JOINT DISSENTING OPINION OF JUDGES PALM, FOIGHEL AND PEKKANEN

1. We agree with the majority that the relevant facts and issues to be decided in the Cossey case are similar to those in the Rees case. We have, however, arrived at conclusions which differ from those of the majority. Our reasons are the following.

2. In paragraph 37 of its Rees judgment the European Court of Human Rights stated with regard to Article 8 (art. 8) that in this area "the law appears to be in a transitional stage". It continued, in paragraph 47, by saying that "(t)he need for appropriate legal measures should be kept under review having regard particularly to scientific and societal developments".

This is an unusual but important and relevant statement. It underlined the fact that the question of the status of transsexuals is one where legal solutions necessarily follow medical, social and moral developments in society. It also indicated to the Contracting States that the Rees judgment might not be the Court ’ s last word on the subject and that it might be overruled. The majority in the Rees case thus reserved its right to reconsider its opinion in the light of societal developments. These considerations should also, in our opinion, be applied in the interpretation of Article 12 (art. 12).

For these reasons it is not necessary, from the point of view of the general consistency and homogeneity of this Court ’ s practice, to examine the Cossey case solely by reference to the decision in the Rees case.

3. Miss Cossey, like Mr Rees, belongs to that small group of people who psychologically are firmly convinced that they belong to the sex opposite to their physical sex. Miss Cossey underwent gender reassignment surgery in 1974 and she has since lived a full life as a female both psychologically and physically. She seeks full legal recognition of her new, current sexual identity. Transsexuals have, however, not been very successful in their demands that their new status be accepted by the legislature and by the courts.

This negative attitude towards transsexuals is based on deeply rooted moral and ethical notions which, nevertheless, seem to be slowly changing in European societies. There is a growing awareness of the importance of each person ’ s own identity and of the need to tolerate and accept the differences between individual human beings. Furthermore, the right to privacy and the right to live, as far as possible, one ’ s own life undisturbed are increasingly accepted.

These new, more tolerant attitudes are also reflected in modern legislation as well as administrative and court practices. Several European States have accepted the possibility of recognising a change of sex on the part of transsexuals and have, subject to certain conditions, acknowledged their right to marry (Sweden 1972, Denmark 1973-75, Federal Republic of Germany 1980, Italy 1982 and the Netherlands 1985). In some States the same result has been achieved through administrative or court practice (e.g. Finland and Norway ). In addition, rectification of the birth certificate following a change of sex can be obtained in some European countries (e.g. Belgium , Luxemburg , Spain and Turkey ). This comprises in some States also the right to marry.

In this context it is important to note that in 1989 a stand on the question of the rights of transsexuals was taken both by the Parliamentary Assembly of the Council of Europe (Recommendation 1117/1989) and by the European Parliament (Resolution of 12 September 1989, OJ no. C 256, 19.10.1989, p. 33). The European Parliament called on the Member States "to enact provisions on transsexuals ’ right to change sex by endocrinological , plastic surgery, and cosmetic treatment, on the procedure, and banning discrimination against them". The procedure should offer, inter alia, legal recognition, change of first name, and change of sex on birth certificates and identity documents. The Recommendation of the Parliamentary Assembly contains similar demands. The decisions of these representative organs clearly indicate that, according to prevailing public opinion, transsexuals should have the right to have their new sexual identity fully recognised by the law.

4. With regard to the alleged violation of Article 8 (art. 8) of the Convention, the central point is that the register of births records particulars, such as the sex of the child, as at the time of the birth and cannot under English law be changed to reflect the new sex of a post-operative transsexual. As a consequence of this, Miss Cossey is forced to reveal intimate personal details whenever a birth certificate is requested, for instance by certain institutions and employers. These situations are painful and distressing for her. She is obliged to choose between either hiding her new sexual identity, with all the possible consequences, or revealing her new sex and facing humiliating and even hostile reactions. In these and similar situations Miss Cossey ’ s right to respect for her private life is, in our opinion, violated. What is more, the present English system relating to birth certificates constitutes a continuous and direct interference in the private life of Miss Cossey.

The retention of that system cannot, in our opinion, satisfy the requirements of Article 8 para. 2 (art. 8-2) of the Convention. It is merely a question of administrative procedure which, as the examples from other democratic societies clearly show, can be arranged in several different ways so as not to violate the rights of transsexuals.

5. When drafting Article 12 (art. 12) of the Convention the draftsmen probably had in mind the traditional marriage between persons of opposite biological sex as the Court stated in paragraph 49 of its Rees judgment. However, transsexualism was not at that time a legal problem, so that it cannot be assumed that the intention was to deny transsexuals the right to marry. Moreover, as we have tried to show above, there have been significant changes in public opinion as regards the full legal recognition of transsexualism . In view of the dynamic interpretation of the Convention followed by the Court, these social and moral developments should also be taken into account in the interpretation of Article 12 (art. 12).

Gender reassignment surgery does not change a person ’ s biological sex. It is impossible for Miss Cossey to bear a child. Yet, in all other respects, both psychological and physical, she is a woman and has lived as such for years.

The fact that a transsexual is unable to procreate cannot, however, be decisive. There are many men and women who cannot have children but, in spite of this, they unquestionably have the right to marry. Ability to procreate is not and cannot be a prerequisite for marriage.

The only argument left against allowing Miss Cossey to marry a man is the fact that biologically she is considered not to be a woman. But neither is she a man, after the medical treatment and surgery. She falls somewhere between the sexes. In this situation a choice must be made and the only humane solution is to respect the objective fact that, after the surgical and medical treatment which Miss Cossey has undergone and which was based on her firm conviction that she is a woman, Miss Cossey is psychologically and physically a member of the female sex and socially accepted as such.

It should also be borne in mind that Miss Cossey has no possibility of marrying unless she is allowed to marry a man as she wishes. It would be impossible, both psychologically and physically, for her to marry a woman. There would certainly also be doubts as to the legality of a marriage of this kind.

6. For these reasons we are of the opinion that in the present case there is a violation of Articles 8 and 12 (art. 8, art. 12) of the Convention.

[*]  The case is numbered 16/1989/176/232.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amended Rules of Court which entered into force on 1 April 1989 are applicable to the present case.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 184 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.