Rees v United Kingdom (2/1985/88/135)
| Judgment Date | 17 October 1986 |
RYSSDAL (PRESIDENT), THÓR VILHJÁLMSSON, BINDSCHEDLER-ROBERT, LAGERGREN, GÖLCÜKLÜ, MATSCHER, PINHEIRO FARINHA, PETTITI, WALSH, VINCENT EVANS, RUSSO, BERNHARDT, SPIELMANN AND DONNER, JJ
Sex change – woman to man – psychologically male – no right to marriage to woman in English law – refused change to her birth certificate – whether an infringement of her right to privacy and to marry.
The applicant was born as a female although he always considered himself male. He was treated with methyl testosterone and began to develop secondary male characteristics. He changed his christian name to a male name. After a sex change operation to remove his female characteristics, a medical report noted that he was psychologically male. He was refused a change to his birth certificate.
On the applicant's argument that his rights to respect for his private and family life under Article 8 and to marry and found a family according to national laws under Article 12 had been infringed.
Held – refusing the applicant on both grounds, that there was no violation:
(1) The refusal to change the applicant's birth certificate was not an infringement of his privacy under Article 8. Annotation could not preserve the integrity of his private life as it would reveal a change of sexual identity. Keeping the applicant's sex change secret would deprive third parties of information which they were entitled to and if adopted would restrict the function of government.
(2) The need for appropriate legal measures must be kept under review having regard particularly to the scientific and societal changes.
(3) Article 12 refers to a traditional marriage between parties of opposite biological sex. The Article's purpose was to protect marriage as the basis for a family. The provision is subject to national laws and the court would only intervene where it restricts or reduces the right so that its essence is impaired.
Per Bindschedler-Robert, Russo and Gersing (dissenting)
Annotation could be effected without interference with the applicant's right to privacy if the main register could be annotated and a short certificate could be produced for use by the applicant only disclosing the new status.
Cases referred to in judgment:Decisions of United Kingdom courts
Corbett 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.
Decisions of European Court of Human RightsAbdulaziz, Cabales and Balkandali Case (28 May 1985) Series A, no 94.
Dudgeon Case (22 October 1981) Series A, no 45.
James and Others Case (21 February 1986) Series A, no 98.
Marckx v Belgium (13 June 1979) Series A, no 31.
Sporrong and Lönnroth Case (23 Sepember 1982) Series A, no 52.
Note by RegistrarThe case is numbered 2/1985/88/135. The second figure indicates the year in which the case was referred to the court and the first figure is its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the court since its creation.
There appeared before the court:For the Government:
Mr M Eaton, Legal Counsellor, Foreign and Commonwealth Office.
Mr N Bratza, barrister.
Mr J Nursaw, Home Office.
Mr P Lucas, Department of Health and Social Security.
Mr W Jenkins, Central Register Office.
For the Commission:Mr B Kiernan, delegate.
For the applicant:Mr N Blake, barrister.
Mr D Burgess, solicitor.
PROCEDURE1. The present case was referred to the court by the European Commission of Human Rights ("the Commission") on 14 March 1985, within the three-month period laid down by Article 32 para 1 and Article 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The
case originated in an application (no 9532/81) against the United Kingdom of Great Britain and Northern Ireland, lodged with the Commission in 1979 by a British citizen, Mr Mark Rees, under Article 25 of the Convention.
2. The Commission's request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognized the compulsory jurisdiction of the court (Article 46). The object of the request was to obtain a decision by the court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 12 of the Convention.
3. In response to the inquiry made in accordance with Rule 33 para 3(d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings before the court and designated the lawyers who would represent him (Rule 30).
4. The Chamber of seven Judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected Judge of British nationality (Article 43 of the Convention), and Mr G Wiarda, the then President of the court (Rule 21 para 3(b) of the Rules of Court). On 27 March 1985, the President drew by lot, in the presence of the registrar, the names of the five other members, namely Mrs D Bindschedler-Robert, Mr G Lagergren, Mr R Ryssdal, Mr C Russo and Mr R Bernhardt (Article 43 in fine of the Convention and Rule 21 para 4).
5. Mr Wiarda assumed the office of President of the Chamber (Rule 21 para 5). He ascertained, through the registrar, the views of the agent of the United Kingdom Government ("the Government"), the delegate of the Commission and the lawyers for the applicant regarding the need for a written procedure (Rule 37 para 1). Thereafter, in accordance with the orders and directions of the President of the Chamber, the following documents were lodged at the registry:
– on 19 August 1985, the memorial of the Government;
– on 26 August 1985, the memorial of the applicant;
– on 10 March 1986, various documents requested from the Commission.
By letter received on 13 November 1985, the Secretary to the Commission informed the registrar that the delegate did not wish to reply in writing to these memorials.
6. After consulting, through the registrar, the agent of the Government, the Commission's delegate and the applicant's representatives, the President of the Chamber directed on 6 January 1986 that the oral proceedings should open on 18 March 1986 (Rule 38).
7. On 24 January 1986, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary court (Rule 50), under the presidency of Mr Wiarda's successor, Mr Ryssdal.
8. On 21 February and on 13 March 1986, respectively, the Government and the applicant submitted, of their own motion, a number of further documents.
9. The hearings were held in public at the Human Rights Building, Strasbourg, on 18 March 1986. Immediately before they opened, the court had held a preparatory meeting.
10. The court heard addresses by Mr Bratza for the Government, by Mr Kiernan
for the Commission and by Mr Blake for the applicant, as well as their replies to its questions. At the hearing the Government and the applicant filed a number of other documents.
AS TO THE FACTS I. The particular circumstances of the case11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England.
12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognized condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics.
13. In Sepember 1971, the applicant – who will henceforth be referred to in the masculine – changed his name to Brendan Mark Rees and subsequently, in Sepember 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix "Mr" was, however, at that time denied to him.
14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral mastectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service.
15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member's Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail.
16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under s 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the register". In support of his request, the applicant submitted a medical report by a Dr CN Armstrong. The report stated that, in Dr Armstrong's opinion, of the four criteria of sex – namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as...
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