Sheffield and Horsham v UK
| Judgment Date | 30 July 1998 |
Privacy – Respect for private life – Transsexuals – State’s refusal to recognise in law post-operative transsexuals’ new gender status – Determination of sex according to biological criteria prejudicial to transsexuals – Whether in circumstances respect for private life imposing positive obligation on state to modify system for determining gender – Convention for the Protection for Human Rights and Fundamental Freedoms, art 8.
Marriage – Transsexuals – Biological determination of sex for purposes of marriage – National law’s refusal to allow male-to-female transsexual and male contract valid marriage – Whether state’s refusal violating right to marriage – Convention for the Protection for Human Rights and Fundamental Freedoms, art 12.
The applicants, who had both been registered at birth as being male, were male-to-female post-operative transsexuals. They had changed their names by deed poll and such changes were recorded on their passports and driving licences. However, certain documentation, such as birth certificates and social security, national insurance, employment and police records, continued to record their pre-operative genders and names and certain situations, such as court appearances and insurance applications, required the disclosure of their pre-operative history, which caused the applicants embarrassment and prejudice. Furthermore, the second applicant contended that she was precluded from contracting a valid marriage with her male partner because her country of domicile (England and Wales) did not recognise such marriages wherever contracted. In separate applications the applicants complained to the European Commission of Human Rights: (i) that the system of determining sex according to biological criteria alone and the failure to recognise in law that they were of the female sex constituted an interference with their rights to respect for their private lives guaranteed under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and (ii) the refusal to allow a male-to-female post-operative transsexual, who was still considered as male for legal purposes, to validly contract a marriage with a man violated the right to marriage guaranteed under art 12 of the convention. In both cases
the Commission expressed the opinion that there had been a violation of art 8 (15 votes to 1) and that no separate issues arose under art 12. It referred the cases to the European Court of Human Rights which considered both cases simultaneously.
Held – (1) (By a majority) The notion of ‘respect’ for private life was not clear-cut and in determining whether it imposed a positive obligation in a particular situation regard was to be had to the fair balance to be struck between the general interests of the community and the interests of the individual. The essence of the instant case was the continuing insistence by the national authorities on the determination of gender according to biological criteria alone and the immutability of the gender information once it was entered on the register of births and whether respect for the applicants’ private lives imposed a positive obligation to alter that system, which operated to the detriment of transsexuals. The state was afforded a margin of appreciation to defend its refusal to recognise in law a post-operative transsexual’s sexual identity which it continued to do on general interests grounds, the register of births being a historical record of fact and such defence had been accepted in previous cases. Transsexualism raised complex, scientific, legal, moral and social issues in respect of which there was no generally shared approach among contracting states and scientific and legal developments were not sufficiently persuasive to tilt the balance away from the defence of public interest considerations in favour of the need to take steps to safeguard the individual interests of transsexuals. Furthermore, the prejudice suffered by the applicants through being obliged to disclose pre-operative gender in certain situations was not of sufficient seriousness as to override the margin of appreciation. The situations highlighted by the applicants to illustrate detriment were infrequent and disclosure of their pre-operative gender in such situations was justified. Moreover, the authorities had sought to minimise intrusive inquiries as to the applicants’ pre-operative status. Accordingly the notion of respect in the instant case did not impose a positive obligation to recognise in law the applicants’ post-operative gender. It followed that there had been no violation of art 8.
(2) (By a majority) The right to marry guaranteed by art 12 referred to the traditional marriage between persons of opposite biological sex and the exercise of the right was subject to the national laws of the contracting states. While such national laws could impose restrictions that impaired the very essence of the right, the legal requirement that parties to a marriage be of opposite biological sex did not have such an effect. The attachment to the traditional concept of marriage which underpinned art 12 provided sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage, such being a matter within the power of the contracting state to regulate the exercise of the right to marry by national law. Accordingly a male-to-female transsexual and a
male could not claim a right under the convention to marry. It followed that there was no violation of art 12.
Per curiam Despite statements in Rees v UK[1993] 2 FCR 49 and Cossey v UK[1993] 2 FCR 97 about the importance of keeping the need for appropriate legal measures in the area of transsexualism under review having regard in particular to scientific and societal developments no such measures have been taken. Notwithstanding the lack of significant scientific developments since Cossey v UK there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter and developments in these areas are to be kept under review.
Cases citedB v France[1993] 2 FCR 145, (1992) 16 EHRR 1, ECt HR.
Chessington World of Adventures Ltd v Reed [1998] ICR 97, EAT.
Corbett v Corbett [1970] P 83, [1970] 2 All ER 33, [1970] 2 WLR 1036.
Cossey v UK[1993] 2 FCR 97, (1990) 13 EHRR 622, ECt HR.
Dudgeon v UK (1981) 4 EHRR 149, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, ECt HR.
P v S (sex discrimination) [1997] 2 FCR 180; sub nom P v S and Cornwall CC [1996] All ER (EC) 397, ECJ.
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.
Stubbings v UK[1997] 3 FCR 157, (1996) 23 EHRR 213, ECt HR.
X, Y and Z v UK[1997] 3 FCR 341, (1997) 24 EHRR 143, ECt HR.
ApplicationIn two applications (nos 22885/93 and 23390/94) to the European Commission of Human Rights on 4 August 1993, Kristina Sheffield and Rachel Horsham complained that the United Kingdom’s refusal to give legal recognition to their female status following gender reassignment surgery violated arts 8 and 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969). The Commission declared the applications admissible on 19 January 1996 and on 4 March 1997 referred the matter as two separate cases to the European Court of Human Rights. The facts are set out in the judgment of the court.
Procedure1. The case was referred to the court as two separate cases (Sheffield v UK and Horsham v UK) by the European Commission of Human Rights on 4 March 1997 within the three-month period laid down by arts 32(1) and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Sheffield v UK originated in an application (no 22885/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under art 25 of the convention by Miss Kristina Sheffield, a British citizen, on 4 August 1993. Horsham v UK originated in an
application (no 23390/94) lodged against the same contracting state on the same date by Miss Rachel Horsham, also a British national.
The Commission’s requests referred to arts 44 and 48 of the convention and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the court in accordance with art 46. The object of the requests was to obtain a decision as to whether the facts of the cases disclosed a breach by the respondent state of its obligations under arts 8, 12, 13 and 14 of the convention.
2. In response to the inquiry made in accordance with r 33(3)(d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (r 30).
3. On 19 March 1997 the then President of the Court, Mr R Ryssdal, decided, under r 21(7) and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider both cases simultaneously, without prejudice to the joinder of the cases at a later stage.
4. The Chamber to be constituted for that purpose (r 21(7)) included ex officio Sir John Freeland, the elected judge of British nationality (art 43 of the convention), and Mr Bernhardt, the then Vice-President of the Court (r 21(4)(b)). On 19 March 1997, in the presence of the registrar, the President of the Court drew by lot the names of the other seven members, namely Mr J De Meyer, Mr N Valticos, Mrs E Palm, Mr AN Loizou, Mr J Makarczyk, Mr K Jungwiert and Mr T Pantiru (art 43 in fine of the convention and r 21(5)).
5. As President of the Chamber (r 21(6)), Mr Bernhardt, acting through the registrar, consulted the agent of the United Kingdom Government, the applicants’ lawyer and the delegate of the Commission on the organisation of the proceedings (rr 37(1) and 38). Pursuant to the order made in consequence, the registrar received the government’s and...
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