DISSENTING OPINION OF JUDGE VALTICOS, JOINED BY JUDGE LOIZOU

(Translation)

It is naturally with great regret that I have to differ from the above judgment, which in other circumstances might no doubt have been justified or even inevitable, and some of whose consequences are certainly reasonable (as will be stated below), but which does not seem to me to be acceptable on the facts of the case.

By overturning a line of case-law whose most recent decision was scarcely a year old - even though the facts, albeit different to a certain extent, were not in my opinion different enough to justify this change of direction - I fear that the majority of the Court could be opening the way to serious and as yet unforeseeable consequences.

This does not mean that in suitable circumstances the situation of a transsexual should not be dealt with by a change of civil status, or at least by measures intended to make his or her social situation less difficult.

However, there are, as we know, numerous types of transsexual. Thus there is considerable variation from one case to another in the psychological or physiological factor and the natural or acquired character (acquired to a greater or lesser extent as a result of surgical operations, themselves very diverse as to motivation and scope). The problem is moreover currently the subject of thorough scientific research, and any decision will depend to a large degree on the circumstances of the case.

Why does it seem to me that in this case the facts of the case do not justify the decision which has been taken?

Because in reality, while the applicant, who professes to be a woman, asks for the alleged change of sex to be legally recognised, the situation here is one where the change in question is in reality incomplete, artificial and voluntary.

To begin with, what does the term "change of sex" mean in this type of case? In the first place, one cannot restrict oneself to psychological factors alone, nor social ones alone, as is apparently sometimes thought. If that were so, there would be no real criteria or boundaries and there would be a risk of arbitrariness. Stability of social life would certainly be compromised thereby.

It is therefore also necessary, as an essential condition, for the original real state or the change of state which has occurred, to be sufficiently marked and not in doubt from the physiological point of view. One cannot accept dubious hermaphrodites and ambiguous situations.

In the present case we are faced with a voluntary action by the applicant, who, wishing to change sex (for he was originally of male sex, at least in essence, and had performed his military service), underwent an operation in conditions which appear dubious and afforded no guarantee, following which he found himself in a position where he was no longer completely a man, nor indeed truly a woman, but to a certain extent had some of the characteristics of both sexes.

We thus encounter two additional difficulties in this case: firstly the voluntary character and secondly the incompleteness of the change. And is there not thus a risk of encouraging such acts (and here it was even an operation performed without any supervision), and what is more, of seeing as a consequence half- feminised men claiming the right to marry normally constituted men, and then where would the line have to be drawn?

No doubt there is an evolution taking place in people ’ s minds and in science; no doubt several European countries do allow applications of this type; but it seems to me that as matters stand it is clearly inappropriate to consider that there has been a violation of the Convention where for legal, moral and scientific reasons, reasons which all deserve respect, a State does not follow, or at least is not yet ready to follow such an evolution. The countries of Europe as a whole do not appear to be ready to have such case-law imposed on them.

Having said this, it none the less remains the case that the social situation of these persons whose sex has become indeterminate presents them with problems of various types and causes them serious embarrassment in daily life. Efforts should be made to remedy this. Independently therefore of any formal legal measure aimed at amending their civil status, it would be desirable for the States concerned to endeavour to reduce such inconveniences; there come to mind inter alia measures aimed at authorising changes of forename (going beyond the adoption of so- called neutral forenames only, a practice which would also have the disadvantage of more generally making such names "suspicious") and amending the information on identity documents, which by their detail or the code used reveal the sex of the person concerned. Without ignoring the practical difficulties which such a change might cause, it would deserve serious consideration.