European Court of Human Rights  
Case of Sheffield and Horsham v. the United Kingdom

As to the Facts

1. The Circumstances of the Case
2. Relevant Domestic Law and Practice
3. Proceedings before the Commission
4. Final Submissions to the Court

I. THE CIRCUMSTANCES OF THE CASE

A. The first applicant, Miss Sheffield

12. The first applicant, Miss Kristina Sheffield, is a British citizen, born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender re-assignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved.

13. In 1986 the first applicant began treatment at a gender identity clinic in London and on a date unspecified, successfully underwent sex re-assignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence.

14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender re-assignment surgery and her subsequent change of sex.

15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a pre-condition to surgery being carried out. Following the divorce, the applicant's former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child's interests. The applicant has not seen her daughter since then, a period of some twelve years.

16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States Embassy in London.

17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of GBP 2,000 for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate.

18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry.

19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male.

She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction.

20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender re-assignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State.
  

B. The second applicant, Miss Horsham

21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Dutch citizenship by naturalisation in September 1993.

The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female.

22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender re-assignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam.

23. On 26 June 1992, following earlier refusals, she applied to the British Consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Dutch courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British Consulate issued a new passport to the applicant recording her new name and her sex as female.

24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate.

25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male Partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage wether that marriage "took place in the Netherlands or elsewhere".
  

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Names

26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards etc. The new names are also entered on the electoral roll.
  

B. Marriage and definition of gender in domestic law

27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett (1971 Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan (1983 Queens Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender re-assignment therapy.

Under section 11 (b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Ormrod J).
  

C. Birth certificates

28. Registration of births is governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"). Section 1 (1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.

29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.

30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her "psychological" sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.

31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
  

D. Social security, employment and pensions

32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male to female transsexual will accordingly only be entitled to a State pension at the state retirement age of 65 and not the age of 60 which is applicable to women.
  

E. Other relevant materials

33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of justice (ECJ) held that discrimination arising from gender re-assignment constituted discrimination on grounds of sex and accordingly Article 5 paragraph 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender re-assignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that

"... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender re-assignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender re-assignment.

To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard." (paragraphs 21-22)

34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v Reed [1997] 1 Industrial Law Reports).
  

F. Liberty's observations

35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person.
  

III. PROCEEDINGS BEFORE THE COMMISSION

36. Miss Sheffield applied to the Commission on 4 August 1993. She alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender re-assignment surgery gave rise to violations of Articles 8, 12 and 14 of the Convention and that she had no effective remedy in respect of her complaints, in breach of Article 13. She also complained that she was coerced by underhand methods into divorcing and is prevented from having contact with her daughter.

The Commission declared the application (no. 22985/93) admissible on 19 January 1996 with the exception of her complaint regarding her divorce and contact with her daughter which had been declared inadmissible on 4 September 1995 for failure to comply with the six-month time-limit under the Convention. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that the applicant's complaint under Article 12 of the Convention did not give rise to any separate issue (nine votes to seven); that the applicant's complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).

37. In her application to the Commission lodged on 4 August 1993, Miss Horsham alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender re-assignment surgery gave rise to violations of Articles 3, 8, 12, 13 and 14 of the Convention as well as of Article 3 of Protocol No. 4 to the Convention in relation to alleged constructive expulsion from the respondent State.

The Commission declared the second applicant's application (no. 23390/94) admissible on 19 January 1996 with the exception of her complaints under Article 3 of the Convention and Article 3 of Protocol No. 4 which had been declared inadmissible on 4 September 1995. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that her complaint under Article 12 of the Convention did not give rise to any separate issue (ten votes to six); that the applicant's complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).

38. The full texts of the Commission's opinions in the two cases and of the dissenting opinions contained in the reports are reproduced as an annex to this judgment [4].
  

IV. FINAL SUBMISSIONS TO THE COURT

39. The applicants in their joint memorial requested the Court to decide and declare that the facts of the case disclose a breach of their rights under Article 8 of the Convention and/or Article 14 in conjunction with Article 8 of the Convention and to award them just satisfaction under Article 50.

The Government requested the Court in their memorial to decide and declare that the facts disclose no breach of the applicants' rights.

[4] Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission's report is obtainable from the registry.