LEGAL NOTES AND COMMENTARIES

Respect for the private lives of transsexuals

ALASTAIR MOWBRAY

Meaning of right to respect for private life under Article 8 of the European Convention on Human Rights Case: Sheffieeld and Horsharn v the United Kingdom Law report: Council of Europe, 30 July 1998 (available from mnv.

dhcour.coe. fr)

FACTS

The first applicant, Kristina Sheffield, is a British citizen who was born in 1946. At birth this applicant was registered as being of the male sex. Later Sheffield married and that relationship produced a daughter. In 1986 the applicant began treatment at a gender identity clinic in London. She claimed that her consultant psychiatrist and surgeon informed her that she was required to obtain a divorce before gender re-assignment surgery could be performed (the divorce took place and the applicant’s former wife obtained a court order terminating Sheffield’s access to her daughter). At an unspeci- fied later date the applicant successfully underwent re-assignment surgery and treatment. She then changed her name to its present form by deed poll. Her new name was recorded on her driving licence and passport. However,

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Sheffield asserted that in a number of contexts her previous identity (i.e. her original name and gender) is recorded or she had to disclose it. These include: her birth certificate, various social security records and police files. Also, when she attended court to stand surety for a friend she was required to dis- close to the court her previous name (more generally under the Perjury Act 191 I she is obliged to disclose her former sexual identity in the context of various judicial proceedings under pain of criminal sanction). When she sought to make a request for information (held on her by public authorities) under the terms of the Data Protection Act 1984, she learned that she would have to state her sex and other names. Finally, when she entered into a car insurance contract she was legally obliged to disclose her sex, which under English law continues to be male. Consequently, she argued that the refusal of the British authorities to give legal recognition to her status as a woman following gender re-assignment surgery violated, inter a h , her right to respect for her private life under Article 8 of the Convention. This provision states that:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

( 2 ) There shall be no interference by a public authority with the exer- cise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of heaith or morals, o r for the protection of the rights and freedoms of others.

The second applicant, Rachel Horsham, is also a British citizen who was born in 1946. However, she has been living in the Netherlands since 1974 and gained Dutch citizenship in 1993. This applicant was registered as a male at birth, but from an early age she experienced difficulties in relating to herself as a male. By the time she was 21 she understood that she was a trans- sexual and she left the UK to live as a female. From 1990 Horsham received psychotherapy and hormonal treatment and in 1992 she underwent gender re-assignment surgery in Amsterdam. Thereupon, she applied to the British Consulate for a change of photograph and the inclusion of her new name in her passport. She was informed that this could be undertaken only in accordance with an order from the Dutch courts. The Amsterdam Regional Court granted her an order that the Dutch authorities should issue her with a birth certificate recording her new name and her gender as female. In the light of this order the British authorities issued her with a new passport (with her new name and her gender as female). The applicant subsequently requested the British government to amend her original birth certificate to record her gender as female. The Office of Population, Censuses and Surveys (OPCS) replied that there was no provision in UK law for such

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amendments. Horsham has a male partner whom she intends to marry, but she was informed by OPCS that as a matter of English law, if she were to be domiciled in the UK, she would be precluded from contracting a valid marriage. Under English law, marriage is defined as the voluntary union between a man and a woman, determined by biological criteria and ignor- ing surgical intervention: Corbett v Corbett (1971) and R. v Tan (1983). Consequently, Horsham complained that the British authorities’ refusal to recognize her post-operative status as a woman violated, inter alia, her right to respect for her private life (Article 8) and her right to marry (Article 12). The European Commission of Human Rights expressed the opinion (by fifteen votes to one) that there had been a breach of both applicants’ rights under Article 8 (and the complaint under Article 12 did not give rise to any separate issue). The Commission referred the applicants’ complaints to the European Court of Human Rights. The court authorized Liberty (the non- governmental civil liberties organization) to submit written comments on the case. In its submission Liberty contended that over the last decade there had been a clear trend in Council of Europe member-states towards giving full legal recognition to gender re-assignment. Liberty’s studies revealed that of thirty-seven states, only four (including the UK) did not permit amendments to a person’s birth certificate to reflect the re-assigned sex of that person.

DECISION

Before the court, the applicants argued that British law continued to be based upon a restrictive biological approach to the determination of an individual’s gender. They contended that recent medical research (especially the work of Professor L. J. G. Gooren) demonstrated that the sex of a person’s brain is also a decisive indicator of hidher gender. The government responded that Article 8 does not require member-states to recognize for all legal purposes the new sexual identity of post-operative transsexuals. They noted that in the earlier Rees (1986) and Cossey (1990) judgments the court had granted states a wide margin of appreciation in respect of their positive obligations (under Article 8) towards transsexuals, because of the diversity of approaches fol- lowed by member-states. The views of Professor Gooren were not conclu- sive according to the government. Furthermore, the government did not believe that the applicants had shown that they had suffered any significant detriment in their treatment by the British authorities. The Commission expressed the view that the applicants were subject to a real and continuing risk of intrusive enquiries and obligations to make embarrassing disclosures regarding their former identities. Additionally, in its opinion, the medical profession has reached a consensus that transsexualism is an identifiable

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medical condition (gender dysphoria) in respect of which gender re-assign- ment treatment is ethically permissible.

The Court began by reiterating that under Article 8:

the notion of ‘respect’ is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. In determining whether o r not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see Rees and Cossey . . .). (para. 52)

It noted that in those two earlier transsexual cases it had found no breach of the duty of respect for a person’s private life in the context of the British authorities’ refusals to modify the historical nature of the birth registration system. Regarding the contemporary scientific understanding of transsexu- alism:

In the view of the Court, the applicants have not shown that since the date of adoption of its Cossey judgment in 1990 there have been any findings in the area of medical science which settle conclusively the doubts concerning the causes of the condition of transsexualism. While Professor Gooren’s research into the role of the brain in conditioning transsexualism may be seen as an important contribution to the debate in this area, it cannot be said that his views enjoy the universal support of the medico-scientific profession. Accordingly, the non-acceptance by the authorities of the respondent State for the time being of the sex of the brain as a crucial determinant of gender cannot be criticised as being unreasonable. The Court would add that, as at the time of adop- tion of the Cossey judgment, it still remains established that gender re- assignment surgery does not result in the acquisition of all the biological characteristics of the other sex despite the increased scientific advances in the handling of gender re-assignment procedures. (para. 56)

As for legal developments in the status of post-operative transsexuals, the court was equally cautious:

[it] is not fully satisfied that the legislative trends outlined by amicus suffice to establish the existence of any common European approach to the problems created by the recognition in law of post-operative gender status. In particular, the survey does not indicate that there is as yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law

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such as marriage, filiation, privacy or data protection, or the circum- stances in which a transsexual may be compelled by law to reveal his or her pre-operative gender. (para. 57)

Therefore, the majority of the Court (eleven votes to nine) did not consider that there were sufficient recent scientific or legal developments to depart from its Rees and Cossey decisions. Indeed,

For the Court, it continues to be the case that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States (see X . Y: and 2. v the United Kingdom (1997)). (para. 58)

Nor was the majority satisfied that the applicants had experienced enough detrimental treatment by the British authorities to override the state’s margin of appreciation. In its opinion the situations in which the applicants had to disclose their previous identities were not that frequent and did not impinge to a disproportionate extent on their right to respect for their private lives. Consequently, there was no breach of Article 8. Nevertheless:

the Court cannot but note that despite its statements in the Rees and Cossey cases on the importance of keeping the need for appropriate legal measures in this area under review having regard in particular to scientific and societal developments it would appear that the respon- dent State has not taken any steps to do so. . . . Even if there have been no significant scientific developments since the date of the Cossey judg- ment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States. (para. 60)

As for the alleged violation of Article 12 (which states that ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’) an overwhelming majority of the Court (eighteen votes to two) found that it had not been breached in this case.

The Court recalls that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in

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such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind (see Rees). (para. 66)

Also the Court did not consider that Horsham’s complaint under Article 12 engaged the responsibility of the UK as (1) it related to the recognition by that state of a post-operative transsexual‘s foreign marriage, rather than the domestic legal rules governing marriage within its jurisdiction and (2) the applicant had not provided any evidence that she actually intended to estab- lish her matrimonial home within the UK.

Judges Bernhardt, Thor Vilhjalmsson, Spielmann, Palm, Wildhaber, Makar- czyk and Voicu issued a joint dissenting opinion in which they took a dia- metrically opposite view to the majority on the application of Article 8 in this case. The dissentients considered that, in the light of Liberty’s brief, there had been significant legal developments in the domestic recognition of post-oper- ative transsexuals by member-states since the Rees and Cossey judgments.

These figures in themselves - without needing to go into the varying details of such legislation -demonstrate convincingly that the problems of such transsexuals are being dealt with in a respectful and dignified manner by a large number of Convention countries. We do not believe that the Court need wait until every Contracting party has amended its law in this direction before deciding that Article 8 gives rise to a posi- tive obligation to introduce reform. Bearing in mind that the Conven- tion must be interpreted in the light of modern day conditions, enough has been achieved today in Europe to sustain this argument.

They also felt that there had been scientific progress in the area as the medical profession had recognized gender dysphoria as a medical condition that could be improved by gender re-assignment surgery. Therefore,

It is not a sufficient answer to this important development that the scientific community cannot agree on the explanation of the causes of transsexualism or that surgery cannot - and perhaps will never be able to - lead to a change in the biological sex. Respect for privacy rights should not, as the legislative and societal trends referred to above demonstrate, depend on exact science. . . . It is no longer possible, from the standpoint of Article 8 of the Convention and in a Europe where considerable evolution in the direction of legal recognition is constantly taking place, to justify a system such as that pertaining in the respon- dent State, which treats gender dysphoria as a medical condition, sub- sidises gender re-assignment surgery but then withholds recognition of the consequences of that surgery thereby exposing post-operative transsexuals to the likelihood of recurring distress and humiliation.

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Consequently, the dissentients believed that there had been a breach of the applicants’ rights under Article 8.

COMMENTARY

This is the judgment that I alerted readers of the journal to in my commen- tary upon the last court case involving transsexuals (Mowbray, 1997). Once again we have seen the importance and complexity of transsexuals’ com- plaints under the Convention as the case was adjudged by a Grand Chamber of the Court (which hears only about one third of the cases determined by the court). One may speculate that the close vote on whether there was a breach of the applicants’ right to respect for their private lives indicates the division existing amongst the members of the Court on the extent of states’ duties towards transsexuals and therefore a major reason why the case should have been dealt with by a broadly based Grand Chamber. Whilst the number of (dissenting) judges favouring the according of greater legal recognition and rights to post-operative transsexuals by national legal systems, which grew from three in Rees to eight in Cossey, has now grown to nine in Sheffield and Horsham, a small majority (eleven) is continuing to hold that the existing British legal and administrative response is within the state’s permissible margin of appreciation (i.e. the zone of national discretion).

The judgment will provide fascinating reading for medical professionals as it shows the Court trying to assess the contemporary scientific orthodoxy regarding the condition of transsexualism and the judges reaching divergent views of the legal significance of current medical knowledge. It is certainly unusual for a human rights court to be relying so heavily upon medical theories as a basis for jurisprudential development of the rights of applicants. Barring some profound new scientific discovery regarding the origins and nature of transsexualism, the ability of such persons successfully to demand greater legal protection under Article 8 of the Convention will probably now depend upon the emergence of a more consistent domestic legal response to post-operative transsexuals amongst the forty member-states. The increasingly diverse cul- tural, social and religious composition of the expanding membership of the Council of Europe (e.g. through the recent accession of Russia) means that the achievement of such domestic legal harmonization is a daunting prospect. Hence, the dissentients’ rejection of the need for unanimity in member-states’ legal responses before Article 8 could be invoked to require more extensive positive actions by states to respect the private lives of transsexuals.

Although the British government won this case it must not be complacent about the legal and administrative position of post-operative transsexuals in this country. This is because even the majority of the Court gave a thinly veiled warning that a continuing failure regularly to review whether domestic legal

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and administrative provisions establish a fair balance between the legitimate needs of the community and the appropriate requirements of transsexuals, will make it increasingly difficult for the government to maintain that it is doing enough to respect the latters’ rights under Article 8. Indeed, the British judge, Sir John Freeland, issued a separate concurring opinion in which he stated:

My vote in favour of the finding that there had been no violation of Article 8 of the Convention in these cases was cast after much hesitation and even with some reluctance.. . . In [Rees and Cossey], the second of which was decided as long ago as 1990, the Court had expressed its awareness of the seriousness of the problems facing transsexuals and the distress which they suffer. It had also made clear in both these cases the importance, which it attached to the need for appropriate legal measures in this area to be kept under review. . . . Yet in the present case the Court, contrary to what it could reasonably have expected, was given no ground to suppose that the respondent State had in fact undertaken any action in this respect. . . . I acknowledge that continued inaction on the part of the respondent State, taken together with further developments else- where, could well tilt the balance in the other direction.

Another factor which may have a significant impact on future cases brought by transsexuals under the Convention is the operation of the new full-time court from 1 November 1998. There will be a major change in the membership of the new Court from the old one and the replacement judges may evaluate transsexual claims differently. Consequently, there are interest- ing times ahead for European human rights applicants and their advisers.

Dr Akastair Movbray, LLB, PhD, senior lecturer in kw, School of Law, University of Nottingham, Nottingham NG7 2RD

REFERENCE

Mowbray, A. (1997) ‘Transsexuals and Family Life’. Journal of Forensic Psychiatry 8: 652-7.

LAW REPORTS

Corbett v Corbett [1971] PR 83. Cossey v the United Kingdom [1990] 13 EHRR 622 (European Court of Human

R. v Tun [1983] Q B 1053. Rees v the United Kingdom [I9861 9 EHRR 56 (European Court of Human Rights). X. X and 2. v the United Kingdom [1997] 24 EHRR 143 (European Court of Human

Rights).

Rights).