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

Joint Partly Dissenting Opinion of Judges Bernhardt, Thór Vilhjálmsson, Spielmann, Palm Wildhaber, Makarczyk and Voicu

Once again the Court is confronted with the difficult and profoundly human problems associated with transsexualism. In the present case both applicants were registered at birth as being of the male sex. They are both male to female transsexuals who subsequently underwent gender reassignment surgery - Ms Sheffield in the United Kingdom and Ms Horsham in the Netherlands. However under the law of the United Kingdom they are not recognised as being of the female sex and will continue to be treated for many legal purposes as if they were men.

Both applicants complain under Article 8. The essence of their complaint is that in certain situations - for example in taking out motor, house or life insurance, entering into other types of contracts, standing as surety in court proceedings - they are obliged to produce a birth certificate indicating their sex as recorded at birth which is in plain contradiction with their new post-operative appearance after gender re-assignment surgery. Such situations, they contend, cause intense humiliation, distress and embarrassment. Social security and police data systems also appear to record their former sex. In addition, for purposes of retirement age and pension entitlements they will continue to be treated by the law as men.

The Court has been faced with these problems before. In Rees v. the United Kingdom (judgment of 17 October 1986, Series A no. 106) it examined the issue from the standpoint of whether there existed a positive obligation on the State under Article 8 to enable the newly acquired post-operative sexual identity to be entered in the birth register. It found, by twelve votes to three, that on balance the United Kingdom could not be required to amend its system of birth registration in order to respect the private lives of the applicant. However the Court was "conscious of the seriousness of the problems affecting these persons and the distress they suffer"(paragraph 47). Recalling that the Convention must be interpreted and applied in the light of current circumstances it stated that "the need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments"(ibid.).

In its Cossey v the United Kingdom judgment of 27 September 1990 (Series A no. 184) the Court was faced with essentially the same question and, by the much narrower vote of ten to eight, reaffirmed its judgment in the Rees case. On this occasion it noted that there was still little common ground between the Contracting States in this area and that the States enjoyed a wide margin of appreciation. Again, however, it stressed that it was important that the need for appropriate legal measures in this area should be kept under review (paragraph 42). However in B. v. France (judgment of 25 March 1992, Series A no. 232) the Court, while re-affirming its Rees and Cossey judgments, found that the more far-reaching disabilities to which the post-operative transsexual was subject under French law amounted to a violation of Article 8 of the Convention.

We are of the conviction that in the almost twelve years since the Rees case was decided important developments have occurred in this area. However, notwithstanding these changes and the above cautionary remarks, United Kingdom law has remained at a standstill. No review of the legal situation of transsexuals has taken place.

In our opinion the fair balance that is inherent in the Convention tilts decisively in favour of protecting the transsexuals' right to privacy.

Already at the time of the Cossey judgment substantial changes had occurred in many member States of the Council of Europe - fourteen States according to Judge Martens' dissenting opinion in Cossey. Reference was also made in that judgment to the Resolution adopted by the European Parliament on 12 September 1989 and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the Council of Europe on 26 September 1989 which sought to encourage the harmonisation of law and practices in this field. Indeed since the Rees and Cossey judgments there has been a steadily increasing trend in member States of the Council of Europe to adopt legislation which permits changes to be made to the birth certificate to recognise, in one form or another, the new sexual identity of the gender re-assigned transsexual. Today, according to information submitted by Liberty in this case, 23 member States (out of 37 surveyed) permit such birth certificate entries in respect of post-operative transsexuals and only four countries (Albania, Andorra, Ireland and the United Kingdom) expressly prohibit any change. The position in the remaining States is not clear.

These figures in themselves - without needing to go into the varying details of such legislation - demonstrate convincingly that the problems of such transsexuals are being dealt with in a respectful and dignified manner by a large number of Convention countries. We do not believe that the Court need wait until every Contracting Party has amended its law in this direction before deciding that Article 8 gives rise to a positive obligation to introduce reform. Bearing in mind that the Convention must be interpreted in the light of modern day conditions, enough has been achieved today in Europe to sustain this argument (cf. the inferior state of evolution in the law concerning maternal affiliation which the Court considered to be persuasive in its Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, §§ 40 and 41).

We accept, as the Court observes in paragraph 58 of its judgment, that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States. However what this means is that the legal recognition of a change of sex - or its repercussions in areas of law such as marriage, filiation, privacy, adoption etc. - takes diverse forms in the different countries. But how can we expect uniformity in such a complex area where legal change will necessarily take place against the background of the States' traditions and culture? However the essential point is that in these countries, unlike in the United Kingdom, change has taken place - whatever its precise form is - in an attempt to alleviate the distress and suffering of the post-operative transsexual and that there exists in Europe a general trend which seeks in differing ways to confer recognition on the altered sexual identity. Most recently this has been recognised by the European Court of Justice in the case of P. v. S. and Cornwall County Council which held that discrimination against a transsexual amounts to discrimination on grounds of "sex" for purposes of community equality legislation at the work place.

Secondly we hesitate to accept the Court's statement in paragraphs 55 and 56 of the judgment that there have been no noteworthy scientific developments in this area which should compel the Court to depart from its earlier decisions. Our quarrel is not with the statement that Professor Gooren's research into the role of the brain in conditioning transsexualism does not enjoy universal support in the scientific world but that the Court's approach fails to take into account the acceptance by the medical profession of gender dysphoria as a recognised medical condition that can be improved by gender re-assignment surgery. This development, in turn, has led to a much greater societal tolerance towards and acceptance of the plight of these individuals as borne out by the willingness of doctors to recommend such surgery and the fact that the cost is often - as in the case of the present applicants - borne by the national health services. We are thus of the view that, alongside the growing legislative trend, there has been a developing medical and societal acceptance of the phenomenon.

It is not a sufficient answer to this important development that the scientific community cannot agree on the explanation of the causes of transsexualism or that surgery cannot - and perhaps will never be able to - lead to a change in the biological sex. Respect for privacy rights should not, as the legislative and societal trends referred to above demonstrate, depend on exact science. What is undisputed is that the harsh and painful path of gender re-assignment surgery may lead to an improvement in the medical condition of the transsexual.

We are convinced therefore in light of the evolution of attitudes in Europe towards the legal recognition of the post-operative transsexual that the States' margin of appreciation in this area can no longer serve as a defence in respect of policies which lead inevitably to embarrassing and hurtful intrusions into the private lives of such persons. If the State can make exceptions in the case of driving licences, passports and adoptive children (see paragraphs 16 and 44 of the judgment) solutions can be found which respect the dignity and sense of privacy of post-operative transsexuals. As the Commission has pointed out, it must be possible for the law to provide for transsexuals to be given prospective legal recognition of their new sexual identity without necessarily destroying the historical nature of the birth register as a record of fact. It is of relevance in this context that the applicants are not claiming that their former identity should, for all purposes, be completely effaced. In short, protecting the applicants from being required to make embarrassing revelations as to their sexual persona need not involve such a root and branch overhaul of the system of birth registration as thought necessary in the Rees and Cossey judgments. The margin of appreciation may come into play in a wider manner as regards the specific choices exercised by the State in conferring legal recognition.

The present applicants have undergone, following appropriate medical advice and counselling, painful and gruelling gender re-assignment surgery. This has undoubtedly involved substantial hardship and, as in the case of Ms Sheffield, the dislocation of personal relationships. When required to prove their identity in certain situations they are placed in a situation where they are obliged to choose between hiding their new sex - which may not be either possible or lawful - or revealing the truth about themselves and facing humiliating and possibly hostile reactions. It is no longer possible, from the standpoint of Article 8 of the Convention and in a Europe where considerable evolution in the direction of legal recognition is constantly taking place, to justify a system such as that pertaining in the respondent State, which treats gender dysphoria as a medical condition, subsidises gender re-assignment surgery but then withholds recognition of the consequences of that surgery thereby exposing post-operative transsexuals to the likelihood of recurring distress and humiliation.

For the above reasons we consider that respect for private life under Article 8 imposes a positive obligation on the respondent State to amend their law in such a way that post-operative transsexuals no longer run the risk of public embarrassment and humiliation by being required to produce a birth certificate which records their original sex. There has therefore been a violation of this provision in the present cases.

We agree with the Court's finding as regards the applicants' remaining complaints.