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

Partly Dissenting Opinion of Judge Casadevall (provisional translation)

1. I regret that I am unable to agree with the majority in this case, largely for the reasons of legal consistency I have already explained in my partly dissenting opinion in the X. Y. and Z. case (judgment of 22 April 1997).

2. I also regret that in this case the majority did not see fit to depart from the case-law established by the Rees judgment (January 1986) and the Cossey judgment (September 1990), having regard in particular to the B. v. France judgment (March 1992).

3. Certainly, the applicants have not shown (paragraph 56 of the judgment) that since the Cossey judgment there have been findings in the field of medical science which settle conclusively the doubts concerning the causes of transsexualism (a very difficult thing to require them to do). It is likewise certain that there is not yet any common European approach to the problems created by the recognition in law of post-operative gender status (paragraph 57 of the judgment). I accept that. However,

(a) like the Commission, I consider that account should be taken of the fact that the medical profession has reached a consensus that "gender dysphoria" is an identifiable medical condition, in respect of which gender re-assignment surgery is ethically permissible and may be recommended for the purpose of improving the quality of life of the persons concerned;

(b) following the Recommendation of the Parliamentary Assembly of the Council of Europe on the condition of transsexuals and the invitation to member States to introduce legislation on the question (1989), a large majority of thirty-three countries have adopted provisions for the legal recognition of sex changes and, through one procedure or another, recognise the new identity of persons who, under the supervision of committees of medical ethics and after gruelling and dangerous surgery, have succeeded in bringing their physiological sex into line with their psychological sex;

(c) the applicants, just as much as Miss B., daily find themselves in a situation which, taken as a whole, is not compatible with their right to identity and to respect for their private life. "Consequently, even having regard to the State's margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual has not been attained, and there has thus been a violation of Article 8" (B. v. France judgment, paragraph 63).

4. Admittedly, it is not for the Court to dictate, or even indicate, the measures to be taken in the present case, the respondent State having a free choice of means, provided that these are compatible with the obligation to respect private life as protected by the Convention. But I also agree on this point with the Commission's opinion that it would not be too difficult for domestic law to be changed so as to give the applicants, by whatever means were deemed appropriate, legal recognition of their new post-operative identity, without necessarily destroying or impairing the historical nature of the British system for the registration of births (if not by correction then at least by means of an addition, a margin note or simply a comment in order to reflect the present situation).

5. However, further support is lent to my views by what is said in paragraph 60 of the judgment, in which, the majority, having regard in particular to scientific and societal developments,

noted: "... it would appear that the respondent State has not taken any steps to do so";

observed: "... there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter";

reiterated that: "... this area needs to be kept under review by Contracting States";

Unfortunately, the majority of the Court have not drawn the logical consequences from those findings and observations.

6. In my opinion, there has been a breach of Article 8 of the Convention in the present case.