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

Concurring Opinion of Judge Sir John Freeland

1. My vote in favour of the finding that there had been no violation of Article 8 of the Convention in these cases was cast after much hesitation and even with some reluctance. The cases disclosed a wider range of situations in which difficulty and embarrassment may be caused to post-operative transsexuals in the United Kingdom than had been demonstrated to the Court in the Rees and Cossey cases. In both those cases, the second of which was decided as long ago as 1990, the Court had expressed its awareness of the seriousness of the problems facing transsexuals and the distress which they suffer. It had also made clear in both these cases the importance which it attached to the need for appropriate legal measures in this area to be kept under review. In the years since the Cossey decision that need has certainly not diminished. Yet in the present cases the Court, contrary to what it could reasonably have expected, was given no ground to suppose that the respondent State had in fact undertaken any action in this respect.

2. On the other hand, essentially for the reasons indicated in paragraphs 56 and 57 of the judgment I was not satisfied by the material placed before the Court that scientific or legal developments since 1990 had been such as to justify it in departing from its Rees and Cossey decisions and concluding in the present cases that on the basis of such developments alone the respondent State can no longer sustain its position by reliance on a margin of appreciation. As regards the range of practical problems for the applicants which the present cases disclosed, while concerned not to underestimate in any way their potential for causing embarrassment or hardship I found them to be less injurious in likely frequency of occurrence and seriousness than those experienced by the applicant in the case of B. v. France, in which I voted in favour of the finding of a violation of Article 8. Those problems for the applicants, deserving as they are of the Court's sympathy, in my view fall short, if not by far, of causing sufficient detriment to override the margin of appreciation.

3. It has not been easy to weigh up the various factors and I acknowledge that continued inaction on the part of the respondent State, taken together with further developments elsewhere, could well tilt the balance in the other direction. My overall conclusion was, however, that in the light of scientific and legal developments so far and in the particular circumstances of these cases it would not be right for the Court now to find a violation of Article 8.