Cossey v United Kingdom (16/1989/176/232)
| Judgment Date | 27 September 1990 |
255
EctHR
[1993] 2 FCR 97
Cossey v United Kingdom (16/1989/176/232)
EUROPEAN COURT OF HUMAN RIGHTS
27 SEPEMBER 1990
RYSSDAL (PRESIDENT), CREMONA, THÓR VILHÁLMSSON, BINDSCHEDLER-ROBERT, GÖLDCÜKLÜ, MATSCHER, PETTITI, WALSH, VINCENT EVANS, MACDONALD, RUSSO, BERNHARDT, SPIELMANN, MARTENS, PALM, FOIGHEL, PEKKANEN, AND MORENILLA RODRIGUEZ, JJ
Sex change – man to woman – anatomically and psychologically female – successful career as female fashion model – Registrar General refused marriage – subsequent ceremony to different man declared a nullity in English law – refused change to her birth certificate – whether an infringement of her right to privacy and to marry.
The applicant realized at the age of 15 that he was female although he had male genitalia. He changed his christian name to "Caroline" by deed poll and began to dress as a woman. After a sex change operation, a medical report in 1984 noted that she lived a full life as a female and had a female's genitalia and was able to have sexual intercourse with a man. She obtained a passport as a female. She had a successful career as a female fashion model. She wanted to marry L but was told by the Registrar General that her marriage would be void in English law as she was still a male despite her anatomical and psychological state. She was refused a change to her birth certificate. She purported to marry a Mr X by a jewish ceremony but the marriage was declared void as between two males.
On the applicant's argument that her rights to respect for her private and family life under Article 8 and to marry and found a family according to national law under Article 12 had been infringed.
Held (by a majority of 10–8) refusing the applicant on both grounds:
(1) Whilst searches were open to the public and a copy of entries available on request, for a search to be efficacious it needed prior knowledge of the name, date and place of birth of the individual. Even though birth certificates could be requested for various purposes, there was no legal requirement to produce the birth certificate and so there was no breach of the applicant's privacy. The facts were not distinguishable from Rees (even though unlike Rees the applicant had someone who wished to marry her) and although the court was not bound by its earlier decisions, certainty was desirable and departures
were only warranted where there had been societal changes.
(2) The refusal to change the applicant's birth certificate was not an infringement of her privacy under Article 8 as secrecy was undesirable and a change would not mean the acquisition of all the characteristics of the other sex. It was merely a record of historical fact. It would deprive third parties of information which they were entitled to. Annotation could only indicate a later change and would not accordingly preserve the integrity of her private life.
(3) (By a majority of 14 to 4), there was no violation of Article l2 as this Article's purpose was to protect marriage as the basis for a family. Whilst the applicant could not marry either a woman or a man, her inability to marry a woman did not stem from a legal impediment.
Per Bindschedler-Robert and Russo, (dissenting): the UK had not taken all the steps to recognize the change in a person's identity and a balance could have been reached between the public interest and the respect to the individual's private life without upsetting the present system of recording civil status.
Per Martens (dissenting): (1) Medical science is used by transsexuals as a rebirth. The transsexual condition involves an urge for full legal recognition. Human dignity and freedom imply that a man should be free to change as best befits his personality and the transsexual is merely asking the law to recognize a fait accompli he has created.
(2) The argument that protection of marriage as a basis for a family cannot be of merit as (i) it would not be permissible for a member state to rule that only those who could procreate can marry (ii) the concept of family life has become more open since the Marckx decision.
Per Palm, Foighel and Pekkanen (dissenting): (1) Disclosure of the birth certificate violated Article 8 in so far as it necessarily obliged the applicant to disclose her personal circumstances.
(2) In respect of Article 12, it would be impossible for the applicant to marry a woman both psychologically and physically and she had without a change in the law no possibility of marrying a man. A transsexual was neither a man nor a woman but somewhere in between. In that case a choice needed to be made and the only humane solution was to respect the objective fact that he had had the course of treatment based on his conviction that he was a woman and was socially accepted as such.
Cases referred to in judgment: Decisions of the United Kingdom courts Decisions of the European Court of Human RightsCorbett v Corbett (Otherwise Ashley) [1971] P 83; [1970] 2 WLR 1306; [1970] 2 All ER 33.
Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130.
R v Tan and Others [1983] QB 1053; [1983] 3 WLR 361; [1983] 2 All ER 12.
Social Security Decisions (1980) Cases R (P) 1 and R (P) 2.
White v British Sugar Corporation Ltd [1977] IRLR 121.
Inze Case (28 October 1987) Series A, no 126.
Johnston and Others v Ireland (18 December 1986), Series A no 112.
Lithgow and Others v UK (8 July 1986) Series A no 102.
Rees v United Kingdom[1993] 2 FCR 49; (17 October 1986) Series A no 106.
Note by RegistrarThe case is numbered 16/1989/176/232. The first number is the case's position in the list of Cases referred to the court in the relevant year (second number). The last two numbers indicate the case's position in 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.
There appeared before the court:
For the Government:Mr N Parker, Assistant Legal Adviser, Foreign and Commonwealth Office.
Mr N Bratza, QC.
Mr A Inglese, Home Office.
Mr W Jenkins, General Register Office.
For the Commission:Mr E Busutill, delegate.
For the applicant:Mr D Pannick, barrister.
Mr H Brandman, solicitor.
Procedure1. The case was referred to the court on 4 July 1989 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government") and on 13 July 1989 by the European Commission of Human Rights ("the Commission"), within the three-month period laid down in Article 31 § 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no 10843/84) against the United Kingdom lodged with the Commission under Article 25 by Miss Caroline Cossey, a British citizen, on 24 February 1984.
The Government's application referred to Article 48 and the Commission's request to Articles 44 and 48 and the declaration whereby the United Kingdom recognized the compulsory jurisdiction of the court (Article 46). The object of the application and of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 12 and also, in the case of the request, Article 8 of the Convention.
2. In response to the inquiry made in accordance with r 33, § 3 (d) of the Rules of Court, the applicant – who will be referred to in this judgment in the feminine – stated that she wished to take part in the proceedings and designated the lawyer who would represent her (r 30).
3. The chamber to be constituted included ex officio Sir Vincent Evans, the
elected Judge of British nationality (Article 43 of the Convention), and Mr R Ryssdal, the President of the Court (r 21(3)(b)). On 23 August 1989 the President drew by lot, in the presence of the registrar, the names of the five other members, namely Mr F Matscher, Mr B Walsh, Mr J De Meyer, Mrs E Palm and Mr I Foighel (Article 43 in fine of the Convention and r 21 § 4). Subsequently, Mr N Valticos, substitute Judge, replaced Mr De Meyer, who had withdrawn (rr 22(1) and 24(2)).
4. Mr Ryssdal assumed the office of President of the Chamber (r 21(5)), and through the registrar, consulted the agent of the Government, the delegate of the Commission and the representative of the applicant on the need for a written procedure (r 37(1)). In accordance with the order made in consequence, the registry received, on 19 October 1989, the applicant's memorial and, on 20 October 1989, the Government's.
By letter of 16 January 1990, the Secretary to the Commission informed the registrar that the delegate would submit his observations at the hearing.
5. Having consulted, through the registrar, those who would be appearing before the court, the President directed on 9 January 1990 that the oral proceedings should open on 24 April 1990 (r 38).
6. On 21 February 1990 the Chamber decided, pursuant to r 51, to relinquish jurisdiction forthwith in favour of the plenary court.
7. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The court had held a preparatory meeting beforehand.
The court heard addresses by Mr Bratza for the Government, by Mr Busutill for the Commission and by Mr Pannick for the applicant, as well as replies to questions put by the court and by two of its members individually.
8. Various documents were filed by the applicant on 27 and 30 April and 22 May and by the Government on 5 June including further particulars of the former's claim under Article 50 and the latter's comments thereon.
As to the facts I. The particular circumstances of the case9. The applicant, who is a British citizen, was born in 1954 and registered in the birth registrar as a male, under the male christian names of Barry Kenneth.
10. At the age of 13 the applicant realized that she was unlike other boys and, by...
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