PARTLY DISSENTING JOINT OPINION OF JUDGES BINDSCHEDLER-ROBERT AND RUSSO

(Translation)

In the instant case the Court has confirmed the opinion it expressed in its judgment in the Rees case, in which it said that the United Kindgom could not be required to adapt its system of recording civil status in such a way that a transsexual ’ s change of sexual identity appeared in his birth certificate. However, we are no more persuaded now than we were then that the arguments advanced in support of this view are valid. It remains our view that as regards the way in which it draws up the civil-status documents in question - that is to say the birth register and birth certificate - the United Kingdom has not taken all the appropriate steps to ensure, as far as possible, that allowance is made for changes in certain persons ’ sexual identity; and we consider that although, as we are glad to acknowledge, it has endeavoured to meet transsexuals ’ demands in several other respects, it has therefore to this extent failed to respect the applicant ’ s private life. In our opinion, a just balance could have been struck between the public interest and the interests of the individual without upsetting the present system of recording civil status; the fact that such a balance would not necessarily meet all the applicant ’ s demands should not prevent the Court from giving it due weight in assessing whether Article 8 (art. 8) has been complied with.

As to the rest, and in order to avoid repeating ourselves, we would refer to the dissenting opinion that we expressed jointly with our late lamented colleague Mr Gersing in the Rees case.

JOINT PARTLY DISSENTING OPINION OF JUDGES MACDONALD AND SPIELMANN

(Translation)

1. Like the majority, we consider that there is no violation of Article 12 (art. 12) of the Convention.

2. On the other hand, we are of the opinion that there is a violation of Article 8 (art. 8).

Whilst we can agree with sub-paragraphs 1 and 2 of paragraph 40 of the judgment, the same does not apply to sub-paragraph 3 of that paragraph, which reads:

"There have been certain developments since 1986 in the law of some of the member States of the Council of Europe. However, the reports accompanying the resolution adopted by the European Parliament on 12 September 1989 (OJ No C 256, 9.10.1989, p. 33) and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the Council of Europe on 29 September 1989 - both of which seek to encourage the harmonisation of laws and practices in this field - reveal, as the Government pointed out, the same diversity of practice as obtained at the time of the Rees judgment. Accordingly this is still, having regard to the existence of little common ground between the Contracting States, an area in which they enjoy a wide margin of appreciation (see the Rees judgment, p. 15, para. 37). In particular, it cannot at present be said that a departure from the Court ’ s earlier decision is warranted in order to ensure that the interpretation of Article 8 (art. 8) on the point at issue remains in line with present-day conditions (see paragraph 35 above)."

We consider that since 1986 there have been, in the law of many of the member States of the Council of Europe, not "certain developments" but clear developments.

We are therefore of the opinion that, although the principle of the States ’ "wide margin of appreciation" was at a pinch acceptable in the Rees case, this is no longer true today.

Paragraph 42 of the judgment contains the following passage:

"The Court would, however, reiterate the observations it made in the Rees judgment (p. 19, para. 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review."

This is meagre consolation for the individuals concerned. In our view, concrete measures are necessary now.