AS TO THE ADMISSIBILITY OF

                      Application No. 31177/96

                      by Theodor (Dora) ROETZHEIM

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 5 December 1995

by Theodor (Dora) ROETZHEIM against Germany and registered on

25 April 1996 under file No. 31177/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1956, is a German national and resident

in Mülheim.

A.   Particular circumstances of the case

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

I.   On 8 April 1994 the Mülheim District Court (Amtsgericht)

dismissed the applicant's request for rectification of his birth

certificate.  The Court found that the legal conditions under S. 8 of

the 1980 Transsexuals Act (Transsexuellengesetz) were not met.  In this

respect, the Court noted that the applicant was of male somatic sex and

that he was the father of a child.  Moreover, he had not undergone

surgical treatment and was still able to procreate.  The Court finally

rejected the applicant's argument that S. 8 of the Transsexuals Act was

objectionable from a constitutional point of view.

     On 14 November 1994 the Düsseldorf Regional Court (Landgericht)

dismissed the applicant's appeal (Beschwerde).  The Regional Court

confirmed the District Court's reasoning.  The Court further examined

the applicant's contention that surgical treatment was not necessary

and S. 8 of the Transsexuals Act unconstitutional.  The Court

considered that the legal requirement of a surgical treatment might

irritate the applicant, however, there was no violation of his right

to the free development of his personality under Article 2 of the Basic

Law (Grundgesetz).  A person's sex was, inter alia, determined by the

outward genital factors and the determination of sex under S. 8 of the

Transsexuals Act could, therefore, depend upon the requirement of

surgical treatment regarding the outward genital factors.

     On 26 April 1995 the Düsseldorf Court of Appeal (Oberlandes-

gericht) dismissed the applicant's further appeal.

     The Court of Appeal noted that the applicant, born in 1956, had

been married since 1985 and was the father of a child born in 1990.

Divorce proceedings were pending.  Since July 1992 the applicant has

adopted a female role.  While considering himself psychologically of

the female sex, the applicant refused any gender reassignment surgery.

The Court observed that the applicant himself did not deny that the

conditions under S. 8 of the Transsexuals Act were not met, taking into

account his marriage, his ability to procreate and the refusal of

surgical treatment regarding the outward genital factors.

     As regards his contention that the existing legislation was

unconstitutional, the Court of Appeal recalled that this legislation

had been introduced following a decision of the Federal Constitutional

Court (Bundesverfassungsgericht) of 1978 according to which the sex of

transsexuals should be rectified in birth certificates in, according

to medical science, irreversible cases and after gender reassignment

surgery.  The legal requirement of such surgical treatment could not,

therefore, be unconstitutional.  The existing legal and moral order as

well as social life were based on the principle that a person was

either of male or female sex.  Sex was not, therefore, freely at

disposal irrespective of the person's physical appearance, but was

determined by the existing psychological and physical factors.  The

Constitution did not require that, in defining sex and recording it in

public registries, the psychological tendencies of the person concerned

should be given priority over the existing physical factors.

     On 11 October 1995 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint (Verfassungs-

beschwerde).

     The Constitutional Court found that his submissions did not raise

any question of fundamental importance.  The legislator was not

required to treat a person, who, according to physical factors, still

belonged to the original sex and was still able to procreate as a

member of this sex, in every respect as a member of the other sex,

corresponding to their psychological situation, including even

permitting the person to enter into a marriage with another person of

the same biological sex. The Constitutional Court recalled that

marriage was the community of a man and a woman.  Finally, the

Constitutional Court observed that, in the context of the applicant's

case, it was not called upon to decide whether the legal possibilities

under S. 1 of the Transsexuals Act were sufficient to protect persons

who did not want to undergo gender reassignment surgery against a

disproportionate interference with their personality rights.

II.  On 17 July 1996 the Düsseldorf Court of Appeal, upon the appeal

of the applicant's divorced wife, amended the first instance judgment

of the Mülheim District Court of 29 November 1995 and ordered the

applicant to pay maintenance for his child born in 1990, namely monthly

payments of DEM 480 for the period between 1 January 1995 and

30 September 1996 and DEM 600 as from 1 October 1996.

     In its reasoning, the Court of Appeal found that, taking into

account the relevant provisions of the Civil Code (Bürgerliches

Gesetzbuch) and on the basis of a notarial agreement concluded in

1992, the applicant was obliged to pay maintenance to his child born

in wedlock.  There were no changes in the relevant circumstances

warranting a reduction of the sums which he had accepted to pay.

     The Court of Appeal considered in particular that the applicant's

argument that he had given up his previous profession and, as a

transsexual, had meanwhile been working as a cosmetician with a

considerably lower income, did not disclose any relevant change in the

circumstances.  In this respect, it recalled that for maintenance

purposes the financial ability of a person liable to pay maintenance

was determined not merely by his actual income, but also by his earning

capacity.  Thus a person liable to pay maintenance was under an

obligation to perceive a reasonable income, otherwise he was treated

as if he had in fact the income which he could earn with good will.

Giving up his original profession on account of his transsexual

tendencies could not reduce his maintenance obligations. In this

context, the Court considered that the applicant did not meet the

conditions under the Transsexuals Act, in particular since he had

remarried a woman in 1994 and was the father of a further child.  He

could therefore reasonably be expected to take up his former

profession, if need be in male clothing.

     On 25 September 1996 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint.

B.   Relevant domestic law

     The German Transsexuals Act (Gesetz über die Änderung der

Vornamen und die Feststellung der Geschlechtszugehörigkeit in

besonderen Fällen - Transsexuellengesetz) of 1980, as amended, provides

transsexuals with two solutions, namely the change of forenames without

gender reassignment surgery (SS. 1-7) and the amendment of public

registries following such surgical treatment (SS. 8-12).

     As to the conditions for the change of forenames, S. 1 para. 1

provides that the forenames of a person who, on account of a

transsexual state, no longer feels himself or herself to belong to the

sex recorded upon birth, but to the opposite sex and has been for three

years under constraint of living with these feelings, shall be changed

by the court, upon request of the person concerned, if, inter alia,

there is a high probability that the feeling of belonging to the other

sex will not change.

     As to the conditions for the change of civil status, S. 8 para. 1

provides that, upon request of a person who, on account of a

transsexual state, no longer feels himself or herself to belong to the

sex recorded upon birth, but to the opposite sex and has been for three

years under the constraint of living with these feelings, shall be

changed by the court, upon request of the person concerned, if the

conditions of S. 1 para. 1 are met and if the person concerned is

unmarried, is permanently unable to procreate and has undergone gender

reassignment surgery with the consequence that the outer appearance

resembles closely the phenotype of the opposite sex.

COMPLAINTS

     The applicant complains that the requirements under the German

Transsexuals Act for a change of the civil status of transsexuals,

namely the inability to procreate and gender reassignment surgery

amount to a violation of his right to respect for his private life

under Article 8 of the Convention.

     In his subsequent submissions, the applicant also submits that

the Düsseldorf Court of Appeal, in obliging him to seek employment even

in a male appearance, further violates his rights as a transsexual.

THE LAW

     The applicant complains that the refusal to recognise his female

sexual identity violates his right to respect for his private life, as

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

     This provision provides as follows:

     "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."

     The Commission recalls that the notion of "respect" enshrined in

Article 8 (Art. 8) is not clear-cut.  This is the case especially where

the positive obligations implicit in that concept are concerned, as in

the instant case (cf. Eur. Court HR, Rees v. the United Kingdom

judgment of 17 October 1986, Series A no. 106, p. 14, para. 35; Cossey

v. the United Kingdom judgment of 27 September 1990, Series A no. 184,

p. 15, para. 36; B. v. France judgment of 25 March 1992, Series A

no. 232-B, p. 47, para. 44), and its requirements will vary

considerably from case to case according to the practices followed and

the situations obtaining in the Contracting States.  In determining

whether or not such an obligation exists, regard must be had to the

fair balance that has to be struck between the general interest and the

interests of the individual (Eur. Court HR, Cossey judgment, loc. cit.,

p. 15, para. 37; B. v. France judgment, loc. cit.).

     The Commission further observes that transsexualism is not a new

condition, but that 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 (Eur. Court HR., Rees judgment, op.

cit., pp. 15-16, para. 38).

     In the above-mentioned cases, the Convention organs were faced

with complaints brought by post-operative transsexuals, while the

present case relates to a transsexual refusing gender reassignment

surgery.

     The Commission notes that German law offers two possibilities to

meet the demands of transsexuals, namely the change of forenames

pursuant to S. 1 of the Transsexuals Act and the rectification of the

sex recorded upon birth in accordance with S. 8 of the Transsexuals

Act.  The conditions are that the transsexual concerned has been living

with these feelings for three years and that there is a high

probability that the feeling of belonging to the other sex will not

change, and, additionally in case of a request for rectification, that

the transsexual concerned is unmarried, is permanently unable to

procreate and has undergone gender reassignment surgery.

     The Commission, having regard to the remaining uncertainty as to

the essential nature of transsexualism and the extremely complex legal

situations which result therefrom, finds that the respondent State has

in principle taken appropriate legal measures in this field.

     In the present case, the Mülheim District Court dismissed the

applicant's request for acknowledgment as a woman on account of his

refusal to undergo gender reassignment surgery and his continuing

ability to procreate as a man.  The Federal Constitutional Court, in

its decision of 11 October 1995, considered in particular that the

legislator was not required to treat persons, who, according to

physical factors, still belonged to the original sex and were still

able to procreate as member of this sex, in every respect as members

of the other sex, corresponding to their psychological situation.

     The Commission also notes that, following the dissolution of his

first marriage, the applicant married again in 1994 and had another

child.

     In these circumstances the Commission finds that the German court

decisions refusing the applicant's request for acknowledgment as being

of female sex, and rejecting legal arguments drawn from his

transsexualism, do not disclose any appearance of a breach of his

rights under Article 8 (Art. 8) of the Convention.

     It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber