X, Y and Z v United Kingdom (Case 75/1995/581/667)
| Judgment Date | 22 April 1997 |
R RYSSDAL, PRESIDENT, R BERNHARDT, THÓR VILHJÁLMSSON, P MATSCHER, L-E PETTITI, C RUSSO, A SPIELMANN, J DE MEYER, N VALTICOS, I FOIGHEL, SIR JOHN FREELAND, AB BAKA, MA LOPES ROCHA, K MAKARCZYK, D GOTCHEV, J JUNGWIERT, P KURIS, U LOMUS, E LEVITS AND J CASADEVALL, JUDGES
Registration of birth – mother living with female-to-male transsexual – mother giving birth to child by artificial insemination by donor – transsexual refused permission to be registered as father of child – whether this refusal was a violation of the transsexual's right to respect for his private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The applicants were X, a female-to-male transsexual; Y, a woman, and Z, a child born in 1995 to Y as a result of artificial insemination by donor ("AID"). X was born in 1955 with a female body but in 1975 he started hormone treatment and to live and work as a man. In 1979 he began living with Y and that year underwent gender reassignment surgery.
X and Y sought AID. A hospital agreed to provide this treatment. X was asked to acknowledge himself to be the father of the child within the meaning of the Human Fertilization and Embryology Act 1990. Y was impregnated with sperm from an anonymous donor and as a result Z was born.
X and Y sought to register Z's birth in their joint names but X was not permitted to be registered as the child's father.
The applicants complained to the European Court of Human Rights that they were denied respect for their family and private life as a result of the lack of recognition of X's role as father of Z, contrary to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and that the resulting position in which they were placed was discriminatory, in violation of Articles 8 and 14 taken together.
Held – (1) The notion of "family life" in Article 8 of the Convention was not confined solely to families based on marriage and might encompass other de facto relationships. When deciding whether a relationship amounted to "family life" factors such as whether the couple lived together, the length of their relationship, and whether they had demonstrated their commitment to each other by having children or by any other means. On the facts of the present case de facto family ties linked the three applicants and it
followed that Article 8 was applicable.
(2) (Judges Casadevall, Russo, Makarczyk, Thór Vilhjálmsson, Foighel and Gotchev dissenting) There was no common European standard with regard to the granting of parental rights to transsexuals and, generally speaking, the law appeared to be in a transitional stage. The United Kingdom must, therefore, be granted a wide margin of appreciation. The community as a whole had an interest in maintaining a coherent system of family law which placed the best interests of the child at the forefront. In that respect, while it had not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by artificial insemination by donor in general, it was not clear that it would necessarily be to the advantage of such children. In these circumstances the State might justifiably be cautious in changing the law so as to recognize a female-to-male transsexual as to the father of a child since it was possible that such an amendment might have desirable or unforeseen ramifications for a child in Z's position. As transsexuality raised complex scientific, legal, moral and social issues in respect of which there was no generally shared approach among the contracting States, Article 8 of the Convention could not, in this context, be taken to imply an obligation to recognize as the father of a child a person who was not the father. That being so, the fact that the law of the United Kingdom did not allow special legal recognition of the relationship between X and Z did not amount to a failure to respect family life within the meaning of that provision. It followed that there had been no violation of Article 8.
(3) (Judges Thór Vilhjálmsson, Foighel and Gotchev dissenting) The applicants' complaint of discrimination contrary to Article 14 of the Convention was tantamount to a restatement of the complaint under Article 8. It raised no separate issue. Accordingly, it was not necessary to consider this complaint.
Cases referred to in judgment:B v France[1993] 2 FCR 145.
Corbett v Corbett [1971] P 83; [1970] 2 WLR 1306; [1970] 2 All ER 33.
Cossey v United Kingdom[1993] 2 FCR 97.
Johnston and Others v Ireland (18 December 1986), Series A, No 112.
Keegan v Ireland[1994] 3 FCR 165.
Kerkhoven v Netherlands (Commission decision 15666/89).
Kroon v Netherlands (27 October 1994) Series A, No 297-C
Marckz v Belgium (13 June 1979), Series A, No 31.
P v S and Another (Sex Discrimination)[1997] 2 FCR 180.
Rees v United Kingdom[1993] 2 FCR 49.
R v Tan [1983] QB 1053; [1983] 3 WLR 361; [1983] 2 All ER 12.
X and Y v United Kingdom (Commission decision 9369/81).
Procedure1. The case was referred to the court on 13 September 1995 by the European Commission of Human Rights ("the Commission") within the three-month period laid down by Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (No 21830/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 of the Convention on 6 May 1993 by three British citizens, Mr X, Ms Y and Ms Z.
The Commission's request referred to Articles 44 and 48 of the Convention and to the declaration whereby the United Kingdom recognized the compulsory jurisdiction of the court in accordance with Article 46. Its object was to obtain a decision on the question whether there had been a violation of Articles 8 and 14 of the Convention.
2. In response to the inquiry made pursuant to 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. [Constitution of Chamber.]
4. [Procedure.]
5. On 21 May 1996, the President of the Chamber granted leave to Rights International, a non governmental human rights organization based in New York, to submit written comments (r 37 § 2). These were received on 30 June 1996.
6. In accordance with the decision of the President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 August 1996. The court had held a preparatory meeting beforehand.
There appeared before the court:
(a) for the Government
Ms S Dickson, Foreign and Commonwealth Office, agent.
David Pannick, QC and Rabinder Singh, counsel.
Ms H Jenn, Department of Health, Mr W Jenkins, Office of Population Censuses and Surveys, advisers.
(b) for the Commission
Mr J Mucha, delegate.
(c) for the applicants
Nicholas Blake, counsel.
Mr N Penrose, solicitor.
The court heard addresses by Mr Mucha, Mr Blake and Mr Pannick, and also replies to questions put by several of its members.
7. Following deliberations on 2 September 1996, the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber (r 51 § 1).
8, 9 and 11. [Constitution of Grand Chamber.]
10. Having taken note of the opinions of the Government's agent, the applicant's representatives and the Commission's delegate, the Grand Chamber decided on 25 October 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber (r 38, taken together with r 51 § 6).
As to the facts I. The circumstances of the case12. The applicants are British citizens, resident in Manchester, England.
The first applicant, "X", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns "he", "him" and "his".
Since 1979 he has lived in a permanent and stable union with the second applicant, "Y", a woman born in 1959. The third applicant, "Z", was born in 1992 to the second applicant as a result of artificial insemination by donor ("AID"). Y has subsequently given birth to a second child by the same method.
13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to "masculine" roles of behaviour.
This discrepancy caused him to suffer suicidal depression during adolescence.
In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing.
14. In 1990, X and Y applied through their general practitioner ("GP") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused.
15. They appealed, making representations which included reference to a research study in which it was reported that in a study of 37 children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect ("Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents", R Green, American Journal of Psychiatry, vol 135, pp 692-697, 1978).
In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertilization and Embryology Act 1990 (see para 21 below).
16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992.
17. In February 1992, X...
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