Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22985/93

by Kristina SHEFFIELD

against the United Kingdom

The European Commission of Human Rights sitting in private on

19 January 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 August 1993 by

Kristina SHEFFIELD against the United Kingdom and registered on

22 November 1993 under file No. 22985/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 December 1994 and the observations in reply submitted by the

applicant on 24 April 1995;

- the material submitted by the Government on 8 December 1995 and

by the applicant on 15 January 1996;

- the observations submitted by the parties at the oral hearing

held on 19 January 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

London. She is represented before the Commission by Henri Brandman &

Co., solicitors practising in London. The facts as submitted by the

parties may be summarised as follows.

A. Particular circumstances of the case

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

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

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

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

on her passport and driving licence. Her birth certificate continues

to record her original name and gender.

The applicant was divorced from her spouse at or around that

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

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

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

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

judge granted the application on the basis that contact with a

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

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

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

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

required to disclose to the court her previous name.

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

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

pistol was a replica. Following comments of police officers indicating

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

operation, the applicant sought to discover whether these personal

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

official request for information made under the data protection

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

pursue the enquiry.

On 20 December 1992, the applicant entered into an insurance

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

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

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

to give her sex as male.

B. Relevant domestic law and practice

Names

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

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

purposes of identification and may be used in passports, driving

licences, medical and insurance cards etc.

Marriage

Pursuant to United Kingdom law, marriage is defined as the

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

determined by biological criteria (chromosomal, gonadal and genital,

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

P 83.

Birth certificates

Registration of births is governed by the Births and Deaths

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

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

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

time of birth. A birth certificate accordingly constitutes a document

revealing not current identity but historical facts.

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

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

the biological criteria (chromosomal, gonadal and genital).

The 1953 Act provides for the correction by the Registrar of

clerical errors or factual errors, but an amendment may only be made

if the error occurred when the birth was registered. The fact that it

may become evident later in a person's life that his or her

"psychological" sex is in conflict with the biological criteria is not

considered to imply that the initial entry at birth was a factual

error. Only in cases where the apparent and genital sex of a child was

wrongly identified or where the biological criteria were not congruent

can a change in the initial entry be made and it is necessary for that

purpose to adduce medical evidence that the initial entry was

incorrect.

Social security, employment and pensions

A transsexual continues to be recorded for social security,

national insurance and employment purposes as being of the sex recorded

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

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

the age of 60 which is applicable to women.

COMPLAINTS

The applicant complains that the State refuses to recognise her

as a woman and requires her to declare herself to be a man when, for

example, entering into contracts or appearing in a court of law. She

complains that these matters disclose a lack of respect for her private

and family life contrary to Article 8 of the Convention.

The applicant complains of being unable to change her birth

certificate. She submits that procedures to do this existed for

transsexuals in the United Kingdom until dicta from the case CORBETT

v. CORBETT (1971 Probate R. 83) were used to alter its administrative

practice and to accept only biological criteria in determining legal

sex, which continues to be the case in disregard of current medical and

scientific findings concerning the transsexualism.

The applicant complains that as a transsexual she is prohibited

from marrying a man contrary to Article 12 of the Convention.

The applicant further complains that she is open to

discrimination both at work and in public as a transsexual. She states

that she is under a constant threat of abuse and physical violence and

that there is no protection in law for transsexuals against

discrimination. She invokes Article 14 of the Convention in this

respect.

The applicant submits in addition that she has no effective

remedy for her complaints as required by Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 August 1993 and registered

on 22 November 1993.

On 4 July 1994, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 16

December 1994 after two extensions of the time-limit fixed for that

purpose. The applicant replied on 24 April 1995, also after an

extension of the time-limit.

On 20 January 1995, the Commission granted the applicant legal

aid.

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

to an oral hearing concerning the applicant's complaints relating to

the lack of respect for her private life, inability to marry,

discrimination and failure to provide an effective remedy, such hearing

to be joined for that purpose to Application No. 23390/94. The

Commission declared inadmissible the remainder of the applicant's

complaints.

The Government submitted documents on 8 December 1995 and the

applicant further material on 15 January 1996.

At the hearing, which was held on 19 January 1996, the parties

were represented as follows.

For the Government

Ms. Dickson Agent, Foreign and Commonwealth Office

Mr. Pannick, Q.C. counsel

Mr. Singh counsel

Ms. Jenn adviser, Department of Health

Mr. Jenkins adviser, Office of Population, Censuses and

Surveys

For the applicants

Mr. Duffy counsel

Mr. McFarlane counsel

Mr. Heim counsel

Mr. Brandman solicitor

Professor Gooren adviser

Both applicants attended.

THE LAW

The applicant complains that the State refuses to recognise her

status as a woman contrary to her right to respect for private life,

that as a male-to-female transsexual, she is unable to marry a man

under United Kingdom law, that she suffers discrimination and that she

has no effective remedy for these complaints.

She invokes the following provisions of the Convention.

Article 8 (Art. 8) of the Convention

"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."

Article 12 (Art. 12) of the Convention

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

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

exercise of this right."

Article 14 (Art. 14) of the Convention

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

Convention shall be secured without discrimination on any ground

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

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 13 (Art. 13) of the Convention

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

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

a Contracting State to recognise for legal purposes the new sexual

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

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

in this area where difficult medical and moral questions arise on which

there is not yet any international consensus (see Eur. Court H.R. Rees

judgment of 17 October 1986 Series A no. 106; Cossey judgment of 27

September 1990, Series A no. 184 and B. v. France judgment of 25 March

1992 Series A no. 232-C). The Government submit that the applicant has

not established a degree of practical detriment which would amount to

a denial of her right to respect for her private life. Under Article

12 (Art. 12) of the Convention, there is no interference, since the

Court and Commission have recognised that marriage may legitimately be

restricted under national laws to union between a man and woman of

biological origin.

As regards the alleged discrimination, the Government consider

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

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

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

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

a mistake made at the time of registration.

The applicant complains that the failure of the United Kingdom

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

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

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

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

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

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

employment context, a transsexual continues to be regarded as being of

the sex recorded at birth. The allocation of sex in United Kingdom law

and practice by reference to biological indicators existing at the time

of birth is not justified socially, medically or scientifically.

Accordingly the applicant submits that she is subject to serious,

distressing and unnecessary interferences. The applicant complain also

of a violation of her right to marry under Article 12 (Art. 12), since

her change of gender is not taken into account and having been recorded

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

male sex is prohibited. Under Article 14 (Art. 14) of the Convention,

the applicant complains that she is subject to discrimination as

regards the inconsistency in practice of rectification of birth

certificates as carried out by the United Kingdom authorities. The

applicant submits that legal, societal and scientific developments mean

that the previous case-law of the Court requires re-examination. She

refers in particular to new scientific research into the brain

structure of transsexual persons.

The Commission has had regard to the observations submitted by

the parties. It considers that these complaints raise serious and

complex issues of law and fact under the Convention, the determination

of which should depend upon an examination on the merits. The

Commission therefore concludes that the remainder of the application

is not manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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SHEFFIELD v. THE UNITED KINGDOM

SHEFFIELD v. THE UNITED KINGDOM

LEXI