DISSENTING OPINION OF JUDGE MORENILLA

(Translation)

I regret that I am unable to agree with the conclusion of the majority, who found there had in the present case been a violation by France of the applicant ’ s right to respect for her private life, by reason of the dismissal by the French courts of the proceedings brought before them by Miss B. As I will show below, my reasons are primarily of a legal nature, as they are based on the subsidiary character of the protection of the rights of the individual in the system established by the Convention - this being required by the analysis before our Court of the disputed "act or omission" of the national authorities constituting the infringements which the applicant considers herself to be the victim of - and the margin of appreciation of the Contracting State in this area, bearing in mind that this right is set out in Article 8 (art. 8) of the Convention. These reasons of international law must not, however, neglect an assessment of the social and legal situation of transsexuals in France , as the context within which the applicant ’ s complaint must be seen.

1.1. Miss B., wishing to marry her friend, asked the tribunal de grande instance at Libourne (see paragraph 13 of the judgment) "to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette". These heads of claim delimited the proceedings brought by the applicant before the domestic civil courts and, in accordance with the dispositive principle, formed the subject matter of the judgments given by the Libourne tribunal de grande instance, the Bordeaux Court of Appeal and finally the Court of Cassation, whose decision was the "final decision" under Article 26 (art. 26) of the Convention which could be "completely or partially in conflict with the obligations arising from the present Convention", as stated in Article 50 (art. 50).

1.2. However, the applicant interpreted the dismissal of this request as a refusal of the French authorities to acknowledge her "true sexual identity" and to "allow the indication of her sex to be corrected in the civil status register and on her official identity documents" (see paragraph 43 of the judgment), and she considered herself to be a victim within the meaning of Article 8 (art. 8) of the Convention.

But as a reading of her application shows, these complaints constitute a mutatio libelli before the Convention institutions, since no claim was put forward by the applicant before the domestic courts regarding the noting in the civil status register of the alleged change to her original sex as stated on her birth certificate or concerning her social situation after the morphological change of sex, these being precisely the factors which the majority took into consideration in arriving at their finding that there had been a violation of the said Article 8 (art. 8) (see paragraphs 59-63 of the judgment).

1.3. In my opinion, what Miss B. requested from the French courts was a "correction" of the alleged error as to sex and consequently the rectification of the civil status register and the replacement of her male forename by a female forename, following a priordeclaration by the court that she was of female sex. Miss B., intending to marry a man, did not ask the Court to hold that there was a case of transsexualism, but that there had been a mistake in registering her sex, since, although a woman, she had been registered as a man. She did not submit any requests relating to possible rectification of the indication of her sex in her official identity documents consequent on rectification granted in accordance with the relevant legislation (see paragraph 22 of the judgment).

1.4. It seems necessary to point out that in systems with a civil status register, a person ’ s civil status constitutes the expression of his legal personality and his position in society, and all the statements on his birth certificate, including that of sex, have an effect which goes beyond the individual interest, as they may affect the rights of others. In these systems civil status is a concept of public order and documents relating to such status are presumed to be correct. It follows that a change to a birth certificate can take place only in cases and according to procedures defined by law. Legal certainty thus requires that rectifications of civil status documents be regulated by law and controlled by the courts.

In French law, as the judgments given in the present case point out (see paragraphs 13-15 and 17 of the judgment), persons cannot dispose of their civil status at will. Articles 57 and 99 of the Civil Code (see paragraph 22 of the judgment) define the contents of birth certificates and the conditions for their rectification in the event of "error or omission", and it is for the courts to rule on a case by case basis on applications for rectification. The long list of decisions given by the French courts (see paragraph 23 of the judgment) and accepted by the public authorities in fact shows that it is possible in French law for statements relating to sex in civil status registers to be amended.

1.5. In the present case the Libourne tribunal de grande instance dismissed Miss B. ’ s application since, according to the experts ’ report, "it [was] thus apparent that the change of sex was intentionally brought about by artificial processes" and [ B. ’ s ] application "[could not] be granted without attacking the principle of the inalienability of the status of individuals" (see paragraph 14 of the judgment). The Bordeaux Court of Appeal, upholding that judgment, gave as reasons for its decision (see paragraph 15 of the judgment) that "his present state [was] not ‘ the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities ’ ".

Also in that judgment, the Court of Appeal (see paragraph 17 of the Commission ’ s report) said on this point: "No form of psychological or psychiatric treatment has been attempted; the first doctor who prescribed hormone treatment did not conduct any protected observation and no guarantee of such observation was given before the surgical operation carried out abroad". It added that the medical treatment "voluntarily undergone by Mr [B.] ... on the contrary ... indicate[d] a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [ B. ’ s ] biological development" (see paragraph 15 of the European Court ’ s judgment). In view of this finding by the court of second instance, the Court of Cassation considered that the decision had been justified in law and dismissed the applicant ’ s appeal.

1.6. Consequently, it follows from these judgments that the courts did not consider the applicant to be a "genuine transsexual", since the medical treatment had not been shown to be necessary and even after the surgical operation she had undergone in Morocco "Norbert [B.] continued to show the characteristics of a person of male sex" (see paragraph 17 of the judgment).

This conclusion, however, fell within the power to assess the evidence which belongs in principle to the national courts, according to the Court ’ s constant case-law (see inter alia the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 15, para. 33, and the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68). It should be noted in this connection that the applicant did not challenge the medical report submitted to the courts which decided on her application.

1.7. I am consequently unable to follow the conclusions of the majority in paragraph 55 of the judgment. Rectification of the indication of sex, like any rectification of a civil status document, under the aforementioned Article 99 of the French Civil Code, is a decision by a court which finds that there has been an error or an omission in the indication of sex as alleged by the applicant, with all the legal consequences - notably in civil law - of such a declaration both for the applicant and for third parties and society in general.

Under the principles which govern civil proceedings, it is not possible, as the majority appear to suggest, to effect "the insertion, once judgment had been given, in Miss B. ’ s birth certificate, in some form or other, of an annotation whose purpose [is] not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant ’ s present position", where such an error has not been proved in the proceedings or where such an "omission" - the finding of the "new sexual identity" - has not been requested by the applicant, in taking into account ex officio "the irreversible abandonment of the external marks of Miss B. ’ s original sex" or again "the applicant ’ s manifest determination" to have an operation without the guarantees of success required by the best medical practice.

1.8. In my opinion the majority, instead of keeping strictly to the specific terms of the applicant ’ s request to the French trial courts and the legal grounds for refusal set out in the judgments, based on the legal impossibility of allowing rectification of the statement of sex without proof of the existence of an error and of the fact that the change was not solely the result of the deliberate intention of the applicant but of an irreversible necessity according to the medical report, applied themselves rather to the abstract question of the position of transsexuals in France, thus departing from the Court ’ s traditional method.

2.1. Further, according to the Court ’ s case-law as stated in the two previous judgments relating to transsexuals in the United Kingdom, the Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106) and the Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184) - the latter given in a case which was virtually identical to the present one -, the question of the amendment of the birth certificates of transsexuals who wish to have an indication of sex noted in the civil status register is a question for the national authorities and their legislative or judicial powers, who are best in a position to respond to the needs or hopes of each society and "the requirements of the situation pertaining there in determining what measures to adopt" (see the above-mentioned Rees judgment, p. 17, para. 42 (a)). It is for them to regulate the conditions, extent and consequences of rectification of civil status documents in order to achieve a fair balance between the interests of transsexuals in having their membership of the other sex which they feel they belong to recognised by society, and the general interest in preserving the inalienability of that statement of fact on the birth certificate - morphological or biological sex - in order to preserve the rights of others, in particular if the transsexual is married or wishes to marry or if he has children or may have children or wishes to adopt some.

2.2. Indeed, the Court has already said (see the Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67) that "although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations". However, given that "the notion of ‘ respect ’ " for private life "is not clear-cut", especially as far as such positive obligations are concerned (ibid., pp. 33-34, para. 67), these obligations are subject to the State ’ s margin of appreciation and "having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case" (see the above-mentioned Rees judgment, p. 15, para. 37).

The Court also stated in the Rees judgment (ibid., p. 14, para. 35) and the Cossey judgment (ibid., p. 15, para. 36) that the refusal to amend the register of births could not be regarded as an interference with a person ’ s private life within the meaning of Article 8 (art. 8) of the Convention. What the applicant was arguing was not that the State should abstain from acting but rather that it should take steps to modify its existing system, and the question whether an effective respect for the transsexual ’ s private life imposed a positive obligation on the State in this regard was to be answered by considering the "fair balance that has to be struck between the general interest of the community and the interests of the individual". In reaching its conclusion that no such obligation was incumbent on the respondent State, the Court took account inter alia of the fact that "the requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system for the registration of births".

2.3. When giving these decisions the Court noted (see the Cossey judgment, ibid., p. 17, para. 42, and the Rees judgment, ibid., p. 19, para. 47) "the seriousness of the problems facing transsexuals and the distress they suffer" and took note of the resolution adopted by the European Parliament on 12 September 1989 and of Recommendation 1117 (1989) of the Parliamentary Assembly of the Council of Europe of 29 September 1989, both of which sought to encourage the harmonisation of laws and practices in this field, and pointed out that "the need for appropriate legal measures concerning transsexuals should be kept under review having regard particularly to scientific and societal developments" (see the Rees judgment, ibid., pp. 17 and 18, paras . 42 and 43, and the Cossey judgment, ibid., p. 16, para. 40).

2.4. But as the majority point out (see paragraphs 47 and 48 of the judgment), no scientific or societal development has taken place within the last sixteen months which would justify changing this case-law. Despite the efforts of the majority to distinguish the cases so as to maintain the Court ’ s case-law, the circumstances of the present case are not so different from those of the Rees and Cossey cases as to explain a finding of a violation here.

2.5. Nor can the question be resolved by "incidental adjustments to the existing system" (see the Rees judgment, ibid., pp. 17-18, para. 42) such as a rectification of the birth certificate in order to acknowledge the "new sexual identity" of post-operative transsexuals or their "social sex", since the French legal system does not permit this. The courts acting in the exercise of their judicial power cannot go beyond an interpretation of the law applicable to the facts of the case as proved by their assessment of the evidence submitted to them. They cannot order forms of rectification other than those provided for by law since doing otherwise would require "the very basis" of the civil status system to be altered, in much the same way that the United Kingdom would have been required to change its system of registration of births (see the above-mentioned Rees judgment, pp. 16-18, paras . 39, 40 and 42 (a), and the above-mentioned Cossey judgment, p. 15, para. 38 (a)), which justified the findings in those two cases that Article 8 (art. 8) had not been violated by the United Kingdom.

3.1. Finally, the facts of the present case, as regards the position of transsexuals in France , lead us to the same conclusion, namely that there has not been a violation by France of the right to respect for the private life of true transsexuals. They demonstrate that in France: (1) "no legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have recognised" (see paragraph 18 of the judgment); (2) "it has been possible for surgical operations to take place in France since 1979 subject to medical control" (ibid.); (3) "the costs of some of these operations are borne by the social security service" (ibid.), according to the Government, where a medical commission has studied the person in question for at least two years and the operation takes place in a public hospital; (4) "as a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc." (see paragraph 25 of the judgment); and (5), as I have pointed out above, "a large number of French tribunaux de grande instance and courts of appeal have granted applications for amendment of entries in civil status registers relating to sex and forenames" (see paragraph 23 of the judgment).

3.2. Thus there are medical and legal controls over changes of sex in France, but such precautions cannot, however, be criticised either from a legal point of view - having regard to the present civil status system in France - or from a medical point of view - bearing in mind the very serious risks involved in lifelong hormonal medical treatment and implantations and the irreversibility of removal of the sexual organs. On the contrary, in my opinion, they deserve praise for avoiding mistakes with irreversible consequences, hasty decisions or surgical operations which are of doubtful necessity or even inadvisable, even for those who genuinely believe themselves to be transsexuals.

This attitude also serves to discourage legal claims for rectification of civil status based on the fait accompli of an operation which has been performed without verifying its irreversible necessity or without medical guarantees of success, since the medical expert report must give an opinion on its therapeutic necessity.

4. As I have concluded that there was no violation of the Convention in the present case, I do not consider it logical to join in the conclusion of the majority that the respondent State is to pay the applicant just satisfaction.