required her to state her sex. As under

United Kingdom law she continues to be regarded a male she was obliged

to give her sex as male.

B.    Relevant domestic law and practice

      Names

25.   Under United Kingdom law, a person is entitled to adopt such

first names or surname as he or she wishes. Such names are valid for

purposes of identification and may be used in passports, driving

licences, medical and insurance cards etc.

      Marriage and definition of gender in domestic law

26.   Pursuant to United Kingdom law, marriage is defined as the

voluntary union between a man and a woman, sex for that purpose being

determined by biological criteria (chromosomal, gonadal and genital,

without regard to any surgical intervention): Corbett v. Corbett [1971]

P 83. This definition has however been applied beyond the context of

the Corbett case eg. approved by the Court of Appeal in R. v. Tan (1983

QB 1053) where it was held that a person born male had been correctly

convicted under a statute penalising men who live on the earnings of

prostitution, notwithstanding the fact that the accused had undergone

gender re-assignment therapy.

      Birth certificates

27.   Registration of births is governed by the Births and Deaths

Registration Act 1953 which requires that the birth of every child be

registered by the Registrar of Births and Deaths for the area in which

the child is born. An entry is regarded as record of the facts at the

time of birth.  A birth certificate accordingly constitutes a document

revealing not current identity but historical facts.

28.   The criteria for determining the sex of a child at birth are not

defined in the Act. The practice of the Registrar is to use exclusively

the biological criteria (chromosomal, gonadal and genital).

29.   The 1953 Act provides for the correction by the Registrar of

clerical errors or factual errors. The official position is that an

amendment may only be made if the error occurred when the birth was

registered.  The fact that it may become evident later in a person's

life that his or her "psychological" sex is in conflict with the

biological criteria is not considered to imply that the initial entry

at birth was a factual error. Only in cases where the apparent and

genital sex of a child was wrongly identified or where the biological

criteria were not congruent can a change in the initial entry be made

and it is necessary for that purpose to adduce medical evidence that

the initial entry was incorrect.

      Social security, employment and pensions

30.   A transsexual continues to be recorded for social security,

national insurance and employment purposes as being of the sex recorded

at birth. A male to female transsexual will accordingly only be

entitled to a State pension at the state retirement age of 65 and not

the age of 60 which is applicable to women.

C.    Other relevant materials

31.   In its judgment of 30 April 1996, in the case of P. v. S. and the

Cornwall County Council, the European Court of Justice (ECJ) held that

discrimination arising from gender re-assignment constituted

discrimination  on grounds of sex and accordingly Article 5 para. 1 of

the directive on the implementation of the principle of equal treatment

for man 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 re-assignment. The ECJ

held, rejecting the argument of the United Kingdom 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 re-assignment, 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

      re-assignment.

      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."

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

32.   The Commission has declared admissible the applicant's complaints

that the lack of legal recognition of her gender re-assignment

discloses a lack of respect for her private life, a denial of the right

to marry and discrimination and that she does not have an effective

remedy for her complaints.

B.    Points at issue

33.   The issues to be determined in the present case are:

      - whether there is a lack of respect for the applicant's private

      life contrary to Article 8 (Art. 8) of the Convention;

      - whether there is a violation of Article 12 (Art. 12) of the

      Convention in respect of an alleged denial of the right to marry;

      - whether the applicant has been subject to discrimination in the

      enjoyment of her rights under the Convention contrary to

      Article 14 (Art. 14) of the Convention;

      - whether there has been a violation of Article 13 (Art. 13) of

      the Convention in relation to her allegations of lack of an

      effective remedy in respect of her complaints.

C.    As regards Article 8 (Art. 8) of the Convention

34.   Article 8 (Art. 8) of the Convention provides as relevant:

      "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."

35.   The applicant complains that the failure of the United Kingdom

law to recognise her gender re-assignment constitutes a lack of respect

for her private life guaranteed under Article 8 (Art. 8) of the

Convention. For legal purposes, such as appearance in court and

documents (eg. insurance and contractual documents), a transsexual may

be required to indicate birth gender and, on occasion, previous name

and in official records (National Insurance and social security) and

in the employment context, a transsexual continues to be regarded as

being of the sex recorded at birth.  Failure to declare her sex as male

would in the court context or when taking oaths or making statutory

declarations in other contexts eg. swearing affidavits render her

liable to criminal sanctions under perjury provisions and it would be

unlawful, and a ground for dismissal, if she failed to declare her

birth gender in employment applications. For the purposes of the

criminal law and criminal justice system, she would also continue to

be treated as being of her birth gender ie. a man, where such was

relevant to the definition of the offence or any sentencing

consequences.

36.   The applicant contends that the allocation of sex in United

Kingdom law and practice by reference to biological indicators existing

at the time of birth is not justified socially, medically or

scientifically. Accordingly the applicant submits that she is subject

to serious, distressing and unnecessary interferences. The United

Kingdom has failed to provide any viable justification for the refusal

to afford legal recognition to her change of gender, giving no

explanation of why it is not possible within a historical record system

to make annotations or corrections, as has occurred in several

instances, where it is doubtful that any genuine "biological" mistake

occurred at the time of birth (eg. the cases of Roberta Cowell,

registered at birth in 1918 as Robert Cowell and Sir Ewan Forbes,

registed at birth in 1912 as Elizabeth Forbes-Sempil).

37.   The applicant refers to developments in medical and scientific

research that indicate that brain differences exist between men and

women and that there are similarities in brain structure between women

and genetically male transsexuals (eg. the article "A sex difference

in the human brain and its relation to transsexuality" by Zhou, Hofman,

Gooren and Swaab, Nature, 2 November 1995).  The applicant also points

to the decision of the European Court of Justice in P. v. S. and the

Cornwall County Council as, together with social, medical and

scientific developments, evidencing the existence of a broad consensus

in Europe.

38.   The Government submit that Article 8 (Art. 8) does not require

a Contracting State to recognise for legal purposes the new sexual

identity of a person who has undergone gender re-assignment surgery.

They refer to the wide margin of appreciation to be accorded to States

in this area where difficult medical, social and moral questions arise

on which there is not yet any international consensus (see Eur. Court

H.R., Rees judgment of 17 October 1986, Series A no. 106; Cossey

judgment of 27 September 1990, Series A no. 184, and B. v. France

judgment of 25 March 1992, Series A no. 232-C). The Court's case-law

indicates that the positive obligation of respect under Article 8

(Art. 8) does not require the United Kingdom to adopt a new and

radically different system of birth registration ie. from the existing

system of historical fact to a system based on current identity.

39.   The Government submit moreover that the applicant has not

established a sufficient degree of practical detriment, distress or

stigmatisation  which would amount to a denial of her right to respect

for her private life. She has been able to change her name, and have

this change entered on her official documents such as driving licence

and passport. She has also been issued with a new national insurance

number and both the Employment Service and the Department of Social

Security  maintain the confidentiality of their records. They dispute

that the applicant suffers any less legal protection under civil or

criminal law than any other person. Insofar as she refers to

requirements to disclose her previous name or birth gender in insurance

or court contexts, they point out that this information may be

necessary, for example, in order for criminal records to be checked or

where medical history is relevant. In any event, she can avoid entering

into contracts with those companies who require her to give her this

information.

40.   The Government dispute the significance of the alleged medical

developments relied on by the applicant. They draw attention to the

fact that in the same issue of "Nature" as referred to by the applicant

(2 November 1995) an article by S. Marc Breedlove comments that the

difficulties inherent in studying the diverse sexual behaviour of

humans ensures that this will be far from the final word on the subject

and that it could not be excluded that the differential brain sizes

found in the study derived from external causes such as the oestrogen

treatment of transsexuals or developmental and social influences. They

also point out that the case of P. v. S. was concerned with a narrow

point of employment law and did not purport to deal with whether and

in what circumstances a State is obliged to recognise for legal

purposes that a person's sex has been changed by re-assignment surgery.

41.   The Commission observes that the applicant's complaints

essentially challenge the existing state of law in the United Kingdom

in relation to the legal status of transsexuals as disclosing a lack

of respect for her right to private life. The Commission has therefore

examined whether an effective respect for the applicant's private life

imposes a positive obligation on the United Kingdom to modify its

existing legal system as it applies to transsexuals. In determining

whether or not such a positive obligation exists, regard must be had

to the fair balance which has to be struck between the general interest

of the community and the interests of the individual (see eg. Eur.

Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C.

p. 47, para. 44). In striking this balance, the aims mentioned in the

second paragraph of Article 8 (Art. 8) may be of relevance.

42.   The Commission recalls that the impact of the legal situation of

transsexuals on their private life in the United Kingdom has been

considered by itself and the Court in two previous cases; Rees and

Cossey (Eur. H.R., Rees judgment of 17 October 1986, Series A no. 106

and Cossey judgment of 27 September 1990, Series A no. 184).

43.   In Rees, the Court found no violation of the applicant's

(a female-to-male transsexual) right to respect for private life by

twelve votes to three as opposed to a unanimous finding of violation

by the Commission in its opinion. The Court considered that requiring

the United Kingdom to alter birth certificates of transsexuals would

be tantamount to asking it to adopt a civil status register. It noted

that it would not be possible to adopt annotations to the existing

register which would be secret without fundamentally altering the

present system and excluding the interests of third parties in

obtaining information which they had a legitimate interest to receive.

This would entail detailed legislation and having regard to the

interests of others and the wide margin of appreciation to be afforded

to States in this area, the positive obligations arising under

Article 8 (Art. 8) could not be held to extend that far. The Court

however expressed itself conscious of the problems faced by

transsexuals, recalled the principle that the Convention had to be

interpreted and applied in light of current circumstances and stated

that the need for appropriate legal measures should be kept under

review having regard particularly to scientific and societal

developments.

44.   When, almost four years later, the Cossey case (involving a male-

to-female transsexual) came before the Court, the Court found no

violation of Article 8 (Art. 8) upholding its opinion in the Rees case

but by a narrower margin of ten votes to eight. It had regard to the

developments which had taken place in the interval but noted that no

scientific developments had occurred. While there had been developments

in domestic law in some States and recommendations issued by the

European Parliament and the Parliamentary Assembly of the Council of

Europe, it still found little common ground. It again repeated its

comment from the Rees case that the matter should be kept under review.

45.   Subsequently, in a case concerning France, the Court found a

violation of the right to respect for private life by thirteen votes

to five : it decided the case however on the basis of the situation

pertaining in France, with its civil status system, and of the

seriousness of the inconveniences facing the applicant. It declined to

revisit its findings in Rees and Cossey as regarded any general right

to recognition of the psycho-social reality of transsexualism (Eur.

Court H.R., B. v. France judgment, op. cit., para. 48).

46.   As regards the interests of the applicant in this case, the

Commission notes that she is not subject to the daily humiliation and

embarrassment facing B., who had been unable to change her forename on

documents in common use. However while she has been able to change her

name and key documentation, such as passport, driving licence etc., it

is not contested by the Government that for legal purposes the

applicant must, when required to disclose her sex, indicate that

recorded at birth. This includes appearances in court and filling in

contracts or employment applications or gaining access to official data

systems (eg. police). Failure to disclose her birth gender may render

her liable to the sanction of the criminal law (perjury etc.) or in

breach of contract. Where there is any difference in legal regimes

applying to men or women, the applicant will also remain subject to

that applicable to her birth gender eg. retirement age, pension

entitlements.  These instances differ considerably in their immediacy.

That they are not hypothetical however is illustrated by the occasion

when the applicant, in court as surety, was required to disclose her

original birth name which was in stark contradiction to her physical

appearance.

47.   The Commission is of the opinion that the applicant is subject

to a real and continuous risk of intrusive and distressing enquiries

and to an obligation to make embarrassing disclosures. While it might

be said that, with care, such situations could be avoided, this in

itself would threaten to impinge significantly on an individual's

ability to develop and maintain relationships and to restrict the

choices available in fulfilling personal and social potential. The

Commission further recalls that, even where a person appears to suffer

no immediate or direct consequences from an existing state of law, a

disparity between an individual's private life and the law may, where

it relates to an important element of personal identity, result in

internal conflict or stigmatisation which per se impinges on the

enjoyment of rights guaranteed under the Convention (eg. mutatis

mutandis Eur. Court H.R. Dudgeon judgment of 22 October 1981 concerning

the effect of criminal prohibition of adult homosexual activities and

X. Y. and Z. v. the United Kingdom, No. 21830/93 Comm. Report 27.6.95

pending before the Court, which concerns primarily legal recognition

of family relationships where there is a transsexual partner).

48.   To weigh in the balance against the applicant's interest is the

interest of the general community. The Government have referred,

expressly, to the concerns identified, and accepted by the Court, in

the Cossey case (op. cit., paras. 18 and 38) in relation to entering

the change of gender in the birth register. This is to the effect that

the birth register is based on a system of historical fact which is

generally accessible to the public. Any annotation could not be kept

secret from third parties without a fundamental modification of the

system and if secrecy was achieved, it could have considerable

unintended results, for example, prejudicing the purpose and function

of the register by complicating factual issues arising in the fields

of family and succession law, and might deprive third parties of

information which they had a legitimate interest to receive. The

applicant argues that this does not furnish convincing justification,

since it fails to detail any specific instance of objectionable

complications which could in fact arise.

49.   The Commission has doubts as to the severity of the alleged

detrimental  consequences of any alteration in the birth registration

system in the United Kingdom. It notes that the number of requests for

alteration of certificates was identified in a Parliamentary debate as

being an average of thirty over a period of the last ten years

(2 February 1996, Second Reading of a Private Member's Bill on Gender

Identity (Registration and Civil Status)). While this cannot reflect

the actual number of transsexuals in the United Kingdom, many of whom

will not attempt to obtain a change, there is nothing in the material

before the Commission to indicate that the scale of applications for

change would be in itself a daunting feature. The argument that

subsequent social or legal changes cannot feature in a historical

system is flawed by the fact that the birth register system copes

currently with recording adoptions. As regards the alleged problem of

secrecy, the Commission understands the applicant's complaints to

centre on the lack of legal recognition of the re-assignment of gender

from the moment of that re-assignment. While the applicant does not

agree with the Government's denial that complete rectification is

possible, the matters relied on  before the Commission principally

refer to the embarrassment of having to declare birth gender in

official or legal contexts. There is no reference by the applicant to

any fear of discovery or intrusion from third parties obtaining access

to the birth register.

50.   It seems to the Commission that the record of gender in the birth

register is in any event a secondary or indirect aspect of the case.

The inability of the applicant to obtain legal recognition of her

gender re-assignment derives from the principle in domestic law,

established in the case of Corbett v. Corbett, that sex is fixed

immutably by conventional biological considerations as existing at the

time of birth. It would appear that domestic law could, by whatever

means it found appropriate, provide for transsexuals to be given

prospective legal recognition of their gender re-assignment, without

necessarily destroying the historical nature of the birth register as

a record of the facts as perceived at that time. If it is possible for

documentation, such as passports and driving licences, to indicate the

change of gender, it is not readily apparent why transsexuals should

remain under a general obligation to declare their birth gender in

other official or employment and contract contexts. While there may be

a legitimate interest, for example, in the context of life insurance,

for a person to be required to disclose details of medical history,

there would appear to be no such automatic necessity to declare birth

gender in subscribing to house insurance.

51.   The Commission nonetheless acknowledges that there are legitimate

public interest considerations to weigh in the balance against the

applicant's interests, where it is being claimed that established legal

principles and practices require to be modified. It further recalls

that the Court has previously stated that, as concerned transsexuals,

where it considered that there was  little common ground in Contracting

States and the law appeared to be in a transitional stage, the

Contracting States enjoyed a wide margin of appreciation (see  Eur.

Court H.R., Rees judgment of 17 October 1986, op. cit., p. 15, para. 37

and  Cossey judgment of 27 September 1990, op. cit., p. 16, para. 40).

It is thus argued by the Government that where the phenomenon of

transsexualism is still the subject of social, medical and scientific

controversy, the position in the United Kingdom, where transsexuals are

able to live in their new gender in society, obtaining change of name

and identity documentation, must reasonably be within their margin of

appreciation.

52.   In its report in the case of X. Y. and Z. (No. 21830/93 Comm.

Report 27.6.95 pending before the Court and which concerns primarily

respect for family life), the Commission was of the opinion that there

was a clear trend in Contracting States towards the legal

acknowledgement of gender re-assignment (see eg. the specific domestic

legislation of Germany, Italy, the Netherlands, Sweden and Turkey,

and also the Recommendation 1117(1989) of the Parliamentary Assembly

of the Council of Europe on the condition of transsexuals, which

recommends the introduction of legislation by member States, inter

alia, to allow the rectification of birth registers). It further notes

a recent development in the law of the European Union, extending

protection to transsexuals in the employment sphere, the European Court

of Justice finding that the dismissal of a transsexual because of

gender re-assignment constituted discrimination on grounds of sex,  As

the Government have pointed out, the judgment is limited in its scope

and does not purport to give any opinion on the issues in this

application. The Commission considers however that the judgment is a

further authoritative recognition of the right of transsexuals to

respect for their dignity and freedom on a footing of equality with

non-transsexuals.

53.   As regards the scientific and medical developments to which the

applicant refers, the Commission notes that the recent findings as to

similarity in brain structure between biological females and male-to-

female transsexuals are not, and are not claimed to be, conclusive or

exhaustive. It agrees with the Government who point to the complexity

of this area of continuing research. It is of the opinion however that

it is more significant, whatever the cause of transsexualism (hormonal

action on the brain of the foetus or young child, social and

environmental influences, or a combination of any number of factors),

that the medical profession has reached a consensus that transsexualism

is an identifiable medical condition, gender dysphoria, in respect of

which gender re-assignment treatment is ethically permissible and can

be recommended for the purpose of improving the quality of life. As a

result, the treatment is not only accessible, but provided by State

medical establishments in a number of the Contracting States of the

Council of Europe. In these circumstances, a certain social reluctance

to accept, or suspicion of, the phenomenon of transsexualism and

difficulties in assimilating it readily into existing legal frameworks

cannot, in the Commission's view, be of decisive weight. It recalls

that the social problems surrounding children born out of wedlock in

previous years were not found to justify legal exclusion (see eg. Eur.

Court H.R., Inze judgment of 28 October 1987, Series A no. 126).

54.   Having regard to the above, the Commission finds that the

concerns put forward by the Government, even having regard to their

margin of appreciation, are not sufficient to outweigh the interests

of the applicant. Consequently, it finds that there has been a failure

to respect her right to private life.

      CONCLUSION

55.   The Commission concludes, by 15 votes to 1, that there has been

a violation of Article 8 (Art. 8) of the Convention.

D.    As regards Article 12 (Art. 12) of the Convention

56.   Article 12 (Art. 12) of the Convention provides:

      "Men and women of marriageable age have the right to marry and

      to found a family, according to the national laws governing the

      exercise of this right."

57.   The applicant complains of a violation of her right to marry,

since her change of gender is not taken into account and since she has

been recorded at birth as being of the male sex, marriage to another

person of the male sex is prohibited.

58.   The Government submit that there is no interference under this

provision, since the Court and Commission have recognised that marriage

may legitimately be restricted under national laws to union between a

man and woman of biological origin.

59.   The Commission recalls that in the Rees and Cossey cases the

Court held that there was no violation of Article 12 (Art. 12) in

relation to the complaints of the applicants, transsexuals, that they

were unable to marry a person of the sex opposite to their gender re-

assignment. The Court (Cossey, paras. 45-46) stated that the criteria

adopted by English law were in conformity with the concept of marriage

to which Article 12 (Art. 12) refers and that the continued adoption

of biological criteria for determining a person's sex for the purpose

of marriage was a matter encompassed within the power of Contracting

States to regulate by national law the exercise of the right to marry.

The Commission followed this case-law in its decision on admissibility

in the case of X., Y. and Z. (dec. 1.12.94 annexed to its report,

op. cit.).

60.   Having regard to its conclusion above that there has been a

failure to respect private life (para. 55), the Commission finds it

unnecessary to examine separately the complaints under Article 12

(Art. 12) of the Convention.

      CONCLUSION

61.   The Commission concludes, by 9 votes to 7, that the applicant's

complaint under  Article 12 (Art. 12) of the Convention does not give

rise to any separate issue.

E.    As regards Article 14 (Art. 14) of the Convention

62.   Article 14 (Art. 14) provides:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

63.   The applicant complains that she is subject to discrimination as

regards the inconsistency in practice of rectification of birth

certificates as carried out by the United Kingdom authorities. This

subjects her to an unjustifiable difference of treatment in respect of

her rights under Articles 8 and 12 (Art. 8,12) of the Convention

64.   As regards the alleged discrimination, the Government consider

that the applicant receives the same treatment as all persons in her

position who have undergone gender re-assignment surgery. She cannot,

in their submission, seek to compare herself with the category of

persons who obtain rectification of the birth register as a result of

a mistake made at the time of registration.

65.   The Commission recalls its findings above concerning the

applicant's complaints under Articles 8 and 12 (Art. 8,12) of the

Convention (paras. 55 and 61). In these circumstances it finds it

unnecessary to determine separately whether this situation also

discloses discrimination contrary to Article 14 (Art. 14) of the

Convention.

      CONCLUSION

66.   The Commission concludes, unanimously, that the applicant's

complaint under  Article 14 (Art. 14) of the Convention does not give

rise to any separate issue.

F.    As regards Article 13 (Art. 13) of the Convention

67.   Article 13 (Art. 13) of the Convention provides:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

68.   The applicant submits that she has no effective remedy available

to her in respect of her complaints. She states that case-law referring

to the inapplicability of Article 13 (Art. 13) to legislation is

irrelevant since there has been no legislative determination of the

issues before the Commission.

69.   The Government submit that established case-law (eg. Eur. Court

H.R. Lithgow and others judgment of 8 July 1986, Series A no. 102,

para. 206) indicate that insofar as the applicant complains about the

content of legislation Article 13 (Art. 13) does not require a remedy

to be provided in domestic courts.

70.   The Commission notes that the applicant's complaints of alleged

violations relate essentially to the state of United Kingdom law which

fails to recognise the applicant's gender re-assignment. Article 13

(Art. 13) cannot however be interpreted as guaranteeing a remedy

against, or judicial review of, domestic law (whether legislative or

based on judicially developed common law) which is not considered to

be in conformity with the Convention (mutatis mutandis, Application No.

10243/83, Dec. 6.3.85, D.R. 41 p. 123 and Young, James and Webster v.

the United Kingdom, Comm. Rep. 14.12.79, para. 177, Eur. Court H.R.,

Series B no. 39, p. 49, paras. 174-178).

      CONCLUSION

71.   The Commission concludes, unanimously, that there has been no

violation of Article 13 (Art. 13) of the Convention.

G.    Recapitulation

72.   The Commission concludes, by 15 votes to 1, that there has been

a violation of Article 8 (Art. 8) of the Convention (para. 55).

73.   The Commission concludes, by 9 votes to 7, that  the applicant's

complaint under  Article 12 (Art. 12) of the Convention does not give

rise to any separate issue (para. 61).

74.   The Commission concludes, unanimously, that the applicant's

complaint under  Article 14 (Art. 14) of the Convention does not give

rise to any separate issue (para. 66).

75.   The Commission concludes, unanimously, that there has been no

violation of Article 13 (Art. 13) of the Convention (para. 71).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                        (Or. English)

           PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE,

         MM. J.-C. GEUS, J. MUCHA, P. LORENZEN and  K. HERNDL

      The majority of the Commission have determined that in view of

the conclusion (para. 55 above) that as there has been a failure to

respect private life it was unnecessary to examine separately the

complaint under Article 12 of the Convention.  We do not share this

view.

      We would observe that a key principle under Article 12 is that,

while the exercise of the right to marry is subject to the national

laws of the Contracting States, the limitations introduced must not

restrict or reduce the right in such a way or to such an extent that

the very essence of the right is impaired (Rees op.cit. p. 19 para. 50,

Cossey op. cit. p. 17 para. 43).  It must be acknowledged that the lack

of legal recognition of the applicant's change of gender effectively

denies her the right to marry. Under domestic law, she is regarded as

male and cannot marry a man. The Commission has found that the right

to respect for private life of the applicant has been violated as a

result of the lack of legal recognition of her change of gender which

has significant and potentially damaging effects in the personal

sphere.  We believe it neither necessary nor helpful to enter into any

assessment of whether the current biological criteria governing

domestic law definitions of gender identity for the purposes of

marriage are any less valid at the present time. However, in a

situation where transsexuals take on fully the social role of their

gender re-assignment, and in which legal recognition is required in

order to accord with that social reality, we consider that it is

incompatible with Article 12 to exclude transsexuals, such as the

applicant in the present case, from effectively exercising the right

to marry guaranteed to everyone under the Convention. No objections,

apart from the requirements of national law, have been put forward by

the Government. Having regard to the  fundamental objectives of the

Convention, the very essence of which is respect for human dignity and

human freedom, we are of the opinion that no convincing or objective

grounds exist for such exclusion.  Accordingly, our conclusion is that

there has been a violation of Article 12 of the Convention.

                                                        (or. English)

             PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

      As to Article 8

      The complaint declared admissible is that the lack of legal

recognition of the applicant's gender reassignment discloses a lack of

respect for her private life.  The majority of the Commission has

acknowledged the difficulties in "assimilating" the phenomenon of

transsexualism readily into existing legal frameworks but found that

the failure to so assimilate the phenomenon constitutes a failure to

respect the applicant's private life (paras. 53 and 54 of the Report).

      The applicant goes rather further.  She wishes to be protected

against any obligation to reveal her former name or birth gender when

asked a direct question by public authorities within certain contexts

(court appearances or for the purpose of confidential social security

records) or by private bodies within certain contractual situations

(insurance or employment contracts).

      As the law stands the applicant is not required in her daily life

to carry an identity card revealing her birth gender and there has been

no legal or practical barrier to her changing her name.  Her passport

and driving licence do not reveal her past identity.  The situation is

therefore clearly distinguishable from that in B. v. France (Judgment

of 25 March 1992, Series A. No. 232-C).  It is closer to that

prevailing in the Rees and Cossey Cases (Judgments of 17 October 1986

and 27 September 1990 respectively, Series A. Nos. 106 and 184).  At

paragraph 52 and a relevant footnote to the Report the Commission

refers to changes in the law in about twelve countries to assimilate

the phenomenon of transsexuality.  It is not clear whether these are

countries where identity cards are in daily use or whether any of the

laws would protect the applicant against revealing information about

her past in response to a direct question from a body with a legitimate

interest in tracing past records.  Certainly the Private Members' Bill

presented to the House of Commons by Mr. Alex Carlisle and intended to

provide for  the registration and civil status of transsexuals does not

attempt to deal with these difficult questions.

      The law has in fact developed since the case of B. v. France as

a result of the law of the European Union to give, in the majority's

words (with which I agree) "authoritative recognition of the right of

transsexuals to respect for their dignity and freedom on a footing of

equality with non-transsexuals" in the field of employment (para. 52

of the Report).  The precise ramifications of the European Court of

Justice judgment have yet to be established and in particular its

impact, if any, on any existing European Union law savers for different

treatment of the sexes in areas of employment calling for a

particularly intimate relationship between the employee and a member

of the public and designed to respect the sensitivities of particular

members of the public, such as the relationship between nurse and

patient.  Its significance for Convention law is arguable, as the

Convention does not govern employment matters generally although it may

create positive obligations to protect against harassment

(Whiteside v. UK DR. 76A, 80).

      The Commission has noted at para. 53 of the Report that

scientific and medical developments since the Rees and Cossey Cases are

neither conclusive nor exhaustive.

      While one sympathises with the applicant's wish not to be asked

questions about her past history, it seems that this concern would not

be answered by the consequential remedy: the introduction in the

Respondent State of a short-form birth certificate omitting mention of

sex or of some kind of official documentation of current social gender

which would be sufficiently widely used not to be associated with

transsexuals (notwithstanding that the introduction of documentation

of the latter type would run counter to that and other States' popular

and long-standing concept of civil liberties and their non-reliance on

any identity card system). It appears to me that she has not shown that

her private daily life has been so affected in concrete terms as to

mean that there is an obligation under Article 8 for the State to take

positive measures to further assist her in concealing her past.  In the

case of B. v. France, in which I had the honour of presenting the

Commission's Report to the Court, there was (in the form of inter alios

an identity card and invoices and cheques indicating that applicant's

former name and masculine form of address) clear evidence of painful

embarrassment and the risk of being compelled to disclose personal

medical history merely in the course of routine and economic daily

life.  I consider that the present case is clearly distinguishable and

much more abstract in nature.

      As to Article 12

      For the reasons given by the Court in the Cossey case I consider

that there has been no violation.

                                                        (Or. English)

           PARTIALLY DISSENTING OPINION OF MR. L. LOUCAIDES

      I do not share the view of the majority that, since the

Commission found that the lack of legal recognition of applicant's

gender reassignment discloses a lack of respect for her private life,

it was unnecessary to examine separately the applicant's complaint

under Article 12 of the Convention.

      It is true that the lack of recognition of the applicant's gender

reassignment is a legal impediment to the exercise of the applicant's

right to marry.  However in the case of transsexuals the right to marry

does not entirely depend on the legal recognition of an individual's

gender.  The gender reassignment of a person like the applicant may be

legally recognised under the national laws of a State and yet she may

not be able to exercise the right to marry under the same laws insofar

as they may adopt biological criteria for determining a person's sex

for the purpose of marriage.  In fact this is the position in the

United Kingdom.

      In this respect it should be recalled that in the Rees and Cossey

cases (loc. cit) the Court held that there was no violation of Article

12 in relation to the complaints of the applicants, transsexuals, that

they were unable to marry a person of the sex opposite to their gender

reassignment.  The Court (Cossey paras. 44-46) stated that the criteria

adopted by English law were in conformity with the concept of marriage

to which Article 12 refers.

      Notwithstanding the conclusion, which I also personally adopt,

that there has been a failure to respect the applicant's private life,

I find no ground justifying departure from the above case-law.  The

finding of a violation under Article 8 was based on the real and

continuing risk of embarrassment or intrusion in private life against

which there were no countervailing public concerns.  Article 12

expressly provides that the exercise of the right to marry shall be

subject to the national laws of the Contracting States.  There are no

intervening developments which would constitute sufficient ground to

differ from the Court's view that national law may regulate marriage

as being between men and women defined by biological criteria.  The

research into the phenomenon of transsexualism is far from establishing

any decisive or conclusive findings as to any new biologically-based

definition of sexual identity.

      It may be useful to stress here that "private life" and

"marriage" are two different concepts, the scope and protection of

which are governed by different factors and considerations.  The right

to respect for private life does not automatically coincide with the

right to marry.  The right to marry also has consequences for the other

party to the marriage whose legitimate interests the law may be

expected to protect.  A transsexual may have a right to have his gender

reassignment legally recognised as part of his private life but when

it comes to his right to marry the biologically-based definition of his

sexual identity may have to be maintained.  This not only because it

is in accordance with the concept of marriage in the context of Article

12 of the Convention but also in order to protect the legitimate

expectations of the other party to the marriage to know the gender

status of his partner on the basis of biological criteria. This status

is interwoven with the sexual life of the couple and their capacity to

have children which are significant elements in a relationship of

marriage.

      In the light of the above, I find that there has been no

violation of Article 12 in this case.