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

Dissenting Opinion of Judge Van Dijk

1. It is my strong belief that the Court should have responded in a positive way to the urgent appeal, made by the Delegate of the Commission at the hearing, to revise its case-law as laid down, in particular, in its Rees judgment and in its Cossey judgment. Consequently, I cannot join the majority in finding that Article 8 of the Convention has not been violated in the present case. As to Article 12, I will refer to that provision later on in this opinion.

2. As is well-known, already in its Rees judgment the Court stated in so many words that in the area of the legal recognition of gender re-assignment, "the law appears to be in a transitional stage" and that "(t)he need for appropriate legal measures should be kept under review having regard particularly to scientific and societal developments (Rees v. United Kingdom judgment of 17 October 1986, Series A no. 106, pp.15 and 19, §§ 37 and 47). And in its Cossey judgment the Court expressly raised the question whether a departure from its Rees judgment was warranted in order to ensure that the interpretation of Article 8 on the point at issue remains in line with present-day conditions (Cossey v. United Kingdom judgment of 27 September 1990, Series A no. 184, pp.14 and 16, §§ 35 and 40). It answered that question in the negative for that moment ("at present"), but found it appropriate to repeat what it had said in its Rees judgment, namely that it "is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review" (ibid. p.17, § 42).

These observations clearly indicate that, in both judgments, the Court intended to leave the door open to the possibility that, at a later stage, it would find that the positive obligation implied in Article 8 required the States to take appropriate legal measures to recognise the acquisition of a new sexual identity.

In its Cossey judgment the Court indicated that it should depart from previous case-law only if there are cogent reasons for doing so (§ 35). According to the Delegate of the Commission at the hearing, the Commission had found such reasons for recommending the Court to review and revise the approach taken by the majority in the Rees judgment and the Cossey judgment (Cour/Misc (98) 117). She referred to a trend within the member States towards a more generous approach to sexual minorities as well as an increased awareness of the particular situation of minorities in general.

Personally, I would not characterise the issue of the legal status of post-operative transsexuals as one of minorities, but rather as one of privacy: everyone's right to live one's life as one chooses without interference, and everyone's right to act and be treated according to the identity that corresponds best to one's innermost feelings, provided by doing so one does not interfere with public interests or the interests of others. Even if there were only one post-operative transsexual in the United Kingdom claiming legal recognition of the re-assignment of his or her sex, that would not make the claim any weaker. That being said, I find the appeal of the Commission's Delegate to the Court timely, appropriate, and convincing.

3. As far as the legal status of transsexuals is concerned, one cannot say that landslide changes have taken place in the member States of the Council of Europe since the Court gave judgment in the Cossey case. However, at the very least, there has been a steady development in the direction of fuller legal recognition and there is no sign of any retreat in that respect. Among the member States of the Council of Europe which allow the surgical re-assignment of sex to be performed on their territories, the United Kingdom appears to be the only State that does not recognise the legal implications of the result to which the treatment leads.

The recommendations and resolutions of the Parliamentary Assembly of the Council of Europe and the European Parliament, although not legally binding, are also indicative of the same trend towards legal recognition and of the growing awareness that post-operative transsexuals are entitled to such recognition.

4. What is more important, almost twelve years have passed since the Court delivered its Rees judgment and almost eight years since it delivered its Cossey judgment. However, the British Government have not taken any substantial action to improve the legal situation of post-operative transsexuals in the United Kingdom. Only at a very late stage in the present procedure have the British (Labour) Government indicated their willingness to seek a solution within the framework of a friendly settlement, thus making it clear that in their opinion also the problems on which previous Governments had relied during all those years were not insolvable ones.

5. In relation to the interests of the applicants at stake, the Government have submitted that there would be a breach of Article 8 only if there was substantial, practical detriment on an everyday basis as a result of the refusal to recognise legally the gender re-assignment of post-operative transsexuals. They deny that the applicants are faced with such detriment.

Leaving aside the correctness of the qualification of the scope of protection of Article 8 as such, it is my firm belief that the applicants in the present case have sufficient, and even major, grounds to seek the protection of the Convention.

First of all, I would like to quote from the dissenting opinion of my predecessor, Judge Martens, in the Cossey case, where he stresses "that (medical) experts in this field have time and again stated that for a transsexual the 'rebirth' he seeks to achieve with the assistance of medical science is only successfully completed when his newly acquired sexual identity is fully and in all respects recognised by law. This urge for full legal recognition is part of the transsexual's plight" (Series A no. 184, p.23). And further on in the same opinion he states: "The BSD-system keeps treating postoperative transsexuals for legal purposes as members of the sex which they have disowned psychically and physically as well as socially. The very existence of such a legal system must continuously, directly and distressingly affect their private life" (ibid. p. 26).

Secondly, I refer to the Court's case-law, for instance its Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45, p.18, § 41), where it held that "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant's right to respect for his private life (...) within the meaning of Article 8 § 1. In the personal circumstances of the applicant, the very existence of the legislation continuously and directly affects his private life". Besides, as stated above, both in its Rees judgment and in its Cossey judgment the Court itself indicated that it was "conscious of the seriousness of the problems facing transsexuals and the distress they suffer"; since then, no substantial improvement of the situation has taken place.

Thirdly, and most importantly, what is at stake here is the fundamental right to self-determination: if a person feels that he belongs to a sex other than the one originally registered and has undergone treatment to obtain the features of that other sex to the extent medically possible, he is entitled to legal recognition of the sex that in his conviction best responds to his identity. The right to self-determination has not been separately and expressly included in the Convention, but is at the basis of several of the rights laid down therein, especially the right to liberty under Article 5 and the right to respect for private life under Article 8. Moreover, it is a vital element of the "inherent dignity" which, according to the Preamble to the Universal Declaration of Human Rights, constitutes the foundation of freedom, justice and peace in the world.

Against that background I consider it highly regrettable that the majority allowed itself to be led astray by the Government's arguments in holding that it has not been demonstrated that the non-recognition of the applicants' gender re-assignment "gives rise to detriment of sufficient seriousness as to override the respondent State's margin of appreciation in this area" (§ 59 of the judgment). In applying the fair-balance test, and as an element thereof the proportionality test, the majority should have taken stock of the whole picture. In particular, they should have taken into account, on the one hand, that the detriment to the first applicant is not limited to the specific incidents advanced by her (to be considered quite serious in themselves), but consists of a continuous risk of being forced to reveal her pre-operative gender which she deliberately and at great cost has abandoned and, on the other hand, that the Government have not made out any plausible argument that the interests of third parties referred to by the majority cannot be met in another less distressing way for the applicant and without destroying the historical nature of the births register. The second applicant, Miss Horsham, can avoid the same measures and continuity of detriment only at the cost of having to choose as her country of residence a country other than her own country.

6. This brings me to the central issue in the two cases: has a fair balance been struck by the British authorities between the general interest of the community and the interests of the applicants by not taking the measures required to give full legal recognition to the latter's gender re-assignment?

As to the general interest of the community, the British Government again rely on the argument that legal certainty and consistency demand that birth registration can be relied upon as a statement of true facts and that, therefore, no changes can be made afterwards save for cases of clerical or factual errors which occurred at the moment of registration. The Government do not, however, address the obvious question concerning how other member States of the Council of Europe have dealt with that problem without, apparently, creating unacceptable legal uncertainty. It is my firm belief that British society, or the English legal system, cannot have such specific features in this respect that these require and justify an interference of such a scope in the private lives of post-operative transsexuals while other European democratic societies apparently feel no need for such an interference. To the extent that there are certain specific features of any relevance, these may be taken into consideration when adopting the required measures, since no uniform model has to be followed in that respect (see also Judges Bindschedler-Robert and Russo in their joint partly dissenting opinion in the Cossey case and Judge Martens in his dissenting opinion in that case; Series A no. 184, pp.20 and 29-30 respectively). In that respect, therefore, a margin of appreciation is indeed left to the domestic authorities, and the fact that there may be no consensus within the member States of the Council of Europe on how to accommodate the specific needs of post-operative transsexuals concerning the registration of their sex does not stand in the way of finding a positive obligation under Article 8.

As was indicated by the applicants with reference to the system of registering adoptions, birth certificates do not necessarily have to be changed or rectified in order to register new developments such as adoption or sex re-assignment; a note may be added to the register as evidence of the legal recognition of the change. As I said before, from the fact that at a certain stage the present British Government offered to find a solution within the framework of a friendly settlement, it may be concluded that the Government themselves did not think that the problems advanced by them were insolvable within the English legal system. However, it is not for the Court to go into possible options and practical solutions in any detail.

Even if one accepts that full legal recognition of gender re-assignment poses certain problems for the English legal system and for society at large, and in specific situations for certain third parties, keeping the system as it is now, with its serious and continuous consequences for the private lives of post-operative transsexuals and the distress involved, in my opinion cannot be considered as an attitude on the part of the British Government that is proportionate to the aims pursued: legal certainty and consistency for the protection of the rights of others; society and individual third parties may be required to accept a certain inconvenience to enable their fellow citizens to live in dignity and worth in the same society in accordance with the sexual identity chosen by them at great personal cost. I fully subscribe to the observations on the balancing of interests made by Judge Martens in his dissenting opinion in the Cossey case referred to above (especially §§ 3.6 and 3.7).

7. In conclusion I am of the opinion that the Court should have revised its previous case-law on the matter in relation to the United Kingdom, and should have found a violation of Article 8. Indeed, I deem it highly regrettable that the present Court has not used this very last opportunity to do so, thus giving clear guidance on what I consider to be the right direction in this area to the new Court. The concluding observation by which the majority reiterates that this area needs to be kept under review by Contracting States sounds rather gratuitous and will hardly impress the new Court, given the weight which the present Court has attached to that need.

8. With respect to Article 12 of the Convention I can be quite brief. Since, in my opinion, Article 8 requires legal recognition of gender re-assignment following a surgical operation, this implies that the applicants have to be considered as persons of the new sex for legal purposes, including for the application of Article 12. Therefore, even if one starts from the presumption that Article 12 has to be considered to refer to marriages between persons of the opposite sex - a presumption which still seems to be justified in view of the clear wording of the provision, although it has the unsatisfactory consequence that it denies to, or at least makes illusive for, homosexuals a right laid down in the Convention - the applicants should be treated as women under Article 12, and should be allowed to marry men. Only in that way is their choice of a new sexual identity socially respected and legally recognised. The fact that, biologically, the medical treatment may not have changed their sex to that of women is, in my opinion, not relevant as that fact does not stand in the way of a marriage and the applicants are in any case not (or no longer) in any better disposition psychologically or physically - to marry women. I cannot see any reason why legal recognition of re-assignment of sex requires that biologically there has also been a (complete) re-assignment; the law can give an autonomous meaning to the concept of "sex", as it does to concepts like "person", "family", "home", "property" et cetera.

It cannot be denied that the "common ground" among the member States of the Council of Europe for recognition of marriages between post-operative transsexuals and partners of their previous sex is less apparent than for other aspects of legal recognition of gender re-assignment. At first sight, that fact would seem to justify a rather broad margin of appreciation on the part of the individual States. However, denying post-operative transsexuals in absolute terms the right to marry a person of their previous sex while marrying a person of their newly acquired sex is no longer an acceptable option, would amount to excluding them from any marriage. Since no restriction of a right or freedom laid down in the Convention may affect that right or freedom in its essence (see Article 17 of the Convention), it must be concluded that such an absolute denial falls outside the margin of appreciation. That margin only allows for a certain discretion as to the modalities and requirements, of the marriage of transsexuals to avoid or remedy certain legal and practical problems which such a marriage may pose. Here, again, it is not for the Court to go into different options and modalities in the abstract. I am, therefore, of the opinion that Article 12 has also been violated in the two cases.

The observation by the majority that Miss Horsham's complaint relates to the recognition by the United Kingdom of a post-operative transsexual's foreign marriage rather than to English law governing the right to marry is, in my opinion, beside the point. It does not explain why section 11(b) of the Matrimonial Causes Act 1973 (see § 27 of the judgment) would not affect the applicant. Even it that were the situation under private international law, the main reason or one of the reasons why the applicant lives and intends to marry her male partner in the Netherlands would seem to lie precisely in the legal situation prevailing in the United Kingdom. Therefore, even if it cannot be said with certainty what the outcome would be were the validity of her marriage, contracted under Dutch law, to be tested in the English courts, it cannot be denied that the applicant has suffered from the mere fact that English law does not allow her to marry her partner or any man.

9. As a consequence of my finding of a violation of Articles 8 and 12, I do not deem it necessary to discuss and examine separately whether these violations also disclose discrimination contrary to Article 14. Therefore, I voted for non-violation of Article 14, but on grounds different from those advanced by the majority.

10. As far as Article 13 is concerned, I share the unanimous opinion of the Court.