DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

Article 8 (art. 8) is applicable in this case. On this point I share the opinion of the Court which is set out in the judgment.

As stated in paragraph 21 of the judgment, the 1990 Act provides that in the United Kingdom the male partner of a woman who gives birth to a child as a result of AID shall be treated for legal purposes as the father of the child. This rule was not applied in the present case because the partner of the mother is a female-to-male transsexual. Had X been born a man, he would have been registered as the father of the child Z.

The case at hand differs from the Cossey case and the Rees case, and for me it is an important difference that the State is not in this case requested to change entries in the register that were correct when they were made. Under United Kingdom law it is now possible for the register to contain statements that are not in conformity with biological facts but are based on legal considerations (see paragraph 21). For this reason I have not found it difficult to come to the conclusion that X had, under Article 8 of the Convention (art. 8), a right to be registered as the father of Z. This was not a ccepted in the United Kingdom . I am of the opinion that this showed lack of respect for the applicants ’ family life. This is, I find, just as true in respect of Z as of X and Y. In a country where it is laid down by legislation that the partner of a mother who gives birth to a child as a result of AID can be registered as the father, it is obviously accepted that the family ties between all concerned are of importance. I fail to see why this should be otherwise in the case before the Court, where the partner is a transsexual. Accordingly, I have come to the conclusion that there has been a violation of Article 8 (art. 8).

As already stated, X was not in the same position as other partners who had the righ t to be registered as fathers. This is in my opinion discrimination on the ground of sex. Accordingly, I find that there was a violation of Article 14 taken in conjunction with Article 8 (art. 14+8).

DISSENTING OPINION OF JUDGE FOIGHEL

1.  Article 8 (art. 8) expressly states that "Everyone has the right to respect for his private and family life ..." (emphasis added). In my view this includes transsexuals.

2.   As in the Cossey case, I find that a government ’ s failure to ensure that full legal recognition is given to a transsexual ’ s change of sex following successful gender reassignment surgery amounts to a violation of Article 8 of the Convention (art. 8).

3.   In our joint dissenting opinion in the Cossey case, Judges Palm, Pekkanen and I referred to the view expressed in earlier judgments that "the law appears to be in a transitional state" and that "[t]he need for appropriate legal measures should be kept under review having regard particularly to scientific and societal developments".

This important and relevant statement underlines the fact that, with regard to the status of transsexuals, legal solutions must necessarily follow medical, social and moral developments.

4.   While the present complaint differs in some aspects from the earlier cases involving transsexuals, it is a fact that X, like Cossey , Rees and many other individuals, is convinced that he does not truly belong to the sex the biological characteristics of which he had at birth. The central issue here is that the law should fully take account of his gender reassignment. This is not primarily a case concerning the welfare of a child; instead, it is about the respect to be afforded to a transsexual taking part in family life.

I cannot therefore accept the majority ’ s argument in paragraphs 47 and 51 that the recognition of X as father could be harmful to the child, especially since it is stated in paragraph 47 that it is "not clear" whether this recognition would be to the advantage of the child or wo uld instead be harmful to her.

5.   Paragraph 38 lists the most recent developments in the field of recognition of transsexuality . These changes underline the point made seven years ago in the above-mentioned joint dissenting opinion, that "[t]here is a growing awareness of the importance of each person ’ s own identity and of the need to tolerate and accept the differences be tween individual human beings. Furthermore, the right to privacy and the right to live, as far as possible, one ’ s own life undisturb ed are increasingly accepted." These developments are not reflecte d in the view of the majority.

6.   It is part of our common European heritage that governments are under a duty to take special care of individuals who are disadvantaged in any way. That the United Kingdom Government to a certain extent share this view is demonstrated by the fact that the State made it possible for X to undergo the surgery which brought his physiology into conformity with his psychology. Similarly, the authorities agreed to allow X and Y to have a child through AID. Furthermore, the couple could probably obtain a joint residence order in respect of the child which would further normalise their family life.

I am of course aware that in some countries and some circles there exist negative attitudes towards transsexuals, based on deeply roo ted moral and ethical notions. However, such attitudes seem slowly to be c hanging in European societies. As I have mentioned, the Government did not demonstrate such attitudes at the time of X ’ s operation or when X and Y were granted permis sion to undergo AID treatment.

7.   It is the Court ’ s task to balance the rights of the individual against the in terests of society as a whole. However, the Government have not adduced any convincing arguments with regard to these competing interests. Moreover, they have made no attempt to justify their failure to help X further by ensuring that his change of sex receives legal recognition, recognition which would benefit him and harm no one.

8.   I find Article 8 ( art. 8) violated in this case.

9.   The Human Fertility and Embryology Act 1990 provides that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section 28 (3) - see paragraph 21 of the judgment). According to the Births and Deaths Registration Act 1953, the child ’ s father (or the person regarded by law as the father) can have his name entered in the register if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987 - see paragraph 23 of the judgment). Had the present applicant been a biological man from birth, albeit not the biological father of the child, this rule would certainly have been applied. X, however, because he was a transsexual, was denied this right.

10.   Article 14 (art. 14) says "... without discrimination on any ground such as sex, race, colour ... birth or other status". These characteristics are all "nature-given". A transsexual is someone who has been born different from others, someone who has been born with a "defect". The English law puts transsexuals in a special category and discriminates against them.

This, I find, is a clear violation of Article 14 taken in conjunction with Article 8 (art. 14+8).