EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 23390/94

                            Rachel Horsham

                                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. 20-32). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   Particular circumstances of the case

           (paras. 20-25) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law and practice

           (paras. 26-31) . . . . . . . . . . . . . . . . . . . . . 3

      C.   Other relevant materials

           (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 33-75). . . . . . . . . . . . . . . . . . . . . . . . 5

      A.   Complaints declared admissible

           (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5

      B.   Points at issue

           (para. 34) . . . . . . . . . . . . . . . . . . . . . . . 5

      C.   As regards Article 8 of the Convention

           (paras. 35-55) . . . . . . . . . . . . . . . . . . . . . 5

           CONCLUSION

           (para. 56) . . . . . . . . . . . . . . . . . . . . . . .11

      D.   As regards Article 12 of the Convention

           (paras. 57-60) . . . . . . . . . . . . . . . . . . . . .11

           CONCLUSION

           (para. 61) . . . . . . . . . . . . . . . . . . . . . . .12

                           TABLE OF CONTENTS

                                                                 page

      E.   As regards Article 14 of the Convention

           (paras. 62-65) . . . . . . . . . . . . . . . . . . . . .12

           CONCLUSION

           (para. 66) . . . . . . . . . . . . . . . . . . . . . . .13

      F.   As regards Article 13 of the Convention

           (paras. 67-70) . . . . . . . . . . . . . . . . . . . . .13

           CONCLUSION

           (para. 71) . . . . . . . . . . . . . . . . . . . . . . .13

      G.   Recapitulation

           (paras. 72-75) . . . . . . . . . . . . . . . . . . . . .14

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

MM. J. MUCHA, P. LORENZEN AND K. HERNDL . . . . . . . . . . . . . .15

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . . . . .16

PARTIALLY DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . .18

APPENDIX I:      FINAL DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . .19

APPENDIX II:     PARTIAL DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . .26

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

Amsterdam. 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 25 August 1993 and registered

on 7 February 1994.

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.

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 was recorded at birth as being of the male sex.

21.   From 28 December 1983, the applicant lived in the Netherlands.

22.   From 1990, the applicant, who had been living as a female,

underwent psychotherapy and hormonal treatment and finally underwent

gender re-assignment surgery on 26 June 1992 at the Free University

Hospital, Amsterdam.

23.   On 11 September 1992, following an initial refusal, the United

Kingdom Consulate in Amsterdam issued a passport in the applicant's new

name which recorded the applicant's sex as female. She also obtained

a birth certificate issued by the register of births in The Hague which

recorded her new name and her sex as female, pursuant to an order by

the Amsterdam Regional Court dated 27 July 1992 that such a certificate

be issued.

24.   The applicant requested that her original birth certificate in

the United Kingdom be amended to record her sex as female. By letter

dated 20 November 1992, the Office of Population Censuses and Surveys

(OPCS) confirmed that there was no provision under United Kingdom law

for any new information to be inscribed on her original birth

certificate.

25.   The applicant states that she is forced to live in exile because

of the legal situation in the United Kingdom. She has a partner whom

she plans to marry.

B.    Relevant domestic law and practice

      Names

26.   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

27.   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

28.   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.

29.   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).

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

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

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

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

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

biological criteria is not considered to imply that the initial entry

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

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

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

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

the initial entry was incorrect.

      Social security, employment and pensions

31.   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

32.   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

33.   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

34.   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

35.   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."

36.   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. She refers to the fact that 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.

37.   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.  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 in the past, 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).

38.   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.

39.   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.

40.   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 official documents such as her British passport.

They dispute that the applicant suffers any less legal protection under

civil or criminal law than any other person.

41.   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 derive 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 the question 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.

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.

42.   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.

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

transsexuals on their private life in the United Kingdom has been

considered by the Commission and Court in two previous cases, Rees and

Cossey (Eur. Court H.R., Rees judgment of 17 October 1986, Series A

no. 106 and Cossey judgment of 27 September 1990, Series A no. 184).

44.   In Rees, the Court found no violation of the applicant's 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 as 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 measure

should be kept under review having regard particularly to scientific

and societal developments.

45.   When, almost four years later, the Cossey case 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

(op. cit.). It had regard to the developments which had occurred in the

interval. It considered that no scientific developments had taken place

and that 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, there was, in the

Court's view, still little common ground. It again repeated its comment

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

46.   In a case concerning France less than two years later, 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, and

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).

47.   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. Indeed the applicant has been living for the

past five years in the Netherlands where she has obtained a Dutch birth

certificate recording her gender re-assignment. The Government have not

sought to argue that she is as a result unable to claim to be a victim

for the purposes of Article 8 (Art. 8) of the Convention. The applicant

is a British citizen, states that she left the United Kingdom because

of the legal situation and that she would be subject to the alleged

restrictions if she returned to live there. Thus, it is not contested

by the Government that for legal purposes, the applicant, if living in

the United Kingdom, would still be regarded as of the sex recorded at

birth and that where there would be any difference in legal regimes

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

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

entitlements (see para. 31 above).  These instances differ considerably

in their immediacy. That they are not hypothetical however is

illustrated by another case raising similar issues, where the

applicant, in court as surety, was required to disclose her original

birth name which was in stark contradiction to her physical appearance

(Kristina Sheffield v. the United Kingdom, No. 22985/93 Comm. Rep.

21.1.97 para. 46).

48.   The Commission is of the opinion that the applicant may therefore

claim that she would be 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).

49.   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 (paras. 18 and 38) in relation to entering the change

of gender in the birth register. This explains 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, failing to detail any

specific instance of objectionable complications which could in fact

arise.

50.   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 or of continuing to be regarded as being of

the sex registered at birth for legal purposes. There is no reference

by the applicant to any fear of discovery or intrusion from third

parties obtaining access to the birth register.

51.   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.

52.   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.

53.   In its report in the case of X. Y. and Z. (op. cit., para. 67),

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.

54.   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 do not claim to be, conclusive or

exhaustive. It agrees with the Government who refer 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

or chemical 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).

55.   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

56.   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

57.   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."

58.   The applicant, who has a partner of the male sex, has stated that

she would wish to marry. She complains of a violation of her right to

marry, since her change of gender is not taken into account in the

United Kingdom and since she has been recorded at birth as being of the

male sex, marriage to another person of the male sex is prohibited. She

submits that notwithstanding the fact that she could marry in the

Netherlands, it is undoubtful that such marriage would be recognised

in the United Kingdom. According to English law, the capacity to marry

is governed by the law of each party's ante nuptial domicile. If the

domestic courts considered that she was still domiciled in the United

Kingdom, they would take the view that she was barred from contracting

a valid marriage with a male. If it was considered that she was

domiciled in the Netherlands, the test would suggest that her marriage

would be recognised since it would be valid under Dutch law. While

there is some ground in judicial dicta and academic textbooks for

suggesting that the English courts would nonetheless refuse to

recognise a marriage on the basis that it would be unconscionable and

offensive to the conscience of the English court, there are equally

indications that the courts might seek to exercise common sense, good

manners and reasonable tolerance since they have recognised polygamous

marriages validly contracted under the law of the parties' domicile.

The applicant submits that uncertainty as to whether or not she would

be seen as domiciled in the Netherlands or whether public policy would

exclude recognition is however deeply discouraging, imposes emotional

strain and undermines the usual marital basis for pooling property,

wills etc.

59.   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. They also point out that in any

event this applicant is able to contract marriage in the Netherlands

where she is now living. They basically agree that the question of

recognition of the marriage in the United Kingdom would depend on where

she was considered to be domiciled. Since, however, there is a strongly

arguable case that the courts would give recognition to the applicant's

marriage in the Netherlands if she was considered to be domiciled

there, the applicant by failing to seek an appropriate declaration in

the courts has not in fact established that her marriage would not be

recognised. In that respect she has failed to exhaust her domestic

remedies.

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

failure to respect private life (para. 56), the Commission finds it

unnecessary to examine separately the applicant's complaint under

Article 12 (Art. 12) of the Convention.

      CONCLUSION

61.   The Commission concludes, by 10 votes to 6, 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 her

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

(paras. **) 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. 56).

73.   The Commission concludes, by 10 votes to 6, 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. MUCHA, P. LORENZEN AND K. HERNDL

      In view of the conclusion arrived at in para. 56 that there has

been a violation of article 8 of the Convention, the majority of the

Commission have taken the view that it is unnecessary to examine

separately the complaint under Article 12.  We do not share this view.

We find that in the present case there is no violation of Article 12

for the following reasons.

      We would recall that the applicant has been living for some time

in the Netherlands, without any expressed intention of returning to the

United Kingdom.  Neither has she expressed any intention that she would

return to the United Kingdom after marriage or seek to be married in

the United Kingdom. We note that there is, on the view of both parties,

a possibility that, if the applicant is regarded as domiciled in the

Netherlands, a marriage validly contracted there would be recognised

by the courts under English law. In these circumstances, we find that

the applicant has not established that she is currently in a position

where the essence of her right to marry under Article 12 has been

substantially impaired by the legal situation pertaining in the United

Kingdom.

                                                        (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

      While on the facts of this case it may not be necessary to

consider the substance of the applicant's complaints under Article 12

(see the partially dissenting opinion of my colleagues Mrs. G.H. THUNE,

MM. J. MUCHA, P. LORENZEN and K. HERNDL).  I would refer to my

dissenting opinion in the case of Sheffield v. the United Kingdom

(No. 22985/93, Comm. Rep. 21.1.97) and find no violation for the

reasons given therein.