PARTIALLY DISSENTING OPINION OF MR. L. LOUCAIDES

      I do not share the view of the majority that, since the

Commission found that the lack of legal recognition of applicant's

gender reassignment discloses a lack of respect for her private life,

it was unnecessary to examine separately the applicant's complaint

under Article 12 of the Convention.

      It is true that the lack of recognition of the applicant's gender

reassignment is a legal impediment to the exercise of the applicant's

right to marry.  However in the case of transsexuals the right to marry

does not entirely depend on the legal recognition of an individual's

gender.  The gender reassignment of a person like the applicant may be

legally recognised under the national laws of a State and yet she may

not be able to exercise the right to marry under the same laws insofar

as they may adopt biological criteria for determining a person's sex

for the purpose of marriage.  In fact this is the position in the

United Kingdom.

      In this respect it should be recalled that in the Rees and Cossey

cases (loc. cit) the Court held that there was no violation of Article

12 in relation to the complaints of the applicants, transsexuals, that

they were unable to marry a person of the sex opposite to their gender

reassignment.  The Court (Cossey paras. 44-46) stated that the criteria

adopted by English law were in conformity with the concept of marriage

to which Article 12 refers.

      Notwithstanding the conclusion, which I also personally adopt,

that there has been a failure to respect the applicant's private life,

I find no ground justifying departure from the above case-law.  The

finding of a violation under Article 8 was based on the real and

continuing risk of embarrassment or intrusion in private life against

which there were no countervailing public concerns.  Article 12

expressly provides that the exercise of the right to marry shall be

subject to the national laws of the Contracting States.  There are no

intervening developments which would constitute sufficient ground to

differ from the Court's view that national law may regulate marriage

as being between men and women defined by biological criteria.  The

research into the phenomenon of transsexualism is far from establishing

any decisive or conclusive findings as to any new biologically-based

definition of sexual identity.

      It may be useful to stress here that "private life" and

"marriage" are two different concepts, the scope and protection of

which are governed by different factors and considerations.  The right

to respect for private life does not automatically coincide with the

right to marry.  The right to marry also has consequences for the other

party to the marriage whose legitimate interests the law may be

expected to protect.  A transsexual may have a right to have his gender

reassignment legally recognised as part of his private life but when

it comes to his right to marry the biologically-based definition of his

sexual identity may have to be maintained.  This not only because it

is in accordance with the concept of marriage in the context of Article

12 of the Convention but also in order to protect the legitimate

expectations of the other party to the marriage to know the gender

status of his partner on the basis of biological criteria. This status

is interwoven with the sexual life of the couple and their capacity to

have children which are significant elements in a relationship of

marriage.

      In the light of the above, I find that there has been no

violation of Article 12 in this case.