European Court of Human Rights Upholds Transsexuals’ Rights to Amended Birth Certificates and Different-sex Marriages

On July 11, in Christine Goodwin v. United Kingdom (Application No. 28957/95) and I. v. United Kingdom (Application No. 25680/94), a Grand Chamber of 17 judges of the European Court of Human Rights held unanimously that the United Kingdom’s refusal to permit post-operative transsexuals to have their birth certificates amended to reflect their reassigned sex, and to contract different-sex marriages in their reassigned sex, violated Articles 8 (right to respect for private life) and 12 (right to marry) of the European Convention on Human Rights. The two judgments (Goodwin and I. are identical except for the facts) represent a huge victory for the European transsexual rights movement after a struggle of more than three decades against the U.K.’s intransigence, and will apply to 44 European Convention countries with a combined population of over 800,000,000. British transsexual applicants had previously lost before the Court on these issues in Mark Rees v. U.K. (1986) (12–3 on Article 8, 15–0 on Article 12), Caroline Cossey v. U.K. (1990) (10–8 on Article 8, 14–4 on Article 12), and Kristina Sheffield & Rachel Horsham v. U.K. (1998) (11–9 on Article 8, 18–2 on Article 12). (The court’s opinion is available on its website.) The Court framed the issue under Article 8 of the Convention as whether the lack of legal recognition given to the applicant’s gender reassignment breached the U.K.’s “positive obligation” to ensure respect for her private life. Having found no such breach three times, most recently in 1998, the Court observed both that it would not depart from its precedents “without good reason” and that it would “look at the situation within and outside the [U.K.] to assess ‘in the light of present-day conditions’ what is now the appropriate interpretation and application of the Convention,” which it has described as a “living instrument.” The Court then departed from its determination in 1998 that the position in the U.K. (transsexuals are issued new passports and driver’s licenses but cannot have their birth certificates amended) did not give rise to “detriment of sufficient seriousness” as to override the U.K.’s “margin of appreciation.” Instead, the Court found that “[t]he stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.“ Morever, “[w]here a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations[,] and indeed permits the artificial insemination of a woman living with a female-to-male transsexual , it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.” The Court rejected all of the U.K.’s arguments for maintaining the current system. First, “the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance.” It is sufficient that gender identity disorder is an internationally recognised medical condition, and that, “given the numerous and painful [surgical] interventions involved and the level of commitment and conviction required to achieve a change in social gender role,” there is nothing “arbitrary or capricious” about a transsexual person’s decision to undergo gender reassignment. “It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals .” Second, the Court departed from its finding in 1998 that there was insufficient European consensus on the appropriate legal response to gender reassignment. “The Court attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed [there is still no European consensus as to the details], than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals [the European and international trend is to grant legal recognition, even if the details may vary].” Third, the historical nature of the U.K.’s birth register system was no longer decisive, given the existing exceptions in relation to legitimization or adoption of children, the small number of transsexuals, the absence of concrete evidence of likely prejudice to third parties, and the U.K.’s own proposals to reform the system. The Court found a violation of Article 8, concluding that the U.K. (which had been chastised by the Court in 1998 for failing to keep this area under review but still had no plans to change the law four years later) “can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right [consequences in relation to access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance].... In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.” The Court also found a violation of Article 12 (“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”), departing from its statement in 1998 that “the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex” and that “Article 12 is mainly concerned to protect marriage as the basis of the family.” Instead, the Court observed that, “[r]eviewing the situation in 2002, Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.” Similarly, “[t]he Court is not persuaded that at the date of this case it can still be assumed that these terms [‘men’ and ‘women’ in Article 12] must refer to a determination of gender by purely biological criteria . There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women [from the right to marry] .” Lesbian/Gay Law Notes September 2002 131