CONCURRING OPINION OF JUDGE WALSH

1. I agree that there has been a breach of Article 8 (art. 8) of the Convention in the present case. My opinion is founded only upon the reasons set out hereinafter.

2. I am satisfied that the judgments of the Court in the case of Rees (Series A no. 106) and in the case of Cossey (Series A no. 184) respectively were correct in principle and that there is nothing in the present case to warrant a departure from them.

3. The evidence establishes that the applicant ’ s birth certificate correctly described the applicant as being of the male sex and the fact that the applicant was and is biologically of the male sex is established. There is no suggestion of any error having been made as to that fact. Therefore to require that entry to be altered to record that the applicant was born a member of the biological female sex would be to falsify a correct historical record and to substitute it with an untruth.

4. An area of life in which the biological sex of a person is of supreme vital importance is that of marriage. The Court has already decided in the Cossey case that the marriage referred to in Article 12 (art. 12) of the Convention is confined to the intermarriage of two persons one of whom is biologically of the female sex, thus reflecting what has been universally accepted throughout human history.

The fact that some States may now in their national laws permit and recognise a legal relationship or partnership between persons of the same biological sex as having the same legal incidents as a marriage and even using the word "marriage" to describe such arrangement cannot by so doing make it the same as a marriage between persons of opposing biological sexes as envisaged by Article 12 (art. 12) of the Convention. If a parent of either sex undergoes a so-called "sex change" operation to acquire the appearance, anatomical or otherwise, of a person of the other biological sex it would be the height of absurdity to describe a father as having become his own child ’ s mother or aunt as it would be to describe a mother as having become her own child ’ s father or uncle.

5. I am of the opinion that the respondent State could not reasonably be expected to alter its law in such a way as to obliterate the truth of a national record or to keep forever concealed for all purposes and from all persons and bodies without qualification the true biological sex of a person. In my opinion to do so could well lead to a breach of Articles 8 and 12 (art. 8, art. 12) of the Convention. It could be very unfortunate if the law permitted a situation in which a person wishing to marry a person of the other biological sex could not, when a doubt arises, be satisfied as to the true biological sex of the other party save by the admission of that other party. Therefore any alleged violation of Article 8 (art. 8) in this sphere must be examined in the context of not totally concealing or falsifying a record of historical fact.

6. Subject to the above-mentioned qualification it now falls to consider in what respect the respondent State can be thought to have been in violation of Article 8 (art. 8) of the Convention.

The applicant is psychologically self-identified with the female sex and apparently that condition has existed since childhood and has grown more pronounced with age. It ultimately led the applicant to undergo "sex-change" surgery necessitated by psychological imperatives rather than medical ones. In the result the applicant adopted a new "gender identity" in that the new identity is to all outward appearances a female identity. The applicant has sought to have this new identity respected in French law as an essential element of the privacy of her new life style free from interference by the respondent State and its agencies and public authorities. I do not consider that the adoption of a female first name from within the range of first names permitted by French law with a view to establishing the adopted identity is an unreasonable request. It is clear that the withholding of permission for this change has proved to be an interference with the privacy of the adopted life style. Similarly, obligatory identification documents which contradict the adopted identity also constitute an interference.

The respondent State has not shown any valid justification within the terms of Article 8 para. 2 (art. 8-2) of the Convention. Admittedly complying with the applicant ’ s requests could cause considerable administrative inconvenience but that could not be a justification for the respondent ’ s refusal. The civil status register is conclusive as to the fact that the information therein was furnished to the appropriate officer but is not conclusive as to the correctness or the truth of the information so supplied. Thus the civil status register cannot be taken as conclusive proof of the biological sex of the person so registered although it could be regarded as prima facie evidence to stand until displaced. It is for the national authorities to devise the legal measures necessary to achieve the objectives of providing identity documents consistent with the adopted identity without revealing the true biological sex of the person concerned if in fact it is not the same as that indicated in the documentation while at the same time without obliterating from the national records information which tends to establish the true biological sex of a person and that such information should not be revealed save where there is a real necessity to do so.