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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

4 September 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

P. LORENZEN

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;

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 also that at the same time she was coerced by underhand

methods into divorcing and giving up her daughter eight years before.

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 in the

United Kingdom and were used by transsexuals until the State wilfully

used dicta from the case CORBETT v. CORBETT (1971 Probate R. 83) to

alter its administrative practice and to accept only biological

criteria in determining legal sex. The applicant submits that the

United Kingdom misled the Court in the REES and COSSEY cases as to the

state and development of the law (Eur. Court H.R., Rees judgment of

17 October 1986, Series A No. 106 and Cossey judgment of

27 September 1990, Series A No. 184) and that it continues to rely on

outdated biological criteria 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.

THE LAW

1. 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 Commission has had regard to the observations submitted by

the parties. It considers that these complaints raise issues of law and

fact under the Convention, which require further examination. The

Commission therefore decides to invite the parties to submit further

observations orally at a hearing on admissibility and merits pursuant

to Article 50 (b) (Art. 50-b) of the Convention and accordingly to

adjourn this part of the application.

2. The applicant also complains of being coerced by underhand

methods into divorcing and being prevented from having contact with her

daughter.

The Commission notes that the divorce and decision regarding

contact took place in or about 1987. Assuming that the applicant has

exhausted the domestic remedies available to her in respect of these

matters, the Commission finds that the decisions of which she complains

took place more than six months before the introduction of her

complaints to the Commission on 4 August 1993. She has therefore failed

to comply with the six month time-limit imposed by Article 26 (Art. 26)

of the Convention. Furthermore, an examination of the case does not

disclose the existence of any special circumstances which might have

interrupted or suspended the running of that period. It follows that

this aspect of the case has been introduced out of time and must be

rejected pursuant to Article 27 para. 3 (Art. 27-3).

For these reasons, the Commission,

by a majority,

DECIDES TO ADJOURN the examination of 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;

unanimously,

DECLARES INADMISSIBLE 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