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

Joint Concurring Opinion of Judges De Meyer, Valticos and Morinella (provisional translation)

I.

Situations which depart from the normal and natural order of things must not give rise to aberrations in the field of fundamental rights.

In that field arguments, derived from scientific, legal or societal developments [1], the variety of practices and conditions [2] or the lack of a consensus or a common approach [3] are not necessarily relevant. Arguments based on the margin of appreciation that States are said to have [4] are not relevant at all. Common sense must be sufficient.

Moreover, the "rights and freedoms of others" and the "requirements of morality, public order and the general welfare"[5] need to be taken into account, and a fair balance must be struck between the conflicting interests.
  

II.

It was not contested that the birth certificates of the two applicants and the related entries in the register of births correctly mentioned the sex they were when they came into the world.

The fact that they have subsequently "changed" sex gives them no right to have their "new" sex mentioned in their birth certificates or register entries.

That would be a falsification. It would be rather like permitting a husband who has gone to live with another woman to demand that his wife's name on his marriage certificate be replaced by that of his new partner.

Similarly, and for the same reason, there can be no question of correcting the other documents dating from before the operations undergone by the applicants which mention their "former" sex.

Like any other human being, a transsexual must come to terms with his past [1]. He has no need to be ashamed of having wanted to change sex and no one has any right to take offence on that account.
 

III.

As matters stand at present, a sex change "does not result in the acquisition of all the biological characteristics of the other sex" [2]. While it removes the organs and functions specific to the "former sex", it creates, at most, only the appearance of the "new sex".

There is therefore nothing unreasonable or arbitrary in not recognising in law that post-operative transsexuals are of this "new sex" and, since marriage implies the union of a man and a woman [3], in refusing transsexuals the right to marry a person of their "former" sex.

Even if "scientific progress" made it possible to acquire all the attributes of the opposite sex, there would still be difficult ethical and legal questions to be settled. Such questions, moreover, have already arisen, particularly with regard to previous matrimonial and parental relationships [4].

In any event, the facilities [5] afforded by the respondent State to post-operative transsexuals go a long way towards remedying the disadvantages of their situation.

[1] According to the theories of Professor Gooren, who describes himself as "a recognized authority" on transsexualism (annex 5 to the applicants' memorial) and who is also one of Rachel Horsham's doctors (annex 12/5 of the same memorial), the female differentiation of the applicants' brains must have occurred by the age of three or four (annex 5 to the same memorial and § 43 of the judgment). That did not prevent each of the applicants from marrying a woman, which obviously happened long after they had reached that age, nor above all did it prevent Kristina Sheffield from becoming the father of a child.

[2] See § 56 of the judgment.

[3] That is what Article 12 of the Convention states too.

[4] When in 1986 the former Ian Sheffield decided to undergo surgery, he was married and the father of a daughter (see §§ 12 and 15 of the judgment). When in 1992 the former Richard Horsham applied to the Amsterdam Regional Court for a declaration recognising his change of sex, he was divorced (annex 12/5 of the applicants' memorial).

[5] See § 59 of the judgment.