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AS TO THE ADMISSIBILITY OF

Application No. 23390/94

by Rachel HORSHAM

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 25 August 1993 by

Rachel HORSHAM against the United Kingdom and registered on 7 February

1994 under file No. 23390/94;

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 17 February 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 and Dutch citizen born in 1946 in the

United Kingdom and resident in Amsterdam. The facts as submitted by the

parties may be summarised as follows.

A. Particular circumstances of the case

The applicant was recorded at birth as being of the male sex.

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

underwent psychotherapy and hormonal treatment and finally underwent

gender re-assignment surgery on 26 June 1992.

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

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

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

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

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

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

be issued.

The applicant requested that her original birth certificate in

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

dated 20 November 1992, the OPCS (Office of Population Censuses and

Surveys) confirmed that there was no provision under United Kingdom law

for any new information to be inscribed on her original birth

certificate.

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 legal 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.

Rape

Prior to 1994, for the purposes of the law of rape, a male-to-

female transsexual would have been regarded as a man.

Pursuant to section 142 of the Criminal Justice and Public Order

Act 1994, rape is now defined as "vaginal or anal intercourse with a

person".

Imprisonment

Prison rules require male and female prisoners to be detained

separately.

The Government submit that in some cases post-operative

transsexuals have been placed in a prison catering for the sex which

accords with their new social status. Consideration is given to the

circumstances of each individual case of a transsexual sent to prison

as to what is appropriate.

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 of the refusal of the United Kingdom to

permit alteration of her original birth certificate to record her sex

as female. She submits that this is in violation of her right to

respect for her private life, contrary to Article 8 of the Convention.

She submits that the legal position of transsexuals in the United

Kingdom was deliberately altered to their detriment in the Corbett v.

Corbett case and the true position misrepresented to the European Court

of Human Rights. She also complains that the United Kingdom fails to

recognise the marriages of transsexuals in violation of Article 12 of

the Convention. At the time of her application, the applicant referred

to her coming marriage with a Dutch male national.

The applicant complains that the United Kingdom fail to recognise

her rights as a woman. She alleges that a transsexual can be legally

raped, that the status of transsexuals at government employment

agencies, social security departments and retirement pension schemes

remain as originally recorded at birth (the retirement age of 60

applicable to women does not apply to a male-to-female transsexual who

will be governed by the male limit of 65) and that a transsexual on

imprisonment would be held in a prison catering for persons of his or

her original birth sex. A transsexual has no right, she submits, to

conceal her original sex which must be declared when, for example,

entering into an endowment insurance policy or joining a pension

scheme.

The applicant complains of discrimination contrary to Article 14

of the Convention in that the United Kingdom refuse to recognise her

rights as a woman.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 August 1993 and registered

on 7 February 1994.

On 30 August 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 one extension of the time-limit fixed for that

purpose. The applicant replied on 17 February 1995.

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 and

discrimination, such hearing to be joined for that purpose to

Application No. 22985/93. 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 respondent State refuses to

recognise her status as a woman. She makes a number of complaints in

this context and invokes Articles 8, 12 and 14 (Art. 8, 12, 14) 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."

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 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 complains 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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HORSHAM v. THE UNITED KINGDOM

HORSHAM v. THE UNITED KINGDOM