DISSENTING OPINION OF JUDGES BINDSCHEDLER-ROBERT, RUSSO AND GERSING

(Translation)

1. With regard to Article 8 (art. 8), the applicant complained that the Government had not taken the necessary measures to ensure recognition of his sexual identity in all the circumstances in which this could be of importance. In particular, he criticised the Government for continuing to issue him with a birth certificate showing that he was of the female sex, without any further explanation. The Commission considered that the United Kingdom had failed to respect the applicant ’ s private life as required under Article 8 para. 1 (art. 8-1) of the Convention, because it had not made any provision for measures which would make it possible to take account, in the applicant ’ s civil status, of any legitimate changes. In what follows, it seems to us that we can accordingly concentrate on the question whether respect for Mr. Rees ’ s private life entails certain measures being taken by the State with respect to the way in which civil-status documents concerning him are drawn up.

2. The operations Mr. Rees underwent and the concomitant anguish and suffering show how real and intense was his desire to adopt a new sexual identity as far as possible. We agree with the majority, moreover, that the United Kingdom endeavoured to go a considerable way towards meeting the applicants ’ s demands, for example by giving him - like everyone else - the opportunity of changing his name, by giving him a passport which showed his new sexual identity and by allowing him to a large extent to adopt socially the male role corresponding to his innermost inclinations and to his new sexual appearance.

3. With regard to one thing - his birth certificate - however, the British authorities did not feel bound or able to take Mr. Rees ’ s new identity into account. In practice, though, it appears necessary to produce a birth certificate in connection with a number of formalities, such as applying for a passport for the first time or enrolling at university. This has resulted - and may again result - in the applicant ’ s having to face distressing situations which amount to an interference with his private life and thus to a breach of Article 8 (art. 8). We are of the view that this could be avoided by means of an annotation in the birth register to the effect that there had been a change in Mr. Rees ’ s sexual identity; at the same time, it could be made possible for the applicant to obtain a short certificate which would indicate only his new sexual identity and thus make it easier to safeguard the inviolability of his private life. We recognise, moreover, that in this sphere the State has a wide margin of appreciation as regards the method to be used in order to remedy the situation in question and we do not in any way rule out the possibility that other measures might achieve the same aim. It will be remembered, for instance, that on 5 October 1982 the Commission endorsed a friendly settlement between a group of applicants and Italy (application no. 9420/81) whereby as a result of an Act recently passed in Italy, the applicants can henceforth secure rectification of their civil status.

4. We do not, on the other hand, consider that Article 8 (art. 8) requires that Mr. Rees be guaranteed secrecy in the sense that only his new sexual identity should appear in all official documents: the birth register is public and there is certainly a public interest in its remaining so.

5. A variety of objections, which seem to us unconvincing, have been made to this conclusion that it is necessary to reflect Mr. Rees ’ s change of sexual identity in official documents concerning him.

(a) There is obviously no question of correcting the registers by concealing the historical truth or of claiming that Mr. Rees has changed sex in the biological sense of the term. The idea is merely (as already happens in the United Kingdom in other cases - for example, with adoption) to mention a development in the person ’ s status due to changes in his apparent sex - what we have called his sexual identity - and to give him the opportunity to obtain a short certificate which does not disclose his previous status. This would better reflect the real situation and to that extent would even be in the public interest.

(b) The arrangement we envisage would certainly not solve all Mr. Rees ’ s problems and would not entirely fulfil his hopes, but it would lessen his difficulties. At all events it would remove the current discrepancy, firstly, between the various identity documents he has to use and, secondly, between his current appearance and the entry relating to his sex in his birth certificate.

(c) Nor does it seem to us that an annotation in the birth register would entail any kind of change in the British system of recording civil status; the practice in other States has shown that this was not an inevitable consequence.

(d) In rejecting the arrangement we recommend, the majority of the Court also relies on the fact that the aforementioned annotation would not relate to facts of legal significance, unlike the case with adoption and legitimation. It may be said against this argument that the annotation in question would also certainly have legal significance even if it was not expressly provided for in law, in that it would imply that in all situations where the apparent sex was decisive (work, retirement, etc.), Mr. Rees should be treated as an individual of the male sex.

6. As regards the alleged breach of Article 12 (art. 12), we share the view of the majority.

[*]  Note by the Registrar: The case is numbered 2/1985/88/135. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.