CONCURRING OPINION OF JUDGE RESS

I fully agree with the judgment of the Chamber and would like to add the following.

1. Even though the case concerns the interpretation of the terms of a contract negotiated between the applicant and her private insurance company and related litigation, three factors must be taken into account: firstly, the parallelism between private health insurance and the social-security system in Germany; secondly, the impact of Article 8 on private-law relations between individuals or between individuals and companies; and, thirdly, respect ultimately for the free will of transsexuals and the choices made by them.

2. There exists a close legal relationship between the social-security system in Germany and, as an alternative or addition for certain groups of people, private insurance. The conditions of private insurance must, mutatis mutandis , be the same as those of the public system. As is clear from the judgment of the Chamber, gender-related operations are covered by the social-security system and by private health insurance although, it would appear, the conditions laid down by administrative courts and civil courts are, at least in their tendency, different (see paragraph 33 of the judgment).

3. According to German constitutional law, fundamental rights have a direct impact on relations between private persons. The same is true with the rights of the Convention. Under the Convention, Contracting States have to ensure (Article 1) that individuals can enjoy their private life and one of the requirements, as the Court stressed in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002-VI), is respect for gender identity. The terms of the contract between the applicant and her private insurers must be interpreted in the light of these requirements of Article 8. The term “necessary” in relation to gender reassignment surgery must therefore be interpreted with a view not only to respecting the difficult situation of potential transsexuals but also to taking into account the findings of science which were set out in the recent judgment in Christine Goodwin . According to those findings, the situation is one which is dominated by the brain and is characterised by both objective and subjective elements. In the light of these requirements, did the German courts approach the question with due regard to Article 8? Despite the fact that the doctor who had seen the applicant concluded, after weighing the advantages and disadvantages in the applicant ’ s case, that the advantages outweighed the disadvantages and that an operation was therefore to be recommended , the German courts held that that was not a clear affirmation of the necessity of the operation. The Court of Appeal ’ s reasoning would be quite acceptable and, as is said in the dissenting opinion, reasonable if it did not fall to be judged from the standpoint of whether the requirements of Article 8 – respect for the specific private-life circumstances of the applicant – had been observed.

4. This leads me to my third and last consideration. In cases where the question arises whether a gender reassignment operation is necessary and the doctor who examined the person concerned came to the conclusion, as in the instant case, that the applicant was a transsexual and that transsexuality constituted a disease and accordingly, after weighing up the drawbacks and advantages, recommended the operation, the decision of the applicant should always be the final and decisive factor to indicate that the operation was necessary. I think that this type of case, following the reasoning in Christine Goodwin , can be clearly distinguished from other medical cases. Where a transsexual, after lengthy treatment, has been told by his or her doctor that in that doctor ’ s view, the advantages of an operation outweigh the disadvantages, it cannot be said that the transsexual caused the “disease” deliberately. This does not mean that in the case of every transsexual surgery should be assumed to be necessary, but if a transsexual has, over quite a long period, undergone treatments of a different kind, such as psychotherapy (see paragraph 16 of the judgment), the individual has done everything necessary to come finally to the conclusion, which has to be respected, that only a gender reassignment operation would be helpful and thus necessary in his or her case. The applicant had already had recourse to less drastic means, such as hormonal treatments. To prolong her situation, which had already lasted quite a time (see paragraphs 11 and 26 of the judgment), would, in my view, have amounted to treatment not in keeping with “respect” for private life under Article 8. It is a most intimate and private aspect of a person ’ s life whether to undergo a gender reassignment operation, and therefore the courts, in considering the necessity of an operation should take into account, as one of the decisive factors, the wishes of the transsexual. I cannot see any arbitrary element in the applicant ’ s decision finally, after quite lengthy treatment, to undergo the reassignment operation, when even her doctor had recommended it.

DISSENTING OPINION OF JUDGES CABRAL BARRETO, HEDIGAN AND GREVE

1. We regret that we must disagree with the majority in this case.

For us, this case is not about the rights of transsexuals to respect for their private life, dignity and gender self-identification. These rights we consider now clearly established in the jurisprudence of the European Court of Human Rights, most recently in Christine Goodwin v. United Kingdom ( [GC] , no. 28957/95, ECHR 2002-VI) with which we are in full agreement. In our view, this case deals with the adjudication at the applicant ’ s request, by the German courts, on two of the terms of her private contract of medical insurance. We fear that the judgment overly restricts the ability of one of the parties, in this case the defendant insurance company, to litigate the terms of a contract negotiated with the other party, in this case, the applicant.

2. The facts of th e case are outlined in the judg ment and need no repetition. Suffice it to note that the history of the case is somewhat unusual. The German courts were obliged to determine whether, pursuant to the General Insurance Conditions, the applicant ’ s private insurers were obliged to reimburse her 50% of the cost of certain pharmaceutical expenses connected with hormone treatment and her gender reassignment operation.

3. The issue before the German courts was whether the operation and attendant treatment were necessary and whether the disease had been self-inflicted. The terms of the insurance contract were such that, were the operation not necessary or the disease self-inflicted, the insurer would not be obliged to pay out on the policy.

4. The case was heard initially by the Berlin Regional Court . It decided to take expert evidence on the following matters:

( a ) W as the applicant a male - to - female transsexual ?

( b) W as her kind of transsexuality a disease ?

(c ) W as the gender reassignment operation the necessary medical treatment for the transsexuality ?

(d ) W as this treatment generally recognised by medical science ?

In the Regional Court , the applicant failed. That court considered that the hormonal and surgical course intended by the applicant could not reasonably be considered as necessary at that time and on its own and therefore in this case. It was of the view that the applicant ought first to have had recourse to less radical means, namely an extensive course of 50 to 100 psychotherapy sessions as recommended by the psychiatrist Dr H., the author of the expert opinion in question. The applicant had in fact refuse d to continue after 24 sessions (confusion as to whether there were 2 or 24 sessions is resolved, with the agreement of the G overnment, in favour of the applicant ’ s case , as 24 sessions ) . It seems to us from reading Dr H. ’ s report that it was his firm view that a full course of psychotherapy was to be, at the very least, one of the components of a comprehensive treatment possibly including surgery , and an essential part of a successful gender reassignment . In the light of this report and of the somewhat unusual background to the applicant ’ s condition together with the irreversible nature of the surgery, the Regional Court ’ s above view seems to us to be not unreasonable.

The Regional Court further found that the evidence did not show conclusively that the gender reassignment measures would relieve the applicant ’ s physical and mental difficulties and that this was a further criterion for determining their medical necessity. The expert had recommended the operation from a psychiatric-psychotherapeutic point of view, as it would improve the applicant ’ s social situation.

According to the court ’ s assessment of the evidence, this expert report did not establish that the operation was the necessary medical treatment in this case but had expressed the view that the applicant ought first to complete the extensive course of psychotherapy recommended by the psychiatrist. This assessment does not appear to us to be either arbitrary or unreasonable and we do not find any reason therefore to criticise it.

It is to be noted that at the time of the Regional Court ’ s hearing, the applicant had not yet had the surgery in question.

5. The applicant appealed to the Berlin Court of Appeal. She objected to the finding of non-necessity. She submitted that she had atte nded between twenty-four and thirty-five psychotherapy sessions. She refused to attend any more. She referred to the written expert opinions and referred to the possibility of hearing these experts.

6. In November 1994 the applicant went ahead with the surgery without completing the course of psychotherapy which had been a dvised as an essential part of a gender reassignment including possible surgery.

7. On 27 J anuary 1995 the Court of Appeal, following an oral hearing, dismissed the appeal. The reasons are set out in paragraphs 21 to 28 of the present judgment .

8. For the purposes of this dissenting opinion, we consider the following findings of the Court of Appeal of note:

( a) the applicant was a transsexual;

( b) according to Dr H., her transsexuality constituted a disease;

( c) the Court of Appeal confirmed the Regional Court ’ s conclusions as follows:

( i ) Dr H. had not confirmed the necessity of the operation;

( ii) in Dr H. ’ s view, such surgery was a possible medical treatment but the question of necessity could not be clearly affirmed ;

( iii) weighing up the limitations and advantages in the applicant ’ s case , Dr H. was of the view that the advantages prevailed and therefore he recommended the operation;

( iv) the Court of Appeal found Dr H. ’ s formulation to be cautious and not therefore a clear affirmation of the necessity of the operation;

( v) in the Court of Appeal ’ s view, Dr H. ’ s report showed that he regarded the success of surgery in the applicant ’ s case as rather uncertain. The Court of Appeal described this as “a vague hope” and concluded that such could not justify the necessity of surgery bearing in mind the aim of health insurance.

We find all the above conclusions to be reasonable in the circumstances .

9. The Court of Appeal then went on to consider clause 5.1(b) of the contract and whether the applicant had in fact caused her own disease as had been argued by the defendant insurance company.

The Court of Appeal referred to the case history contained in the expert opinion of Dr O. in 1991. It quoted from this as set out in paragraphs 26 and 27 of the present judgment and, a s a result, the Court of Appeal found that the applicant had caused the disease deliberately. Again we are of the view that it was open to the Court of Appeal on any reading of this report reasonably to come to such a conclusion and we note that all it needed to rely on were the strictly factual details of the applicant ’ s case history as contained therein.

10. We agree that it is for the national courts to assess the evidence they have obtained but that it is for the European Court to ascertain whether the proceedings considered as a whole were fair. We further agree that the national courts are under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. As noted above, we are also in agreement with the decision of this C ourt in Christine Goodwin .

11. We cannot agree with the characterisation of Dr H. ’ s recommendation for surgery as “unequivocal” (see paragraph 54 of the judgment) . As noted above, we take the view that the conclusions of both the Regional Court and the Court of Appeal in this respect were reasonable. Their characterisation of his report was “cautious”, “not a clear affirmation of the necessity of the operation” . They also noted that “success of the operation was uncertain” and that the recommendation was based on a “vague hope” of success.

12. We are in agreement that gender identity is one of the most intimate and private aspect s of any person ’ s life. We cannot , however , agree as outlined in the second sentence of paragraph 56 of the judgment that this means that there is anything disproportionate about requiring a person such as the applicant to prove the medical necessity of treatment , including irreversible surgery. This case involves an action by the applicant to force her private insurers on foot of her contract with them to reimburse her 50% of the cost of such treatment. One of the terms of that contract as outlined above was that such treatment must be medically necessary. The insurance company took the view that it was not. Not unnaturally, the applicant took the view that it was. The issue therefore was the very question of necessity. Nothing in our view in Christine Goodwin prohibits or should prohibit a party to such a contract of insurance from litigating any term of that contract including the term requiring the medical necessity of the relevant treatment. To find otherwise , we fear, means that the medical necessity of surgery would have to be assumed in every case involving a transsexual. This in our view cannot be correct. Indeed, t he likely consequence would be the exclusion of such cover from medical insurance policies to the great disadvantage of transsexuals in general.

13. In relation to the question of causation, our opinion differs also from that of the majority for the same reasons as outlined above. In this regard, we note the most unusual historical background to this case. We note that the applicant herself had agreed to the use of the reports in the earlier proceedings. The factual history contained therein is quite striking on the issue of causation and , in the context of the action on the contract in question we do not consider the decision of the Court of Appeal in this regard to be arbitrary or unreasonable and , as noted above , save as provided, it is for the national courts to assess the evidence. In our view , for the reasons outlined, the proceedings taken as a whole were fair.

14. For the above reasons we regretfully disagree with the majority in this judg ment and find no breach of Article 6 § 1 of the Convention.

Alleged violation of Article 8 of the Convention

15. We agree with the general principles as outlined in paragraphs 69 to 72 of the judgment . We cannot agree with the statement in parag raph 79 that the Regional Court referred the applicant to the possibility of psychotherapy as a less radical means of treating her condition “ contrary to the statements contained in the expert opinion ”. As outlined in paragraph 16 of the judgment , the Regional Court found that the applicant ought to have first had recourse to less radical means. Such a view was very significant in the context of necessity. We have above expressed our disagreement with the characterisation of Dr H. ’ s view on the necessity for surgery as an “unequivocal recommendation” . We further d is agree with the descriptio n of the Court of Appeal ’ s judg ment in relation to causation as a reproach.

16. The task of the German courts at the request of the applicant in this case was to adjudicate upon her contract of insurance in respect of two issues:

( a) the necessity of surgical gender reassignment ;

( b) the causation of the applicant ’ s condition.

In order to do so it was inevitable that a painful and intrusive analysis of the applicant ’ s case history was required. A proper respect for the undoubted right of transsexuals to respect for their dignity, private life and gender self-determination demands that such an adjudication be carried out with all appropriate respect and decorum , but does not prevent such an analysis being carried out at all. It seems to us that this judgment provides otherwise and that , in order to follow it, domestic courts would never be able to carry out such an adjudication in any meaningful manner.

It is for these reasons that , in respect of the Arti cle 8 and Article 6 complaints, we respectfully beg to differ.