Lexploria

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

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 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 ;

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.

The applicant further complains of the initial refusal of the

United Kingdom to change her passport. She alleges this caused her

severe mental stress contrary to Article 3 of the Convention.

Finally, the applicant complains that as a result of the above

violations she had effectively been expelled from the country and has

to live elsewhere, namely, in the Netherlands. She invokes Article 3

of Protocol No. 4 to the Convention.

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.

THE LAW

1. 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 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 invokes Article 3 (Art. 3) of the Convention

in respect of the initial refusal of the United Kingdom Consulate to

change her passport to record her gender re-assignment.

However, pursuant to Article 26 (Art. 26) of the Convention, the

Commission may only deal with a complaint which has been introduced

"within a period of six months from the date on which the final

decision was taken". Where a complaint relates to a situation against

which no remedy is available, the six month period is calculated as

running from the end of the situation (see eg. No. 11123/84, Dec.

9.12.87, D.R. 54 p. 52). The Commission notes that a passport was in

fact issued on 11 September 1992 whereas the applicant's complaints

were introduced on 25 August 1993, more than six months later.

The Commission finds no special circumstances arising which might

interrupt of suspend the running of that period.

It follows that this complaint has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

3. The applicant, lastly, invokes Article 3 of Protocol No. 4

(P4-3) to the Convention in respect of alleged constructive expulsion

from the United Kingdom.

Since however the United Kingdom is not a party to this protocol,

the Commission must reject this complaint as incompatible ratione

personae with the provisions of the Convention within the meaning of

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

For these reasons, the Commission

by a majority,

DECIDES TO ADJOURN the applicant's complaints relating to the

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

discrimination;

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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HORSHAM v. THE UNITED KINGDOM

HORSHAM v. THE UNITED KINGDOM

LEXI