FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35968/97 by Carola VAN KÃœCK against Germany

The European Court of Human Rights (Fourth Section), sitting on 18 October 2001 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr G. Ress , Mr L. Caflisch , Mr I. Cabral Barreto , Mrs N. Vajić ,

Mr J. Hedigan , Mr M. Pellonpää , judges , and    Mr V. B erger , S ection Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 November 1995 and registered on 6 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Carola van Kück, is a German national , born in 1948 and living in Berlin.

The respondent Government are represented by Mr Stöhr, Ministerialdirigent .

Upon her birth, the applicant was registered as of male sex, with the forenames Bernhard Friedrich.

In 1990 the applicant instituted proceedings before the Schöneberg District Court, asking it to change the forenames to Carola Brenda.

On 20 December 1991 the District Court granted the applicant’s request. The court found that the conditions under section 1 of the Transsexuals Act ( Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen ) were met in the applicant’s case. In particular, having heard the applicant and having regard to the written opinions of the psychiatric experts Prof. R. and Dr O. of 28 August 1991 and of the psychological expert Prof. D., it considered that the applicant was a male to female transsexual and had been for at least the last three years under the constraint of living according to these tendencies. There was a high probability that the applicant would not change these tendencies in future.

In 1991 the applicant, respresented by counsel, brought an action with the Berlin Regional Court against a German health insurance company. Having been affiliated to this company since 1975, the applicant claimed reimbursement of pharmaceutical expenses for hormone treatment. The applicant further requested a declaratory judgment to the effect that the defendant company was liable to reimburse 50% of the expenses for gender reassignment operations and further hormone treatment.

On 20 October 1992 the Berlin Regional Court decided to take expert evidence on the questions of whether or not the applicant was a male to female transsexual; whether or not her kind of transsexualism was a disease; whether or not the gender reassignment operation was the necessary medical treatment for the transsexuality and whether or not this medical treatment was generally recognised in medical science.

The psychiatrist Dr H., having examined the applicant in January 1993, delivered his opinion in February 1993. He confirmed that the applicant was a male to female transsexual and that her transsexuality had to be regarded as a disease. He further indicated that the gender reassignment operation was not the only necessary medical treatment in case of transsexuality. In the applicant’s case, he recommended such an operation from a psychiatric-psychotherapeutic point of view, as it would further improve her social situation. He noted that the gender reassignment operation was not generally recognised in science and that there were several comments in litterature questioning whether the operation was the real effective factor; however, it could be assumed that the fact that transsexuals accepted themselves and their body contributed to their stabilisation. According to him, many transsexuals reached such stability only after an operation. In his view, this was the case for the applicant and an operation should therefore be approved. The expert concluded that the gender reassignment operation formed part of the medical treatment of a mental disease.

On 3 August 1993 the Regional Court, following an oral hearing, dismissed the applicant’s claims. The court considered that under the relevant provisions of the General Insurance Conditions ( Allgemeine Versicherungsbedingungen ), governing the contractual relations between the applicant and her private health insurance, the applicant was not entitled to reimbursement of medical treatment regarding her transsexualism.

In its reasoning, the court, having regard to the opinion prepared by Dr H. and to the expert opinions prepared in the proceedings before the Schöneberg District Court, considered that the applicant was a male to female transsexual and that her state had to be regarded as a disease. The question of whether the medical treatment was recognised in medical science was irrelevant.  In the court’s view, hormone treatment and gender reassignment operations could not reasonably be considered as necessary medical treatment. Having regard to the relevant case-law of the Federal Social Court, the court found that the applicant ought to have had first recourse to less severe means, namely an extensive psychotherapy of 50 to 100 sessions, such as proposed by the psychiatric expert Prof. D. and refused by the applicant after 2 sessions (NB: according to the Government, the original manuscript decision referred to 24 sessions). The court was not convinced that, on account of the applicant’s resistance to therapy, the intended operation was the only possible treatment.

Moreover, the Regional Court found that the evidence did not show conclusively that the gender reassignment measures would relief the applicant’s physical and mental grievances, a further criterion for assuming their medical neccessity. The expert Dr H. had merely recommended the operation from a psychiatric-psychotherapeutic point of view as it would improve the applicant’s social situation. His submissions, according to which the effect of the gender reassignment operation was often overrated, did not show that the gender reassignment measures were necessary for medical reasons. The court had not, therefore, been required, ex officio , to issue the expert with a summons to explain his opinion orally.

On 11 October 1993 the applicant lodged an appeal with the Berlin Court of Appeal. In the written appeal submissions, the applicant objected to the findings of the Regional Court to the extent that the necessity of gender reassignment measures was denied. The applicant also submitted that she had unsuccessfully attended psychotherapy sessions of between 24 and 35 sessions. In these respects, she referred to the written expert opinions and also mentioned the possibility to hear these experts.

In the course of these appeal proceedings, the applicant underwent the gender reassignment operations.

On 27 January 1995 the Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional Court’s findings that the expert Dr H. had not confirmed the necessity of gender reassignment measures. The applicant had therefore failed to prove that the conditions for reimbursement of medical treatment were met in her case.

The Court of Appeal further considered that, in any event, she was not entitled to reimbursement under section 5.1(b) of the Insurance Conditions on the ground that she had herself deliberately caused the disease.

Referring to the details of her anamnesis as contained in the expert opinion of Dr O. of August 1991, the Court of Appeal found in particular that the applicant had been born as male child and did not claim that she was female on account of chromosomal factors.  Initially, she had not adopted female behaviour. On account of her male orientation, she had been able to resist to feelings that she would have preferred to be a girl and that this would have been more correct, and had controlled her emotional life at an early stage.

The Court of Appeal considered that  the applicant had continued to live as a man. In its view, the applicant’s ‘fear of bigger boys’ at school was not gender-specific. Furthermore, applying with the armed forces did not advocate female feelings, and she had left the armed forces not because of the feeling that she was a ‘woman’, but because she had experienced degrading treatment. In 1971, the applicant had met her later spouse, likewise a sign of her male orientation. The spouses had wished to have a child.

According to the Court of Appeal, the ‘turning point’, as stated by the applicant, had been the moment when, after an unsuccessful operation in 1986, she had realised that she was infertile. The Court of Appeal quoted the following passage from the expert opinion of 1991:

“The recognition that he was infertile is a decisive factor confirming the subsequent transsexual development.”

It continued in the following terms:

“Fully aware of this position, the plaintiff concluded for herself: “If you cannot have children, you are not a man”, and as a consequence she went one step further and wanted to be a woman from then on. She had never otherwise felt that she was, or that she had to become, a woman, but was merely making a statement that she could do without a penis and still have satisfying relations with his [sic] wife (...) Doing without the one is not the same as an irresistible desire for the other. In furtherance of the self-imposed goal of wishing to be a woman, from December 1986 she took - without medical advice, assistance or instruction - female hormones (...).

That was deliberate. Having recognised - no doubt painfully - that she could not have children, she decided to distance herself from her past as a man ...  It was this deliberate act of self-medication that led the plaintiff ever more to her decision that she wanted to be a woman and to look like one, although it was biologically impossible. This was based on her limited preparedness or ability to reflect critically (...) but was faultily deliberate because the plaintiff was at all events at that stage in a position to see what the consequences of her "self-medication" would be, and to act accordingly.

...”

On 25 October 1996 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.

COMPLAINTS

The applicant complains about the German court decisions refusing her claims for reimbursement of gender reassignment measures and also of the proceedings concerned.

She submits that the courts did not duly consider the context of the proceedings for changing her forenames and that references to the respective expert opinions were partly wrong. In particular, the Court of Appeal arbitrarily reasoned that she had herself deliberately caused her transsexuality, ignoring her requests to hear the psychiatric experts involved in these and the previous court proceedings.

Moreover, the Court of Appeal had referred to personal details of her curriculum vitae, as stated in the files concerning the proceedings to change her forenames, without considering them in their proper context.

The applicant also considers that the Court of Appeal had discriminated against her as a male to female transsexual, when arguing that having recognised that she could not have children, she decided to become a woman.

She invokes Articles 6 § 1, 8, 13 and 14 of the Convention.

THE LAW

1. The applicant complains about the alleged unfairness of German court proceedings concerning her claims for reimbursement of medical expenses against a private health insurance company. She invokes Article 6 § 1 of the Convention, which, as far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government contend that the proceedings as a whole were fair. In their view, the applicant had the possibility to put forward all relevant arguments and to adduce evidence.

They submit that the Berlin Regional Court took evidence on the question whether the operation in question was a necessary medical treatment and took the conclusions of the expert Dr H. duly into account. Likewise, the Court of Appeal fully considered the medical expert opinion and, at an oral hearing, it gave the applicant a further opportunity to comment on the matter. The German courts’ interpretation of the insurance contract between the applicant and the health insurance company, in particular of the necessity of medical treatment could not be objected to under the Convention. The burden of proof had been on the applicant as the insured person. The expert had not unequivocally affirmed the medical necessity of an operation, but had recommended the operation from a psychiatric-psychotherapeutic point of view. The Court of Appeal had concluded therefrom that the operation was not necessary as a medical treatment, even though the applicant’s social situation could be improved. The courts further had regard to the proceedings concerning the change of the applicant’s forenames.

Furthermore, as the written expert opinion was conclusive, the Regional Court and the Court of Appeal had not been obliged to summon the expert.

Moreover, the Court of Appeal, taking into account the defendant’s submissions, had to take evidence on the question of whether the applicant had herself deliberately caused the disease. The court assessed this matter on the basis of an expertise, prepared by Dr O. in the context of the proceedings before the Schöneberg District Court concerning the change of forenames. In the first instance proceedings, the applicant had agreed that these files be consulted.

According to the Government, this expert opinion contained sufficient elements concerning inter alia her early youth, her military service and her marriage to support the conclusion that the applicant had herself deliberately caused her transsexuality . In this respect, the Court of Appeal had correctly noted that the applicant had started hormone medication without prior consultation with a medical practitioner.

The applicant objects to the Government’s submissions. She maintains that German courts arbitrarily interpreted the notion of “necessary medical treatment” in a narrow sense. In her view, the expert had recommended her operation without hesitation. However, in particular the Court of Appeal transposed general views on transsexualism on the medical opinion of Dr H. and required the operation to be the only possible treatment.

She also considers that the Court of Appeal should not have drawn conclusions from a written expert opinion prepared in the context of a previous set of court proceedings without hearing the expert Dr O.  She only agreed to the consultation of these files in order to avoid repeated taking of evidence on her sexual orientation. The experts had never situated the biographical information concerned in the context of the question whether she had herself deliberately caused her transsexuality . Moreover, in her expert opinion, Dr O. had only stated that the applicant’s infertility had contributed to the development. The Court of Appeal’s conclusion, without medical expertise, that her hormone treatment brought about her transsexuality was arbitrary.

2. The applicant also invokes Article 14 of the Convention in conjunction with Article 6 in relation to the above German court decisions. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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 the German courts did not discriminate against the applicant on account of her transsexuality . Any person claiming that the costs of surgical operations be borne by a health insurance company must have a valid claim and, in case of dispute, adduce relevant evidence. In respect of medical treatment of transsexuals, evidence had to be furnished for the sexual orientation and the reasons thereof. Determining whether or not a disease had been deliberately caused applied to all insured persons. For a transsexual, hormone treatment was relevant circumstantial evidence. The Court of Appeal’s evaluation and assessment of evidence did not disclose any discrimination.

In the applicant’s submission, the findings of the Court of Appeal are arbitrary and infringe her personal integrity. In this respect, she notes that her sexual orientation had been established in the context of the proceedings before the Schöneberg District Court.

3. The applicant further considers that the impugned court decisions violate her right to respect for her private life. She invokes Article 8 of the Convention which, as far as relevant, reads:

“1. Everyone has the right to respect for his private ... life ...

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 Government contend that the Court of Appeal duly considered an expert opinion prepared in the context of preceding court proceedings. They repeat that the applicant had agreed to the consultation of these files. The Court of Appeal had highlighted some elements in the said expert opinion in order to show that the applicant had herself deliberately caused her transsexuality . It did not criticise the applicant’s sexual orientation nor had it regarded this orientation as reprehensible or inadmissible. Rather, the fact that the Court of Appeal referred to the circumstance that the applicant was meanwhile living as a woman showed that it had accepted and respected her sexual identity. The Court of Appeal was, however, obliged to consider the applicant’s personal development in deciding whether her claim against the insurance company was valid.

The applicant considers that the Court of Appeal did not respect her sexual identity when projecting an image of her personality which was based on misconstrued facts. When looking at her male past, the Court of Appeal regarded various episodes as disclosing a male orientation without considering the efforts to repress the feeling of a different identity. It thereby disregarded the development of her personality and sexual identity.

4. The applicant also alleged, for the reasons already put forward in connection with the alleged violation of Article 8 taken in conjunction with Article 14 of the Convention, that she was discriminated as transsexual in the exercise of her right to respect of her private life.

According to the Government, it is common ground that in order to prove the validity of specific claims, medical data and intimate details had to be disclosed. In this respect, there was no discrimination between transsexuals and other insured persons.

The applicant considers that the Court of Appeal’s approach to find, on the basis of the file and without taking evidence, that she had herself deliberately caused her disease, clearly shows discrimination between transsexuals and other patients.

5. The Court has examined the applicant’s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Antonio Pastor Ridruejo Registrar President