Lexploria

Application No. 10622/83

Paula JAMES

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 15 December 1988)

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 - 29) .................................... 3

A. The particular circumstances of the case

(paras. 15 - 17) ............................. 3

B. Relevant domestic law and practice

(paras. 18 - 29) ............................. 4

III. SUBMISSIONS OF THE PARTIES

(paras. 30 - 46) ..................................... 8

A. The applicant

(paras. 30 - 41) ............................. 8

B. The Government

(paras. 42 - 44) ............................. 11

IV. OPINION OF THE COMMISSION

(paras. 45 - 51) .................................... 12

A. Point at issue

(paras. 45 - 47) ............................. 12

B. Article 8 of the Convention

(paras. 48 - 50) ............................. 12

C. Conclusion

(para. 51) ................................... 16

Dissenting opinion of Mr. Ermacora ................... 17

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 18

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 19

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 10 August 1933 and

living in Guiseley, Leeds. She is represented by Mr. H.H. Storey of the

Harehills and Chapeltown Law Centre in Leeds.

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 she has undergone extensive medical and

surgical treatment changing her sex from male to female. Her request

to amend the entry in the birth register was not complied with.

5. The applicant complains that under United Kingdom law she

cannot claim full recognition of her changed status. She invokes

Articles 8, 10 and 14 of the Convention.

B. The proceedings

6. The application was introduced on 13 September 1983 and

registered on 19 September 1983. On 9 May 1984 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. 17 below), which had been declared admissible on 14 March 1984

and was at the time still pending before the Commission, the time-limit

for the submission of observations in the present case was suspended

pending the outcome of the Rees case.

7. On 12 March 1985 that case was brought before the European

Court of Human Rights. In a letter of 4 April 1985 the respondent

Government stated that they did not consider it appropriate to submit

any observations in the present case, as it raised the same issues

which had already been discussed in the Rees case.

8. On 5 July 1985 the application was declared admissible.

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

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

11. The text of this Report was adopted on 15 December 1988

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 Thomas Vincent. Her family

name was Galley. When grown up the applicant worked as a male nurse,

married and had two children. Later the applicant got divorced and

subsequently irreversibly altered her sex from male to female by way

of extensive medical and surgical treatment. Consequently she changed

her christian names and surname to Paula James. She received a new

passport containing her new names. The prefix "Ms." was, however,

only added at a later date.

16. Through her Member of Parliament the applicant then applied for

an amendment to her birth certificate to be made to record the change

in her status from male to female. This request was refused and

applicant's counsel were informed by the General Registrar's Office in

a letter of 11 October 1982 that there was no provision under the

relevant legislation to permit an amendment to record an event

subsequent to birth. In a letter of 2 August 1983 the General

Registrar's Office wrote to applicant's counsel that they were aware

of the result in the Van Oosterwijck application to the European

Commission of Human Rights and of the fact that an application

(No. 9532/81) made by a United Kingdom transsexual (Rees) was pending

before the European Commission of Human Rights. As no decision had

yet been reached with regard to the latter application, they

maintained their position as set out in the letter of 11 October 1982.

17. The applicant Rees, whose case 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), was born in 1942 as a child of female sex and had been

recorded in the birth certificate 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

certificate.

B. Relevant domestic law and practice

1. Medical treatment

18. 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

19. 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 formalitites (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

20. 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

21. 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 1933, 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 success, 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.

22. 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.

23. 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.

24. 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.

25. 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.

In particular, 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

26. 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.

27. 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.

28. 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 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

29. 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 has 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 he 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. SUBMISSIONS OF THE PARTIES

A. The applicant

30. The applicant considers that her case is distinguishable from

the Rees case in view of her age, the fact that she has undergone

sexual reassignment from male to female and that she was married in

the past and there are two children from the marriage.

31. She submits that in many areas of United Kingdom law the birth

certificate of a person is used to determine one's sex, and that

'adverse inferences' may be drawn from it in the case of a

transsexual, since a transsexual presents him/herself as being of one

sex and yet the birth certificate indicates otherwise. She considers

that the limits placed by the United Kingdom on the alteration of

birth certificates and the lack of legal protection for a transsexual

discriminated against on account of the 'adverse inferences' that stem

from the inconsistency of the certificate and the external appearance

of a transsexual, together amount to the following breaches of the

Commission :

1. Article 8

32. According to the applicant one aspect of the right to respect

for private life is the protection of an individual's employment

prospects. In this respect she submits that she trained as a nurse

at St. James's Hospital, Leeds, whilst in the male role. When she

subsequently applied for work with a Nursing Agency, the Agency

refused to register her for work because they were in possession of a

reference from one of her former employers which contained information

about the surgical and other treatment that she had undergone and the

fact that she had previously been employed as a male nurse. Although

her specific grievance on that occasion was settled without resort to

an Industrial Tribunal, it is her belief that, following the case of

White v. British Sugar Corporation Ltd. 1977 IRLR 121, there is no

provision in the law of the United Kingdom which would prevent similar

treatment of her in any application that she might make for further

employment. On this basis she allegedly has been and continues to be

handicapped in any effort that she makes to obtain different or better

employment.

2. Article 10

33. The applicant argues that it is a requirement of Article 10 to

give legal recognition to her sexual identity. In her opinion the

Court appears to have accepted in the Rees case that the United

Kingdom does recognise sexual identity for a variety of purposes, for

example, passports, driving licences and national insurance

certificates which are all issued in names that reflect the

applicant's sexual identity. But the applicant submits that these

documents are documents of description, not of legal identity. These

practices have nothing to do with transsexuality; any man could call

himself Paula James and require documentation to be issued in that

name, irrespective of the reason why. The fact that these documents

have no legal significance whenever the law asks the question 'what is

a person's legal identity?' is demonstrated by the fact that she has

been and continues to be handicapped in her employment prospects and

that the United Kingdom law concerning employment rights refuses to

recognise these documents as authoritative when presented with the

alternative of the birth certificate. This pattern is repeated in the

fields of welfare, pension retirement, tax, inheritance and family

rights. Article 10 requires the safeguarding of the freedom of

expression regardless of frontiers. The applicant submits that the

refusal of United Kingdom law to recognise her expression of her

sexual identity and the consequences that flow from that non-

recognition constitute a breach of Article 10 that cannot be

necessary in a democratic society or for any other reason contained

in Article 10 para. 2 of the Convention.

3. Article 14

34. The applicant submits that this provision is breached in the

following manner: Where Article 14 says "on any grounds such as sex"

this prohibits both discrimination on account of biological sex and

discrimination on account of gender. To go further, the applicant

submits that the anti-discrimination provisions of the Convention are

targeted more at the social construction of sexual differentation

than they are at mere biological differences. This is because gender

identity is the individual's psychological experience of being female

or male. Gender identity relies on the social construction of

femininity and masculinity as its base. It is societal stereo-typing

of the gender roles that, in large part, lies at the heart of sex

discrimination, rather than discrimination purely on biological

grounds. Where there are good reasons to discriminate on biological

grounds, for example, the provisions within United Kingdom Factory

Legislation, disallowing women from working in certain conditions on

account of their physical make-up, this is not considered to be

discriminatory at all. The aim of the provisions is to ensure

equality of social treatment rather than biological assimilation. The

legislation of the United Kingdom takes no account of discrimination

based on gender and hence breaches Article 14.

35. Article 14 prohibits discrimination on account of

transsexuality itself. This stems from the non-discrimination

provisions based on "any grounds such as sex" as outlined above, or

alternatively from the prohibition of discrimination based on "civil

status". The United Kingdom discriminates against transsexuals

in the following respects:

36. In the majority of cases a person's biological sex (that

is their chromosomal, gonadal, and apparent [external genitalia] sex)

corresponds to their psychological sex. Therefore, in relying

exclusively on biological criteria in the determination of their sex,

the United Kingdom respects their gender identity and civil

status as heterosexuals. However, as far as transsexuals are concerned

this is not the case since the phenomenon transsexualism arises from

the conflict between having the biological characteristics in the

legal determination of sex (rather than the social description of sex

- as described above). The United Kingdom violates the right of a

transsexual to fully express his/her psychological sexual identity.

37. In the great majority of cases where a person is born

a hermaphrodite or with ambiguous genitalia (intersexuality) an

operation will be carried out to remove certain parts of their

genitalia and hence to align them more closely with one or other sex.

In this event the United Kingdom makes provisions for post-operative

recording of their sex in their birth certificate. However, no such

provision is available to the transsexual who desires post-operative

alteration of the details in their birth certificate. This amounts to

discrimination on grounds of transsexualism, which is prohibited by

Article 14.

38. Irrespective of the breaches of Article 14 set out above,

the United Kingdom breaches the provisions of the Article in

that it discriminates against transsexuals on account of 'birth'.

Transsexualism can be defined as gender dysphoria. In the majority of

cases there is no physical cause of gender dysphoria apparent. While

the symptom of transsexualism is the major presenting feature of gender

dysphoria, like other symptoms in medical practice it may have a

number of underlying causes. Various theories of the causation of the

condition have been proposed, based upon biological, familial,

societal or psychological factors. The biological proposition is as

follows:

39. During foetal life the developing brain is subjected to

hormonal influences that may determine behaviour after birth and later

in life. Hormones produced by the foetal gonads and the maternal

gonads will circulate within the foetal blood vascular system.

Likewise hormones administered to the mother may reach the foetus.

It is postulated that alterations in the hormonal environment of the

developing brain may switch its development in a direction opposite to

that of the biological sex. Hence gender dysphoria arises.

40. Although the evidence of biological causes of gender dysphoria

is much more extensive in the field of non-primates, it is not ruled

out as a theory even by those who prefer the familial, societal or

psychological theories of causation. Its existence as a theory allows

that it is at least arguable that transsexuals are born with the

conflict that then becomes more apparent as they become more and more

conscious of their own sex and sexuality. If this is so, they are

born with a conflict and the United Kingdom, by relying exclusively on

the biological characteristics as the determinant of sex in any given

person, discriminates against them on account of their birth as

effectively persons of both sexes.

41. Referring to paragraphs 35 - 38 of the Court's judgment in the

Rees case, the applicant concludes that the nature of the breaches

alleged, especially the breaches of Article 14, necessitates a higher

degree of positive obligation than that accepted by the Court in the

Rees case, which was only dealing with the question of alteration of

the birth certificate itself and not the various inferences that arise

from its non-alteration.

B. The respondent Government

42. In the respondent's Government's opinion none of the points

made by the applicant distinguish her case from that of Rees.

43. Moreover, the respondent Government consider that the

applicant's further submissions raise issues falling outside the

Commission's decision on admissibility of 5 July 1985, according to

which the application only raises an issue under Article 8 of the

Convention.

44. Even if the facts of the present case could give rise to an

issue under Article 10, the respondent Government consider that it is

not open to the applicant to raise such an issue at this stage of the

proceedings.

IV. OPINION OF THE COMMISSION

A. Point at issue

45. The only point at issue in the present application is whether

the refusal to change the birth certificate with the effect that the

applicant's present status is not recognised for every legal purpose

amounts to a violation of her right to respect for her private life

as guaranteed by Article 8 (Art. 8) of the Convention.

46. The applicant also submits that her case discloses a separate

violation of Article 8 (Art. 8+14) read in conjunction with Article 14

of the Convention. In this respect the Commission found in the

decision on the admissibility of the application (p. 22 below) that no

separate issue arises under these provisions taken together.

47. The applicant now also invokes Article 10 (Art. 10) of the

Convention in relation to the facts submitted in the application.

However, her arguments in this respect are part of and another aspect

of her complaint under Article 8 (Art. 8) of the Convention. A

possible issue under Article 10 (Art. 10) is consequently absorbed by

the wider issue under Article 8 and need not be dealt with separately

(see, mutatis mutandis, Eur. Court H.R., Dudgeon judgment of 22

October 1981, Series 45, p. 26 para. 69).

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

48. 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."

49. As regards compliance with this provision 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 usally 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 occasioon 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 possibily, 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."

50. 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 the

extent to which it can meet the remaining demands of transsexuals"

(loc. cit., para. 47).

C. Conclusion

51. The Commission concludes, by eleven votes to three that there

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

present case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting Opinion of Mr. Ermacora

The Commission, in its report in the Rees case (Application

No. 9532/81), argued that there was, in its opinion, no justification

on any ground of public interest for the failure of the United Kingdom

to recognise the applicant as a man for all social purposes. The

refusal of the Government to amend or annotate the register of births

to record the individual's change of sexual identity would not in

fact be justified on any such ground. The Commission stated, inter

alia, that the medical recognition of the necessity to assist the

applicant 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.

Having regard to the reference in the preamble of the European

Convention to the Universal Declaration of Human Rights of 10 December 1948

which states that all human beings are born free and equal in dignity

and rights (Article 1) and that everyone has the right to recognition

everywhere as a person before the law, I have difficulty in following

the reasoning of the Court in their judgment in the Rees case. In

this case the Court relies mainly on considerations which seem to

disregard the human rights' substance of the case and of similar cases

of this nature. Therefore, I am not in agreement with the majority of

the Commission in merely quoting the judgment of the Court in the Rees

case. I still adhere to the Commission findings in the Rees case

which should also have been followed in the present case.

&_APPENDIX I&S

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

13 September 1983 Introduction of the application

19 September 1983 Registration of the application

Examination of Admissibility

9 May 1984 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

26 June 1984 Government's request to adjourn

consideration of the application,

pending the outcome of the Rees case

4 April 1985 Government renounces submission of

observations in view of the Commission's

Report in the Rees case

5 July 1985 Commission's decision to declare the

application admissible and adjourn its

examination pending the outcome of the

Rees case

Examination of the merits

7 October 1985 Decision on admissibility transmitted

to the parties

9 May 1987 Decision to invite the parties to

submit observations on the merits

16 June 1987 Government's observations on the merits

7 March 1988 Applicant's observations on the merits

20 April 1988 Government's reply

6 May 1988 Commission's consideration of the

state of proceedings

15 December 1988 Commission's deliberations on the

merits, final vote and adoption of

the Report

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JAMES v. the UNITED KINGDOM

JAMES v. the UNITED KINGDOM

LEXI