I v UK
| Judgment Date | 11 July 2002 |
Human rights – Privacy – Private life – Marriage – Transsexual – Transsexual unable to change gender on birth certificate under domestic law – Transsexual unable to marry person of same sex as that registered on transsexual’s birth certificate – 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 wished to apply for a nursing course, but was not admitted as she refused to present her birth certificate. In 1993 and 1994, the applicant wrote letters to various institutions requesting amendments to the relevant legislation to allow the recognition of the transsexual’s changed gender. Thereafter she wished to apply for various other posts for which she was required to present her birth certificate. She applied to the European Court of Human Rights complaining that in the United Kingdom there was no legal recognition of her post-operative sex 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 a male prevented her from entering a marriage in violation of 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. Exceptions were already made to the historic basis of the birth register system, namely, in the case of legitimisation or adoptions, where there was a possibility of issuing updated certificates to reflect a change in status after birth. To make a further exception in the case of transsexuals would not pose the risk of overturning the entire system. Though detriment might be suffered by third parties who might be unable to obtain access to the original entries and to complications occurring in the field of family and succession law there was no real prospect of prejudice arising if changes were made to the current system. Moreover, any difficulties 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. No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals. Society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and work in accordance with the sexual identity chosen by them at great personal cost. It followed that the United Kingdom government could not 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.
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.
Goodwin v UK[2002] 2 FCR 577, ECHR.
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 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), ECHR.
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, I, who was a United Kingdom National by a case originated in an application (no 25680/94) against the United Kingdom lodged, on 6 April 1994, 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. 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.
Michael Sternberg and David Williams (instructed by Gambrills) 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 25680/94) 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 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention) by a United Kingdom national, I (the applicant), on 6 April 1994.
2. The applicant, who had been granted legal aid, was represented by Gambrills Solicitors, lawyers practising in Folkestone. The United Kingdom Government (the government) were represented by their agent, Mr D Walton. The President of the Grand Chamber acceded to the applicant’s request not to have her name disclosed (r 47(3) of the Rules of Court).
3. The applicant alleged violations of arts 8, 12 and 14 of the Convention in respect of the legal status of transsexuals in the United Kingdom.
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 provisions of art 27(2) and (3) of the Convention and r 24 of the Rules of Court. The President of the court decided that in the interests of the proper administration of justice, the case should be assigned to the Grand Chamber that had been constituted to hear the case of Goodwin v UK[2002] 2 FCR 577 (rr 24, 43(2) and 71).
9. The applicant and the government each filed a memorial on the merits. In addition, third-party comments were received from Liberty, which had been given leave by the President to intervene in the written procedure (art 36(2) of the Convention and r 61(3)).
10. A hearing in this case and the case of Goodwin v UK took place in public in the Human Rights Building, Strasbourg, on 20 March 2002 (r 59(2)).
There appeared before the court: (a) for the government Mr D Walton, agent, Mr Rabinder Singh, counsel, Mr J Strachan, counsel, Mr C Lloyd, Ms A Powick, Ms S Eisa, advisers; (b) for the applicant Mr M Steinberg, counsel, Mr D Williams, counsel, Ms H Derry, solicitor. The...
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