PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

      As to Article 8

      The complaint declared admissible is that the lack of legal

recognition of the applicant's gender reassignment discloses a lack of

respect for her private life.  The majority of the Commission has

acknowledged the difficulties in "assimilating" the phenomenon of

transsexualism readily into existing legal frameworks but found that

the failure to so assimilate the phenomenon constitutes a failure to

respect the applicant's private life (paras. 53 and 54 of the Report).

      The applicant goes rather further.  She wishes to be protected

against any obligation to reveal her former name or birth gender when

asked a direct question by public authorities within certain contexts

(court appearances or for the purpose of confidential social security

records) or by private bodies within certain contractual situations

(insurance or employment contracts).

      As the law stands the applicant is not required in her daily life

to carry an identity card revealing her birth gender and there has been

no legal or practical barrier to her changing her name.  Her passport

and driving licence do not reveal her past identity.  The situation is

therefore clearly distinguishable from that in B. v. France (Judgment

of 25 March 1992, Series A. No. 232-C).  It is closer to that

prevailing in the Rees and Cossey Cases (Judgments of 17 October 1986

and 27 September 1990 respectively, Series A. Nos. 106 and 184).  At

paragraph 52 and a relevant footnote to the Report the Commission

refers to changes in the law in about twelve countries to assimilate

the phenomenon of transsexuality.  It is not clear whether these are

countries where identity cards are in daily use or whether any of the

laws would protect the applicant against revealing information about

her past in response to a direct question from a body with a legitimate

interest in tracing past records.  Certainly the Private Members' Bill

presented to the House of Commons by Mr. Alex Carlisle and intended to

provide for  the registration and civil status of transsexuals does not

attempt to deal with these difficult questions.

      The law has in fact developed since the case of B. v. France as

a result of the law of the European Union to give, in the majority's

words (with which I agree) "authoritative recognition of the right of

transsexuals to respect for their dignity and freedom on a footing of

equality with non-transsexuals" in the field of employment (para. 52

of the Report).  The precise ramifications of the European Court of

Justice judgment have yet to be established and in particular its

impact, if any, on any existing European Union law savers for different

treatment of the sexes in areas of employment calling for a

particularly intimate relationship between the employee and a member

of the public and designed to respect the sensitivities of particular

members of the public, such as the relationship between nurse and

patient.  Its significance for Convention law is arguable, as the

Convention does not govern employment matters generally although it may

create positive obligations to protect against harassment

(Whiteside v. UK DR. 76A, 80).

      The Commission has noted at para. 53 of the Report that

scientific and medical developments since the Rees and Cossey Cases are

neither conclusive nor exhaustive.

      While one sympathises with the applicant's wish not to be asked

questions about her past history, it seems that this concern would not

be answered by the consequential remedy: the introduction in the

Respondent State of a short-form birth certificate omitting mention of

sex or of some kind of official documentation of current social gender

which would be sufficiently widely used not to be associated with

transsexuals (notwithstanding that the introduction of documentation

of the latter type would run counter to that and other States' popular

and long-standing concept of civil liberties and their non-reliance on

any identity card system). It appears to me that she has not shown that

her private daily life has been so affected in concrete terms as to

mean that there is an obligation under Article 8 for the State to take

positive measures to further assist her in concealing her past.  In the

case of B. v. France, in which I had the honour of presenting the

Commission's Report to the Court, there was (in the form of inter alios

an identity card and invoices and cheques indicating that applicant's

former name and masculine form of address) clear evidence of painful

embarrassment and the risk of being compelled to disclose personal

medical history merely in the course of routine and economic daily

life.  I consider that the present case is clearly distinguishable and

much more abstract in nature.

      As to Article 12

      For the reasons given by the Court in the Cossey case I consider

that there has been no violation.

                                                        (Or. English)