Goodwin v United Kingdom
| Judgment Date | 11 July 2002 |
Human rights – Privacy – Private life – Marriage – Transsexual – Male to female transsexual – Transsexual registered as male on birth certificate – Domestic law refusing to treat transsexual as female for national insurance purposes – Domestic law not permitting transsexual to marry her male partner – Whether transsexual’s Convention rights breached – Human Rights Act 1998, Sch 1, Pt 1, arts 8, 12.
The applicant was a post-operative male to female transsexual. She felt that she had been dismissed from employment because she was a transsexual so when she started work for a new employer and was required to provide her national insurance (NI) number she requested the allocation of a new number from the Department of Social Security (DSS) so that it would not be possible for her new employers to find out about her previous employers and obtain information from them. That request was rejected. The DSS Contributions Agency informed the applicant that she would be ineligible for a state pension at the age of 60, which was the age of entitlement for women and that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men. The applicant therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. Although the applicant’s files at the DSS were marked ‘sensitive’ to ensure that only an employee of a particular grade had access to her files, her record continued to state as sex as a male. The applicant was also concerned that she had had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate since it recorded that she was male. She applied to the European Court of Human Rights complaining that in the United Kingdom there was no legal recognition of her changed gender and that that was a breach of her right to respect for her private life under art 8 of the Convention. She also alleged that the restriction in United Kingdom law on her marrying the man with whom she enjoyed a full physical relationship breached her rights under art 12 of the Convention. The government submitted that recognition of the applicant’s new gender identity for legal purposes was a matter within the margin of appreciation left to member states under the Convention.
Held – The unsatisfactory situation in which post-operative transsexuals lived in an intermediate zone as not quite one gender or the other was no longer sustainable. That was not to underestimate the difficulties posed or the important repercussions which any major change in the system would have, not only in the field of birth registration but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance, but those problems were far from insuperable. Nor would allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, cause any injustice to others in the national insurance and state pensions systems. In any event, society might reasonably be able to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. It followed that the United Kingdom government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there were no significant factors of public interest to weigh against the interest of the individual applicant in obtaining legal recognition of her gender re-assignment, the fair balance that was inherent in the Convention tilted decisively in the applicant’s favour and there had, accordingly, been a failure to respect her right to private life in breach of art 8 of the Convention. Furthermore, allocation of sex in national law to that registered at birth was a limitation impairing the very essence of the right to marry contained in art 12. With regard to the fundamental right of a man and woman to marry in that article, the term man and woman did not have to refer to a determination of gender by purely biological criteria. The test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There were other important factors, such as the acceptance of the condition of gender identity disorder by the medical professions and health authorities within the contracting states, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceived that they properly belonged and the assumption by the transsexual of the social role of the assigned gender. It was also to be noted that art 9 of the Charter of Fundamental Rights of the European Union departed from the wording of art 12 of the Convention in removing the reference to men and women. Therefore, there had been a breach of art 12 in the instant case.
Bellinger v Bellinger[2001] 3 FCR 1 considered.
Cases referred to in judgmentA-G v Otahuhu Family Court [1995] 1 NZLR 603, NZ HC.
Aksoy v Turkey (1996) 1 BHRC 625, ECt HR.
B v France[1993] 2 FCR 145, [1992] 2 FLR 249, ECt HR.
Barberà v Spain (App nos 10588/83, 10589/83, 10590/83) (13 June 1994, unreported), ECt HR.
Bellinger v Bellinger[2001] EWCA Civ 1140, [2001] 3 FCR 1, [2002] Fam 150, [2002] 1 All ER 311, [2002] 2 WLR 411, [2001] 2 FLR 1048.
Cakc v Turkey [1999] ECHR 23657/94, ECt HR.
Chapman v UK (2001) 10 BHRC 48, ECt HR.
Chessington World of Adventures Ltd v Reed, ex p News Group Newspapers Ltd [1998] IRLR 56.
Corbett v Corbett (orse Ashley) [1971] P 83, [1970] 2 All ER 33, [1970] 2 WLR 1306.
Cossey v UK[1993] 2 FCR 97, (1990) 13 EHRR 622, ECt HR.
Dudgeon v UK (1981) 4 EHRR 149, [1981] ECHR 7525/76, ECt HR.
F v Switzerland (1987) 10 EHRR 411, [1987] ECHR 11329/85, ECt HR.
I v UK[2002] 2 FCR 613, ECt HR.
James v UK (1986) 8 EHRR 123, [1986] ECHR 8793/79, ECt HR.
Kevin: validity of marriage of transexual, Re [2001] Fam CA 1074, Aust FC.
Mikulic v Croatia[2002] 1 FCR 720, ECt HR.
P v S (Case C-13/94) [1996] All ER (EC) 397, ECJ.
Pretty v UK[2002] 2 FCR 97, ECt HR.
R v Matthews (28 October 1996, unreported), Reading Crown Ct.
R v Secretary of State for Social Security, ex p Equal Opportunities Commission Case C-9/91 [1992] 3 All ER 577, [1992] ECR I-4297, ECJ.
R v Secretary of State for Social Services, ex p Hooker (1993, unreported), CA.
R v Tan [1983] QB 1053, [1983] 2 All ER 12, [1983] 3 WLR 361, CA.
Rees v UK[1993] 2 FCR 49, (1986) 9 EHRR 56, ECt HR.
Sheffield and Horsham v UK[1998] 3 FCR 141, [1998] 2 FLR 928, ECt HR.
Stafford v UK [2002] All ER (D) 422 (May), ECt HR.
Tyrer v UK (1978) 2 EHRR 1, [1978] ECHR 5856/72, ECt HR.
X, Y and Z v UK[1997] 3 FCR 341, ECt HR.
ApplicationThe applicant, Christine Goodwin, who was a United Kingdom National by a case originated in an application (no 28957/95) against the United Kingdom lodged, on 5 June 1995, with the European Commission of Human Rights under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 alleged violations of arts 8 and 12 of the Convention (as set out in Sch 1 to the Human Rights Act 1998) in respect of the legal status of transsexuals in the United Kingdom and particularly their treatment in the sphere of employment, social security, pensions and marriage. The application was declared admissible by the commission on 1 December 1997 and transmitted to the court on 1 November 1999. The application was allocated to the Third Section which relinquished its jurisdiction in favour of the Grand Chamber. The facts are set out in the judgment of the court.
Laura Cox QC and Tim Eicke (instructed by Bindman & Partners) for the applicant.
Rabinder Singh QC and James Strachan (instructed by the Foreign and Commonwealth Office) for the government of the United Kingdom.
Procedure1. The case originated in an application (no 28957/95) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (the commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 by a United Kingdom national, Ms Christine Goodwin (the applicant), on 5 June 1995.
2. The applicant, who had been granted legal aid, was represented by Bindman & Partners, solicitors practising in London. The United Kingdom Government (the government) were represented by their agent, Mr D Walton of the Foreign and Commonwealth Office, London.
3. The applicant alleged violations of arts 8, 12, 13 and 14 of the Convention in respect of the legal status of transsexuals in the United Kingdom and particularly their treatment in the sphere of employment, social security, pensions and marriage.
4. The application was declared admissible by the commission on 1 December 1997 and transmitted to the court on 1 November 1999 in accordance with art 5(3), second sentence, of Protocol No 11 to the Convention, the commission not having completed its examination of the case by that date.
5. The application was allocated to the Third Section of the court (r 52(1) of the Rules of Court).
6. The applicant and the government each filed observations on the merits (r 59(1)).
7. On 11 September 2001, a Chamber of that Section, composed of the following judges: Mr J-P Costa, Mr W Fuhrmann, Mr P Kûris, Mrs F Tulkens, Mr K Jungwiert, Sir Nicolas Bratza and Mr K Traja, and also of Mrs S Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (art 30 of the Convention and r 72).
8. The composition of the Grand Chamber was determined according to the...
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