Lexploria

Application No. 11095/84

W.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 7 March 1989)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

A. The application

(paras. 2 - 5) ............................... 1

B. The proceedings

(paras. 6 - 9) ............................... 1

C. The present Report

(paras. 10 - 14) ............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 30) .................................... 3

A. The particular circumstances of the case

(paras. 15 - 18) ............................. 3

B. Relevant domestic law and practice

(paras. 19 - 30) ............................. 3

III. OPINION OF THE COMMISSION

(paras. 31 - 43) ..................................... 7

A. Points at issue

(para. 31) ................................... 7

B. Article 8 of the Convention

(paras. 32 - 38) ............................. 7

C. Article 12 of the Convention

(paras. 39 - 41) ............................. 12

D. Recapitulation

(paras. 42 - 43) ............................. 13

Partially dissenting opinion of Mr. Schermers ................ 14

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 17

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 18

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 on 25 May 1940 and

living in London. She is represented by Messrs. Winstanley-Burgess,

Solicitors in London.

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

respondent Government are represented by their Agent, Mr. M.C. Wood,

Foreign and Commonwealth Office.

4. The applicant is a transsexual who was registered at birth as

being of male sex. When adult the applicant underwent extensive

medical and surgical treatment changing sex from male to female.

5. The applicant complains that under United Kingdom law she

cannot claim full recognition of her changed status and cannot

marry a person of male sex and adopt children with a male partner.

She invokes in particular Articles 8 and 12 of the Convention.

B. The proceedings

6. The application was introduced on 16 August 1984 and

registered on 21 August 1984. On 6 May 1985 the Commission decided

in accordance with Rule 42 (2) (b) of its Rules of Procedure to give

notice of the application to the respondent Government. In view of

an analogous application, No. 9532/81, Rees v. United Kingdom (see

para. 18 below), which had been declared admissible on 14 March 1984

and was at the time still pending before the European Court of Human

Rights, the respondent Government stated in a letter of 8 July 1985

that they did not object to the Commission declaring the complaints

under Articles 8 and 12 of the Convention admissible.

7. On 10 October 1985 the Commission declared the application

admissible. It found that the case raised issues under Articles 8 and

12 of the Convention, analogous to those in the Rees case, but not

under Article 3 of the Convention which had also been invoked by the

applicant. The Commission then adjourned the examination of the

application pending the Court's judgment in the Rees case.

8. On 10 December 1986, following the Court's judgment in that

case, the Commission resumed the examination of the present case

and on 9 May 1987 it decided to request the parties to submit such

further observations as they wished to make in the light of that

judgment. The applicant submitted further observations on 25 August 1987,

while the respondent Government stated in a letter of 16 June 1987 that

they saw no necessity to submit supplementary observations. In a

further letter dated 29 September 1987 the Government stated that they

did not wish to reply to the applicant's last submissions.

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

accordance with Article 28 para. b of the Convention, also placed

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

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

10. 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:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

M. F. MARTINEZ

Mrs. J. LIDDY

11. The text of this Report was adopted on 7 March 1989 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

13. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14. 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. The particular circumstances of the case

15. The applicant was born as a boy and registered as such in the

birth register under the christian names Richard Timothy Scott.

Growing up she became more and more aware of the conflict between her

sense of femininity and her male physique. However, influenced by the

attitude of her family she married in 1964 and had two children. The

couple separated in 1967. Subsequently, the applicant started to

undergo hormonal therapy but the social pressure became so great that

she stopped the treatment. She married again and had two more

children by the second wife. The couple separated in 1978 and in the

autumn of 1979 the applicant consulted the gender identity clinic of

Charing Cross Hospital, London. She was prescribed hormone therapy in

preparation for gender reassignment surgery which was performed in

October 1983. Although the applicant had been accepted for National

Health Service surgery, the waiting list obliged her to arrange for

private surgery. The surgical treatment has led to the removal of

masculine external characteristics. The hormone treatment has led to

the appearance of secondary feminine characteristics.

16. The applicant now considers herself a woman and is socially

accepted as such. She adopted a female identity and arranged for

all her documentation to be appropriately adapted. Her National

Health Service medical card, her driving licence and her passport

were altered to show her female identity. The Department of Health

and Social Security informed the applicant in a letter of

22 February 1982 that her records had been changed to a female

title and name but that this change would in no way affect her

liability and her benefit entitlements which remained those of a man.

17. On 10 May 1982 the applicant changed her name by statutory

declaration to Rachel Terry Scott W. The applicant did not apply for

an amendment of her birth register and birth certificate to record the

change in her status from male to female as there is no provision in

the United Kingdom law allowing that such an alteration of the entries

in the register be made (see para. 18 in fine).

18. The above-mentioned case of Rees was decided by the European

Court of Human Rights on 17 October 1986 with the finding that there

was no violation of Articles 8 and 12 of the Convention (Series A

no. 106). The applicant in that case was born in 1942 as a child of

female sex and had been recorded in the birth register as a female.

In 1974 he had undergone medical treatment for physical sexual

conversion. He changed his names to male names and had been living as

a male but had not been allowed to change the indication of his sex in

the birth register.

B. Relevant domestic law and practice

1. Medical treatment

19. In the United Kingdom sexual reassignment operations are

permitted without legal formalities. The operations and treatment may

be carried out under the National Health Service.

2. Change of name

20. Under English law a person is entitled to adopt such first

names or surname as he or she wishes and to use these new names

without any restrictions or formalities, except in connection with the

practice of some professions where the use of the new names may be

subject to certain formalities (see, inter alia, Halsbury's Laws of

England, 4th ed., vol. 35, para. 1176). For the purposes of record

and to obviate the doubt and confusion which a change of name is

likely to involve, the person concerned very frequently makes a

declaration in the form of a "deed poll" which may be enrolled with

the Central Office of the Supreme Court.

The new names are valid for purposes of legal identification

(see Halsbury's Laws of England, loc. cit., para. 1174) and may be

used in documents such as passports, driving licences, car

registration books, national insurance cards, medical cards, tax

codings and social security papers. The new names are also entered

on the electoral roll.

3. Identity documents

21. Civil status certificates or equivalent current identity

documents are not in use or required in the United Kingdom. Where

some form of identification is needed, this is normally met by the

production of a driving licence or a passport. These and other

identity documents may, according to the prevailing practice, be

issued in the adopted names of the person in question with a minimum

of formality. In the case of transsexuals, the documents are also

issued so as to be in all respects consistent with the new identity.

Thus, the practice is to allow the transsexual to have a current

photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms."

or "Miss", as appropriate, before his or her adopted names.

4. The Register of Births

22. The system of civil registration of births, deaths and

marriages was established by statute in England and Wales in 1837.

Registration of births is at present governed by the Births and Deaths

Registration Act 1953 ("the 1953 Act"). The entry into force of this

Act entailed no material change to the law in force in 1940, the date

of the applicant's birth. The 1953 Act requires that the birth of

every child be registered by the Registrar of Births and Deaths for

the area in which the child is born. The particulars to be entered

are prescribed in regulations made under the 1953 Act.

A birth certificate takes the form either of an authenticated

copy of the entry in the register of births or of an extract from the

register. A certificate of the latter kind, known as a "short

certificate of birth", is in a form prescribed and contains such

particulars as are prescribed by regulations made under the 1953 Act.

The particulars so prescribed are the name and surname, sex, date of

birth and place of birth of the individual.

An entry in a birth register and the certificate derived

therefrom are records of facts at the time of birth. Thus, in England

and Wales the birth certificate constitutes a document revealing not

current identity, but historical facts. The system is intended to

provide accurate and authenticated evidence of the events themselves

and also to enable the establishment of the connections of families

for purposes related to succession, legitimate descent and

distribution of property. The registration records also form the

basis for a comprehensive range of vital statistics and constitute an

integral and essential part of the statistical study of population and

its growth, medical and fertility research and the like.

23. The 1953 Act provides for the correction of clerical errors,

such as the incorrect statement or omission of the year of the birth,

and for the correction of factual errors; however, in the latter case,

an amendment can be made only if the error occurred when the birth was

registered. The birth register may also, within twelve months from

the date of registration, be altered to give or change the name of a

child and re-registration of a birth is permitted where the child has

been legitimated. In addition, under the Adoption Act 1958, where a

child is adopted, the register of births is to be marked with the word

"adopted"; the adoption is also registered in the Adopted Children

Register and a short certificate of birth may be obtained which

contains no reference to parentage or adoption.

24. The criteria for determining the sex of the person to be

registered are not laid down in the 1953 Act nor in any of the

regulations made under it. However, the practice of the Register

General is to use exclusively the biological criteria: chromosomal,

gonadal and genital sex. The fact that it becomes evident later in

life that the person's "psychological sex" is at variance with these

biological criteria is not considered to imply that the initial entry

was a factual error and, accordingly, any request to have the initial

entry changed on this ground will be refused. Only in cases of a

clerical error, or where the apparent and genital sex of the child was

wrongly identified or in case of biological intersex, i.e. cases in

which the biological criteria are not congruent, will a change of the

initial entry be contemplated and it is necessary to adduce medical

evidence that the initial entry was incorrect. However, no error is

accepted to exist in the birth entry of a person who undergoes medical

and surgical treatment to enable that person to assume the role of the

opposite sex.

25. The birth registers and the indexes of all the entries are

public. However, the registers themselves are not readily accessible

to the general public as identification of the index reference would

require prior knowledge not only of the name under which the person

concerned was registered, but also of the approximate date and place

of birth and the Registration District.

26. The law does not require that the birth certificate be

produced for any particular purpose, although it may in practice be

requested by certain institutions and employers.

A birth certificate has in general to accompany a first

application for a passport, although not for its renewal or

replacement. A birth certificate is also generally (though not

invariably) required by insurance companies when issuing pension or

annuity policies, but not for the issue of motor or household policies

nor, as a rule, for the issue of a life insurance policy. It may

also be required when enrolling at a university and when applying for

employment, inter alia, with the Government.

5. Marriage

27. In English law, marriage is defined as a voluntary union for

life of one man and one woman to the exclusion of all others (per Lord

Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130,

133). Section 11 of the Matrimonial Causes Act 1973 gives statutory

effect to the common-law provision that a marriage is void ab initio

if the parties are not respectively male and female.

28. According to the decision of the High Court in Corbett v.

Corbett (1971) Probate Reports 83, sex, for the purpose of contracting

a valid marriage, is to be determined by the chromosomal, gonadal and

genital tests where these are congruent. The relevance of a birth

certificate to the question whether a marriage is void only arises as

a matter of evidence which goes to the proof of the identity and sex

of the person whose birth it certifies. The entry in the birth

register is prima facie evidence of the person's sex. It may, however,

be rebutted if evidence of sufficient weight to the contrary is

adduced.

29. If, for the purpose of procuring a marriage or a certificate

or licence for marriage, any person knowingly and wilfully makes a

false oath or makes or signs a false declaration, notice or

certificate required under any Act relating to marriage, he or she is

guilty of an offence under Section 3 (1) of the Perjury Act 1911.

However, a person contracting a marriage abroad is not liable to

prosecution under this Act.

6. The legal definition of sex for other purposes

30. The biological definition of sex laid down in Corbett v.

Corbett has been followed by English courts and tribunals on a number

of occasions and for purposes other than marriage.

In the Rees case the applicant had drawn the Court's attention

to the following cases. In one case concerning prostitution, a male

to female transsexual, who had undergone both hormone and surgical

treatment, was nevertheless treated as a male by the Court of Appeal

for the purposes of Section 30 of the Sexual Offences Act 1956 and

Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others

1983, <1983> 2 All England Law Reports 12). In two cases concerning

social security legislation, male to female transsexuals were

considered by the National Insurance Commissioner as males for the

purpose of retirement age; in the first case the person in question

had only received hormone therapy, in the second she had involuntarily

begun to develop female secondary characteristics at the age of 46,

which developments were followed by surgery and adoption of a female

social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980

Volume of National Insurance Commissioner Decisions). Lastly, in a

case before an Industrial Tribunal a female to male transsexual, who

had not undergone any sex change treatment, was treated as a female by

the Tribunal for the purposes of the Sex Discrimination Act 1975; the

person in question had sought and received employment in a position

reserved for men under the Factories Act, but was dismissed after

discovery of her biological sex (White v. British Sugar Corporation

Ltd. <1977> Industrial Relations Law Report p. 121).

III. OPINION OF THE COMMISSION

A. Points at issue

31. The points at issue in the present application are

- whether there has been a violation of the applicant's

right, under Article 8 (Art. 8) of the Convention, to respect

for her private life, in that, under United Kingdom

law, she cannot claim recognition of her present status

by a change of the birth register and the birth

certificate; and

- whether there has been a violation of Article 12 (Art. 12) of

the Convention, in that, under United Kingdom law,

she cannot marry a person of male sex and adopt

children with a male partner.

B. Article 8 (Art. 8) of the Convention

32. Article 8 (Art. 8) of the Convention provides:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

33. The applicant submits that since her application was made she

has become a councillor at the London Borough of Lambeth. During the

course of her electoral campaign for this position she allegedly

suffered vilification in press reports. She considers that, had

her sexual identity been harmonised by law, such prurient interest

in her sexual identity would have been greatly reduced. The applicant

criticises the Court's reasoning in the Rees case. She states that

the applicant in that case required the United Kingdom to pass

legislation to recognise Mr. Rees as a man. Such legislation would

have no effect on the rest of the population apart from the comforting

consideration that they could categorise their fellow citizens into

male and female once more and eliminate the present third category of

ambiguists. Furthermore, the Court's reasoning relating to Mr. Rees'

request that an annotation be made in the birth register about the

change of sex and that this annotation be kept secret from third

parties missed the point. The Court considered that secrecy could

prejudice the purpose and function of the birth register. The

applicant submits that under the present adoption system the public

are not allowed access to a register on which the original particulars

of the adopted persons are recorded. Accordingly, the principle of

public access had already been breached in the interests of social

policies. Further, if the Court considered that the requirement of

access to the register was of critical importance, there was no reason

why it could not have required the endorsement of the change of sex on

the register without the restriction of access to the amended

register. While this solution would not be considered adequate by the

applicant, it would have presented an advance on the present position

in the United Kingdom and would require the authorities to recognise

that something significant had happened to the individual's identity.

34. The applicant further points out that the change of name in

documents such as driving licence and passport has no legal

significance for a person's sexual identity. The documents in

question are documents of description only and not of legal

identity.

35. The respondent Government consider the applicant's criticisms

of the judgment in the Rees case to be ill-founded. It is submitted

that the applicant's assertion that members of the public are not

allowed access to a register in which the original particulars of

adopted persons are recorded is incorrect. The law requires that

certified copies (certificates) be issued from an entry which has been

marked "adopted" to any person who can identify the entry from the

indexes. Thus, access to the original birth record of a person who

has been adopted is no different from any other birth entry.

36. As regards compliance with Article 8 (Art. 8) of the Convention by the

United Kingdom in relation to transsexuals, the Commission refers to

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

Vol. 106, p. 15-18 paras. 38-46) in which the Court stated:

"38. Transsexualism is not a new condition, but its

particular features have been identified and examined only

fairly recently. The developments that have taken place in

consequence of these studies have been largely promoted by

experts in the medical and scientific fields who have drawn

attention to the considerable problems experienced by the

individuals concerned and found it possible to alleviate

them by means of medical and surgical treatment. The term

'transsexual' is usually applied to those who, whilst

belonging physically to one sex, feel convinced that they

belong to the other; they often seek to achieve a more

integrated, unambiguous identity by undergoing medical

treatment and surgical operations to adapt their physical

characteristics to their psychological nature. Transsexuals

who have been operated upon thus form a fairly well-defined

and identifiable group.

39. In the United Kingdom no uniform, general

decision has been adopted either by the legislature or by

the courts as to the civil status of post-operative

transsexuals. Moreover, there is no integrated system of

civil status registration, but only separate registers for

births, marriages, deaths and adoption. These record the

relevant events in the manner they occurred without, except

in special circumstances ..., mentioning changes (of name,

address, etc.) which in other States are registered.

40. However, transsexuals, like anyone else in the

United Kingdom, are free to change their first names and

surnames at will ... Similarly, they can be issued with

official documents bearing their chosen first names and

surnames and indicating, if their sex is mentioned at all,

their preferred sex by the relevant prefix (Mr., Mrs., Ms.

or Miss) ... This freedom gives them a considerable

advantage in comparison with States where all official

documents have to conform with the records held by the

registry office.

Conversely, the drawback - emphasised by the

applicant - is that, as the country's legal system makes no

provision for legally valid civil-status certificates, such

persons have on occasion to establish their identity by

means of a birth certificate which is either an

authenticated copy of or an extract from the birth register.

The nature of this register, which furthermore is public, is

that the certificates mention the biological sex which the

individuals had at the time of their birth ... The

production of such a birth certificate is not a strict

legal requirement, but may on occasion be required in

practice for some purposes ...

It is also clear that the United Kingdom does not

recognise the applicant as a man for all social purposes.

Thus, it would appear that, at the present stage of the

development of United Kingdom law, he would be regarded as a

woman, inter alia, as far as marriage, pension rights and

certain employments are concerned ... The existence of the

unamended birth certificate might also prevent him from

entering into certain types of private agreements as a

man ...

41. For the applicant and the Commission this

situation was incompatible with Article 8 (Art. 8), there being in

their opinion no justification for it on any ground of

public interest. They submitted that the refusal of the

Government to amend or annotate the register of births to

record the individual's change of sexual identity cannot be

justified on any such ground. Such a system of annotation

would, according to the applicant, be similar to that

existing in the case of adoptions. The applicant and the

Commission pointed to the example of certain other

Contracting States which have recently made provision for

the possibility of having the original indication of sex

altered from a given date. The Commission additionally

relied on the fact that the United Kingdom, through its free

national health service, had borne the costs of the surgical

operations and other medical treatment which the applicant

had been enabled to undergo. They considered that this

medical recognition of the necessity to assist him to

realise his identity must be regarded as a further argument

for the legal recognition of the change in his sexual

identity; failure to do so had the effect that the applicant

was treated as an ambiguous being.

42. The Court is not persuaded by this reasoning.

(a) To require the United Kingdom to follow the

example of other Contracting States is from one perspective

tantamount to asking that it should adopt a system in

principle the same as theirs for determining and recording

civil status.

Albeit with delay and some misgivings on the part of

the authorities, the United Kingdom has endeavoured to meet

the applicant's demands to the fullest extent that its

system allowed. The alleged lack of respect therefore seems

to come down to a refusal to establish a type of documentation

showing, and constituting proof of, current civil status.

The introduction of such a system has not hitherto been

considered necessary in the United Kingdom. It would have

important administrative consequences and would impose new

duties on the rest of the population. The governing

authorities in the United Kingdom are fully entitled, in the

exercise of their margin of appreciation, to take account

of the requirements of the situation pertaining there in

determining what measures to adopt. While the requirement

of striking a fair balance ... may possibly, in the

interests of persons in the applicant's situation, call

for incidental adjustments to the existing system, it

cannot give rise to any direct obligation on the United

Kingdom to alter the very basis thereof.

(b) Interpreted somewhat narrowly, the

applicant's complaint might be seen as a request to have

such an incidental adjustment in the form of an annotation

to the present birth register.

Whilst conceding that additions can be made to the

entries in the birth register in order to record, for

example, subsequent adoption or legitimation ..., the

Government disputed that the proposed annotation was

comparable to additions of this kind. They submitted that,

in the absence of any error or omission at the time of

birth, the making of an alteration to the register as to the

sex of the individual would constitute a falsification of

the facts contained therein, and would be misleading to

other persons with a legitimate interest in being informed

of the true situation. They contended that the demands of

the public interest weighed strongly against any such

alteration.

The Court notes that the additions at present

permitted as regards adoption and legitimation also concern

events occurring after birth and that, in this respect, they

are not different from the annotation sought by the

applicant. However, they record facts of legal significance

and are designed to ensure that the register fulfils its

purpose of providing an authoritative record for the

establishment of family ties in connection with succession,

legitimate descent and the distribution of property. The

annotation now being requested would, on the other hand,

establish only that the person concerned henceforth belonged

to the other sex. Furthermore, the change so recorded could

not mean the acquisition of all the biological

characteristics of the other sex. In any event, the

annotation could not, without more, constitute an effective

safeguard for ensuring the integrity of the applicant's

private life, as it would reveal his change of sexual

identity.

43. The applicant has accordingly also asked

that the change, and the corresponding annotation, be kept

secret from third parties.

However, such secrecy could not be achieved without

first modifying fundamentally the present system for keeping

the register of births, so as to prohibit public access to

entries made before the annotation. Secrecy could also

have considerable unintended results and could prejudice

the purpose and function of the birth register by

complicating factual issues arising in, inter alia, the

fields of family and succession law. Furthermore, no

account would be taken of the position of third parties,

(e.g. life insurance companies) in that they would be

deprived of information which they had a legitimate interest

to receive.

44. In order to overcome these difficulties

there would have to be detailed legislation as to the

effects of the change in various contexts and as to the

circumstances in which secrecy should yield to the public

interest. Having regard to the wide margin of appreciation

to be afforded the State in this area and to the relevance

of protecting the interests of others in striking the

requisite balance, the positive obligations arising from

Article 8 (Art. 8) cannot be held to extend that far.

45. This conclusion is not affected by the fact,

on which both the Commission and the applicant put a certain

emphasis, that the United Kingdom co-operated in the

applicant's medical treatment.

If such arguments were adopted too widely, the

result might be that Government departments would become

over-cautious in the exercise of their functions and the

helpfulness necessary in their relations with the public

could be impaired. In the instant case, the fact that the

medical services did not delay the giving of medical and

surgical treatment until all legal aspects of persons in the

applicant's situation had been fully investigated and

resolved, obviously benefited him and contributed to his

freedom of choice.

46. Accordingly, there is no breach of Article 8

(Art. 8) in the circumstances of the present case."

37. The Commission considers that the present application does not

reveal a particular novel aspect of the situation of transsexuals in

the United Kingdom, distinguishing it from the situation in the Rees

case. In fact, it follows from paragraph 40 of the above-cited

judgment that the Court took into consideration that, at the present

stage of the development in the United Kingdom law, a transsexual is

not recognised in his/her new status, inter alia, as far as marriage,

pension rights and certain employments are concerned. The Court

consequently took into consideration all drawbacks for transsexuals of

the existing legal system. Nevertheless, it considered that "it must

for the time being be left to the United Kingdom to determine to what

extent it can meet the remaining demands of transsexuals" (loc. cit.,

para. 47).

38. Conclusion

The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in the present case.

C. Article 12 (Art. 12) of the Convention

39. 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 law governing the exercise of this right."

40. The applicant alleges a violation of this provision because

she cannot marry a man and adopt children with him. She submits that

her case is different from the Rees case as she could consummate

marriage with a man. She considers that the development of the

personality and self-fulfilment through a legally recognised

life-long union are as valid objectives encompassed by the right to

marry as the founding of a family by way of procreation.

As regards compliance with Article 12 (Art. 12) of the Convention by the

United Kingdom in relation to transsexuals, the Commission again

refers to the Rees judgment (loc. cit.), in which the Court stated in

this respect:

"48. The applicant complained of the undisputed fact

that, according to the law currently in force in the United

Kingdom, he cannot marry a woman. He alleged a violation of

Article 12 (Art. 12) , which provides:

...

The Government contested this; the Commission was

divided between two conflicting views.

49. In the Court's opinion, the right to marry

guaranteed by Article 12 (Art. 12) refers to the traditional marriage

between persons of opposite biological sex. This appears

also from the wording of the Article which makes it clear

that Article 12 (Art. 12) is mainly concerned to protect marriage as

the basis of the family.

50. Furthermore, Article 12 (Art. 12) lays down that the exercise

of this right shall be subject to the national laws of the

Contracting States. The limitations thereby introduced must

not restrict or reduce the right in such a way or to such an

extent that the very essence of the right is impaired.

However, the legal impediment in the United Kingdom on the

marriage of persons who are not of the opposite biological

sex cannot be said to have an effect of this kind.

51. There is accordingly no violation in the instant

case of Article 12 (Art. 12) of the Convention."

40. The Commission sees no reason to depart from these findings.

41. Conclusion

The Commission concludes, by 13 votes to 1, that there has been no

violation of Article 12 (Art. 12) of the Convention in the present case.

D. Recapitulation

42. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in the present case

(para. 38).

43. The Commission concludes, by 13 votes to 1, that there has been no

violation of Article 12 (Art. 12) of the Convention in the present case (para.

41).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting opinion of Mr. H.G. Schermers

In the Rees case (9532/81) which is analogous to the present

one the Commission unanimously found a violation of Article 8 of the

Convention (Eur. Court H.R., judgment of 12 December 1984, Series A,

N° 106, p. 27). The Court, however, found no breach of the Article

in its decision of 17 October 1986 (idem, p. 18).

With respect to Article 8, the Commission considered that the

present application did not reveal any new aspects in the

situation of transsexuals in the United Kingdom which distinguished it

from the situation in the Rees case (para. 37 of the Report). Feeling

obliged to follow the Court's decision in that case it concluded that

there had been no violation of Article 8 of the Convention.

Having regard to the importance of consistency between the

decisions of the Commission and the Court I saw no sufficient ground

for dissenting from that conclusion.

With respect to Article 12, the situation may be different,

however. In the Rees case the Commission found no violation of that

article. With some other members I supported that conclusion for the

following reasons:

"It is true that as things stand the applicant is

legally not entitled to marry a woman. This is, however,

not the result of a specific act on the part of the

respondent Government. It results directly from the fact

that the applicant is not recognised as a 'man', a matter of

which account has already been taken in connection with

Article 8 of the Convention. There is no reason to belive

that once this obstacle has been removed the applicant is

still not able to marry. Both from the applicant's point of

view and that of the respondent Government, the applicant's

complaint based on an alleged violation of Article 12 of the

Convention is thus in the last analysis identical with that

raised under Article 8. What he is complaining of is only

a necessary consequence of the violation of Article 8.

We conclude that there is no separate violation of

Article 12." (Quoted from Eur. Court H.R., Series A. no.

106, p. 27).

In the present case, where no violation of Article 8 has been

found, our opinion as to a possible violation of Article 12 must be

reconsidered.

Article 12 provides that "men and women of marriageable age

have the right to marry and to found a family according to the

individual laws governing the exercise of this right." The Article

contains two (interconnected) rights: the right to marry and the right

to found a family. Unlike Articles 8-11, Article 12 has no second

paragraph providing for interference with these rights by the public

authorities in exceptional circumstances. This underlines the

fundamental character of the right to marry and to found a family. In

principle, these rights cannot be set aside in the public interest,

and there are good reasons for that. The right to live in a family

and - when of marriageable age - to found a family is of paramount

importance for the individual. Denial of this right means

condemnation to solitude and loneliness. There must be strong

arguments to justify such a condemnation.

In my opinion the fundamental human right underlying Article

12 should also be granted to homosexual and lesbian couples. They

should not be denied the right to found a family without good reasons.

That question is not, however, at stake in the present case, which

concerns a person who, psychologically, is a woman, and who feels and

acts like a woman. The Commission, therefore, in ascertaining the

facts, under Article 28 of the Convention, would be entitled to hold

that for the purpose of Article 12 the applicant is a woman and

therefore should have the right to marry a man.

In this respect the Rees judgment of the Court would be no

obstacle. In that case, the Commission did not establish the sex of

the applicant specifically for the purpose of Article 12, as its

decision was founded on Article 8. It is not for the Court to

establish the facts and it did not actually do so in the Rees case.

Its reasoning with respect to Article 12 in that case is very short

(para. 48-51, entirely quoted in para. 40 of the above Report of the

Commission). It concerns only the right to marry, not the right to

found a family. The Court refers (in para 16 of its decision in the

Rees case, Series A. no. 106, p. 9) to the expert opinion of Dr.

Armstrong who mentions four criteria of sex - namely chromosomal sex,

gonadal sex, apparent sex and psychological sex - but in its decision

the Court only mentions "biological sex", without explaining what that

means. All four criteria of sex mentioned by Dr. Armstrong are

biological. In the final part of para. 42 of the Rees judgment (p.

18) the Court seems to accept that biological sex is not the same as

apparent sex, but that it hyas many different characteristics. In the

middle of para. 40 the Court refers to the "biological sex which the

individuals had at the time of their birth", thus implying that the

biological sex may change later. Therefore, the wording used by the

Court in the Rees case does not clearly exclude the marriage of two

persons of opposite pyschological sexes. But even if the Court wished

to express in the latter case that Mr. Rees was not of the male sex -

though referred to by the Court as "Mr" -, that does not prevent the

Commission from concluding that in the present case Mrs. W. is of

female sex, at least with regard to the application of Article 12.

My conclusion, therefore, is that, without contradicting

existing case law, the Commission could have found a violation of

Article 12 of the Convention in respect of the right to marry, and

more particularly in respect of the right to found a family.

So much for my legal reasoning. There is however one further

argument, which concerns the application of the principle of

proportionality, a moral principle which is at the same time one of

the fundamental principles of law. Almost any individual right may be

sacrificed when the higher interests of others or of the community so

require. But the interests involved should be carefully weighed up.

It is with good reason that scales are used as a symbol of justice.

In the present case all the rights and interests should be weighed.

In one pan of the scales we find the fundamental interests of a human

being. The applicant feels so strongly female that she underwent the

enormous inconvenience of an operation and treatment to change her

outward appearance from male to female. She feels strongly feminine

and wants to be a mother. Although she cannot bear children she could

adopt them if she were permitted to found a family. Her right to

family life, her right to play the ultimate feminine role of mother,

is at stake in one pan of the scales. What is there on the other side

to justify denying her that right, to justify ruining a human life?

I find very little on the other side of the scales. It has

been said that public order would be disturbed if persons of the same

sex could found a family. I doubt whether that is a valid argument,

but it is not in issue. The applicant is a woman or at least in many

respects can easily be regarded as a woman. The number of

transsexuals who have undergone operations to change their sex is so

limited that one cannot really expect disturbance of public order if

they are allowed to marry. Others consider that the social purpose of

Article 12 includes the physical capacity to procreate. Traditionally

this may indeed have been one of the purposes of marriage, but it is

not - in any case no longer - its only role in society. Its function

of establishing and preserving the family as the smallest and most

important unit of society is at least equally important. Furthermore,

it would be unacceptable discrimination if only those who are able to

procreate had the right to family life. Is there anything else

weighting on this side of the scales? Administrative difficulties?

More administrative efforts are made for the sake of many less

important human interests. As far as I can see no balance can be

struck between the two pans of the scales, when one contains the most

essential elements of the life of a human being and the other is

practically empty. The flagrant imbalance between the interests

involved is a clear indication that the situation is unsatisfactory.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

16 August 1984 Introduction of the application

21 August 1984 Registration of the application

Examination of admissibility

6 May 1985 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

8 July 1985 Government renounces submission of

observations in view of the Rees case

10 October 1985 Commission declares the application

admissible and adjourns its

examination of the merits pending the

outcome of the Rees case

Examination of the merits

10 December 1986 Commission's deliberations

9 May 1987 Commission's decision to invite

the parties to submit observations

on the merits in the light of the

Rees judgment

16 June 1987 Government's letter

25 August 1987 Applicant's observations

29 September 1987 Government's letter

6 May 1988 Commission considers state of

proceedings

7 March 1989 Commission's deliberations on the

merits, final vote and adoption of

the Report

Menu

W. v. THE UNITED KINGDOM

W. v. THE UNITED KINGDOM

LEXI