Critically analyse the extent to which the right to respect for a private life provides protection for a transsexual's ability to gain legal recognition for a change of gender.

“Private life” appears to encompass a widening range of protected rights. In Niemietz v Germany, a case of note for transsexuals, the Court said: ‘It would be too restrictive to limit the notion [of private life] to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings’. This has been acknowledged as a broad interpretation of privacy, capable of offering wider protection of individuals’ rights than the traditional approach which was generally limited to secrecy of personal information and seclusion.

The Court has also confirmed that choice of sexual relations falls under Article 8. In Dudgeon, Northern Ireland was found to be in breach of the Article as a result of its prohibition of homosexual intercourse. However, the Court took a cautious approach. It held the provisions of the Northern Irish law were unnecessary as they had not been enforced in recent times, and they were consequently amended by the Northern Irish government. The Court addressed the question of whether the interference in private life had been necessary in order to protect morals, but it only stated that no detriment in morals had apparently resulted from the disuse of the provisions. This failed to progress the important issues raised in Niewietz. Two years later the Commission held the provisions of the Army Act 1955 (banning homosexual practices in the armed forces) were justified under the prevention of disorder and protection of morals clauses. Once again the scope of Article 8 in relation to gender was left largely unanswered.

Many believed that Article 8 would be interpreted more widely following the introduction of the Human Rights Act 1998, but case-law has not supported this view. Some argue that the Government’s failure to recognise a change of sex was a breach of Article 8. Finally, in 2002 the Goodwin ruling of the European Court of Human Rights re-defined transsexuals’ right to respect for a private life to include legal recognition for a change of gender. Later in 2002 the British Government announced legislative reform along the same lines. Analysis of the cases which lead to this breakthrough follows.

Changing law:

 

Four years prior to the announcement that legislation will be introduced to allow alteration of the gender on transsexuals’ birth certificates there was a study of 37 Member States of the Council of Europe. It found that twenty-three states permit changes to birth certificates to show changes in gender, the position was unclear in ten states, and only four – the UK, Ireland, Albania and Andorra – expressly forbade such alterations. Many cases came before the European Court of Human Rights from applicants testing the legality of the British position.

Europe

With a certain amount of ambiguity as to the scope of a respect for private life under Article 8, the question of transsexuals’ right to legal recognition has been one addressed by the Court with some uncertainty. Prior to 2002 the Court saw the guarantees under Article 8 for transsexuals’ right to respect for a private life as unclear, and it ruled with varying (and generally decreasing) majorities to dismiss transsexuals’ appeals.

In Rees v United Kingdom, the Court ruled by a majority of 12:3 to dismiss an application by a transsexual under Article 8 to allow legal recognition for a change of gender. In its reasons the Court cited the relatively relaxed attitude taken in the United Kingdom in respect of birth certificates. The Court stated that one rarely has to produce a birth certificate in the UK, where there is no system of identification similar to the continental civil status certificate.

Five years after Rees a similar case came before the Court. In Cossey v. United Kingdom, the applicant had undergone a male to female conversion (as opposed to the opposite operation which was at issue in Rees). The outcome was identical to Rees, as the transsexual applicant failed under Article 8. But there was a significant shift within the Court, which ruled against the applicant by a majority of only 10:8. The operation involved was more common and more socially acceptable that the one in Rees, and this is a reason often given for the Court’s lower majority.

The dissenting opinion of Martens J offers perhaps the most crucial insight into the reasons for the lower majority. He stated that his, and the other seven judges’, opinions were based on changing social attitudes to transsexualism, which was increasingly seen as an essentially private activity. It was therefore his belief that Article 8 should provide protection for a transsexual’s ability to gain legal recognition for a change of gender. Furthermore, he suggested any ‘treatment’ of the syndrome was incomplete without full legal recognition. In support of his arguments he pointed to the Court’s ruling in Rees, which had left the door open to accommodate possible future changes in scientific and societal attitudes towards transsexualism.

Changes in attitude towards transsexualism were again cited in B v France, a case which came before the Court the following year. The Cour de Cassation in France refused to declare that, after surgery, B was now of female sex, and refused to alter her documentation accordingly. Its reasons focussed on the patient’s true biological gender, and they included the fact that her changes had arisen due her own choice without the safeguards insisted upon under French law. The European Court of Human Rights held in favour of the applicant by a majority of 15:6, stating that Article 8 had been violated. Because the French system imposes a lack of privacy by constantly publicising a person’s sex by way of his or her social security number, the applicant’s right to respect for a private life had been infringed. France was forced to modify the system. In its judgement the Court noted significant recent scientific developments, such as the recognition of testicular feminisation syndrome and the suggestions of a genetic background to transsexualism. However, it also said that the transsexualism question was still in a state of flux.

It was for the latter reason, coupled with the different system of identification in the UK, that the Court did not immediately overturn the rulings of Rees and Cossey. This left the United Kingdom unaffected by the changes which had increased the protection of transsexuals’ rights in France. In 1996, in the case of Sheffield and Horsham v United Kingdom, the Court once again found in favour of the UK Government in respect of the rights protected by Article 8. However, the majority decreased once more, this time to only 11:9. Primarily, it was argued that the developments in the field of transsexualism since Cossey were insufficient to overturn the earlier judgements. Furthermore, the Court noted that deciding what positive steps the state must take to advance the right involve balancing the general interests of the community with the individual concerned. Because the state enjoys a margin of appreciation with such decisions, the diversity of practices between states meant there was no settled response from the parties to the Convention. The Court in Sheffield v Horsham was vehement in its criticism of the UK for not keeping this area of law under review, and it appeared to be signalling that a change was on the cards.

The position after these cases, therefore, is rather curious. Article 8 gives the right to transsexuals in some, but not all, European states to have their change of gender recognised. People in countries such as the UK, where comparatively few disabilities, obligations, or embarrassments are imposed on transsexuals, have no right to official recognition of their re-assigned sex. It has been argued that this: ‘misses the point of Article 8. Respect for private life is not simply a matter of protecting people from the embarrassment of external scrutiny of their personal situations. It involves respect for the individual’s own dignity, and sense of being valued’.

However, it seems that in the UKthis position is about to change. The landmark case came in the summer of 2002. Christine Goodwin, a former bus driver, and “I”, an unnamed male-to-female transsexual, appealed to the European Court of Human Rights after the British courts ruled that, under British law, sex is established at birth and cannot be altered. As the decreasing majority of the Court perhaps foretold in the many previous, similar cases, the judges ruled in favour of the applicants and held that British law violated transsexuals’ rights to respect for private life under Article 8. One reason for this change was the impact of ongoing developments in the scientific understanding of transsexualism. Furthermore, it was agreed that the State cannot plausibly argue that it is unable to find a less distressing way to safeguard the interests of third parties and protect the historical nature of the register of births. The Court once again criticised the British Government for failing to review the law.

The Goodwin ruling has forced the Government to announce reform, which will allow transsexuals to gain legal recognition for a change of gender by permitting them to apply for alterations to their birth certificates.

Article 12: the right to marry and found a family

Though not directly relating to the title of this essay, it is worth mentioning the importance of Article 12 ECHR in transsexuals’ battle to have their gender legally recognised. In most of the cases cited in the previous section the applicants argued on the basis of Article 12 - the right to marry and found a family - in conjunction with their arguments based on Article 8. Until Goodwin, their applications failed under Article 12 as they did under Article 8. But the majority in the rulings decreased as time went on, in parallel to the situation under Article 8, and in Goodwin the Court finally decided in favour of the applicant on the basis of Article 12 as well as Article 8. The applicant was therefore awarded the right to marry a member of her chromosomal sex.

United Kingdom

Prior to the Goodwin ruling, a reason why the ECHR had declined to force the UK to alter transsexuals’ birth certificates was that these documents were intended as accurate historical records rather than to serve purposes of identification. The change recently announced by the Government, therefore, has arguably come as a more significant step than it was in the majority of European states. The status of British birth certificates will change significantly: they will become an indicator of present identification rather than an accurate historical record.

However, in other ways change in the UK should not be so great. In comparison with other European countries, the UK is relatively unconcerned with sex. The registration of transsexuals in their ‘new’ sex for National Insurance and employment purposes is relatively common. In White v British Sugar, for example, a woman was treated as a ‘man’ for national insurance needs and was regarded as a women under the Sex Discrimination Act 1975. Furthermore, Britons are free to use any name of their choice, and are not required to carry an identity card or any other document displaying their given names or sex.

Nevertheless, the nature of the change forced upon the United Kingdom by the ECHR has lead some commentators to voice their concerns over the possible content of reform. The transsexuals’ campaigning group Press for Change welcomed the changes announced by the Government, but is concerned that there might be loopholes in the new law and delays before it goes on the statute book. One stumbling block the group notes is the issue of people who had changed sex but remain in existing marriages, for example because of pension reasons. Ministers are currently divided on whether such people should have to divorce if they wanted to change the sex on their birth certificates. Press for Change believes “it’s vital that the proposals provide full legal recognition for all purposes. If there are any exceptions, it will be worthless”.

Critical Analysis of forthcoming legislative reform:

Allowing the birth certificates of transsexuals to reflect their change of gender will have significant repercussions in varied aspects of their lives. As it stands, the law in Britain fails to prevent direct sex discrimination, which occurs when a person’s chromosomal sex is used directly or expressly to limit their choices, opportunities or benefits. Such discrimination is most often used to enforce the socially traditional sex roles, channelling chromosomal men into one role and chromosomal women into another.

Robert Wintemute identifies several kinds of discrimination faced by transsexuals. They include “(a) sanctions against persons using hormones and surgery to change their physical sex characteristics; (b) restrictions on who may wear or adopt clothing, make-up, jewellery, hairstyles or behaviour association with a particular sex; (c) restrictions on entry to, use of, or participation in single-sex locations or activities; (d) the existence of the legal categories of ‘man’ and ‘woman,’ and the refusal of UK law to permit transsexual persons to transfer from one to the other”.

Kristina Sheffield, one of the applicants in Sheffield and Horsham v UK, exemplified the impact of discrimination. She suffered great embarrassment on being required to disclose her previous name, for example when she applied for a visa, when she obtained motor insurance and when she acted as surety to a friend in court. The European Court of Human Rights, however, decided the detriment was not sufficiently serious to outweigh the public interest in requiring people to reveal their previous identities. The decision to allow legal recognition for a change of gender will theoretically end such discrimination by preventing forced disclosure of chromosomal sex.

Marriage

The seminal British case is Corbett v Corbett, in which a male-to-female transsexual married a man in Gibraltar, who subsequently petitioned in England for nullity. It was held that marriage depends on sex, not gender, to be determined by the chromosomal pattern, original gonadal status and the pre-operative genitalia. As marriage is a union between one man and one woman the Corbetts’ marriage was declared void.

This has been the (heavily criticised) position of English law since 1972. The Government’s announcement, however, means that when the new legislation comes into force transsexuals’ will have the right to marry. Though based on the interpretation of Article 12 in Goodwin, this change would not have been possible without transsexuals’ having the ability to gain legal recognition for a change of gender under Article 8.

Employment

There has been much case-law and discussion on employment discrimination against transsexuals. However, it was not until 1996 that the European Court of Justice ruled that employment discrimination was direct sex discrimination. This had remained unrecognised by almost all the courts of the world until the ruling in P v S and Cornwall County Council. P had been dismissed after informing her employer of her intention to undergo gender reassignment, including the use of hormones and surgery to alter her physical gender characteristics. The Court held in favour of the applicant, on the basis that the employer’s actions violated the Equal Treatment Directive.

In P v S Advocate General Tesauro noted that the decision the Court had to make was ‘courageous’, in the profound conviction that what is at stake is the universally fundamental value of the irrelevance of a person’s sex with regard to the rules regulating relations in society. As the court accepted the Advocate General’s advice, Tesauro’s words highlight the leap of faith taken by both the European Court of Human Rights. The Government has had to take a similar leap of faith in announcing reform.

Now that it has been announced that a transsexual’s change of gender will be legally recognised, employers will have no legal right to knowledge of the chromosomal sex of their employees or job applicants. This should bring an end to these days when transsexuals are denied any remedy against instant dismissal by employers who discover their former identities. P v S was a significant step forward, and legislative reform should be an even greater step forward if the new law is implemented in the manner pressure groups hope. The promised extension to the protection of the right for a private life should extend all the way to the workplace, and result in a significant reduction in sexual discrimination against transsexuals.

Family

The rights transsexuals may expect with regard to their family under Article 8, which encompasses family law as a well as a right to respect for a private life, have come under increasing scrutiny in the last 10 years. X, Y and Z v United Kingdom concerned a transsexual ‘father’ of a child conceived by his partner through artificial insemination by donor. The transsexual, X, applied to the Registrar General to be recognised as the father of the child (he did not wish to have his birth certificate altered). The Registrar General refused. The European Commission on Human Rights held that there had been a violation of Article 8. The case progressed to The European Court of Human Rights, where it was held by a majority of 14 votes to 6 that there had been no violation of Article 8. The Court had ‘retreated behind the defences’ that there was no clear consensus among member states, that the law was in a period of transit and that the reverse decision would have lead to confusions and inconsistencies in family law.

The changes being introduced by the Government may see British cases with facts similar to X, Y and Z decided differently in the future. The transsexual’s right to change their birth certificate will have significant repercussions in the area of the family, and it may even extend to allowing the registration of a male-to-female transsexual as the father of a child born to her partner by artificial insemination by donor. Whether this will or will not be the case depends on the content of the legislation and the interpretation thereafter provided by the British courts. It seems certain, however, that the reforms will significantly extend the rights currently protected by Article 8 into the area of family life.

Conclusion:

 

A person’s gender is central to his or her personality and aspirations, and to society’s expectations. A transvestite who achieves a good cosmetic result is doing no public harm. This it not recognised by the immediate legal situation, however, which is therefore at odds with both social norms and scientific evidence. The consistent refusal of the law to accept a person’s commitment to a reassigned sex, involving long periods of major surgery and drug therapy, and confirmed by doctors, constitutes a serious breach of that person’s right to a private life. He or she should be fully entitled to operate as a member of his or her chosen sex.

The change in legal perspective was perhaps inevitable. Since the Goodwin ruling the European Court of Rights’ definition of the right to respect for a private life in Article 8 has included transsexuals’ ability to gain legal recognition for a change of gender. However, as yet this has only limited effect in the UK. The importance of the Government’s announcement of reform can therefore not be undervalued.

Analysing the extent and effectiveness of the forthcoming legislation is impossible at this stage, but it is at least certain to end English law’s absolute physical distinction between men and women. As individuals are now scientifically regarded as lying on a continuum, the new law will come many steps closer to current scientific understanding. Because of this, it will show a respect for transsexuals’ right to respect for a private life that it has so far failed to do.

The first test will be the case of Elizabeth Bellinger, a male-to-female transsexual, who lost her appeal to recognise the validity of her marriage to Michael Bellinger in the Court of Appeal in July 2000. Both judges who ruled against her in the Court of Appeal called on the government to change the law. Her case will be heard in the House of Lords in January 2003. However, despite its proposed reforms, the Government is formally opposing her plea, stating that a human rights ruling is not retrospective.

The reform may have consequences outside the sphere of transsexualism. With the door shortly to be opened to transsexual marriage, it is argued that the campaign for the legalisation of homosexual marriage will gain impetus. Though homosexuality is still considered by the European courts as a significantly different matter than sex reassignment, it may only be a matter of time before their interpretation of Article 8 is extended into this field.

If reform is executed as pressure groups hope, there can be no doubt that the current  legal situation is about to change for the better. Reform will extend the British definition of transsexuals’ right to respect for a private life to enable them to gain legal recognition for a change of gender.

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Bibliography

Feldman, Civil Liberties and Human Rights in England and Wales (2002) 2nd Ed., OUP

Helen Fenwick, Civil Liberties and Human Rights (2002) 3rd Ed. Cavendish Publishing

Robert Wintemute, Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes (1997) MLR 60:3 May

Mason and McCall Smith, Law and Medical Ethics (1999) 5th Ed.

Geoffrey Robertson, Freedom, The Individual and the Law (1993) 7th Ed. Penguin

Leo Flynn, Gender Equality Laws and Employers’ Dress Codes (1995) ILJ 24, no. 3, Sep. 1995

Aileen McColgan, Sexual Harassment, Sex Discrimination and Unfair Dismissal (1995), ILJ 24, no. 2, June 1995

Clare Dyer, Transsexuals win right to change birth certificates (2002) The Guardian, December 14

Clare Dyer, Transsexuals’ 33-year battle for legal rights (2002) The Guardian, December 10

Clare Dyer, Sex change victory after 30 years (2002) The Guardian, December 10

Transsexuals allowed to marry (2002) BBC News UK, December 13

Transsexual wins right to marry (2002) BBC News UK, July 11

X, Y and Z v United Kingdom (1997) 24 EHRR 143 (1998) 39 BMLR 128

Dudgeon, Judgement of 22 October 1981, A45; (1982) 4 EHRR 149

B v UK 34 D and R 68 (1983); (1983) 6 EHRR 354. A 9237/8

Rees v United Kingdom Eur. Ct. HR, Series A, No. 106, Judgement of 17 October 1986, 9 EHRR 56

Cossey v United Kingdom, Judgement of 27 September 1990. A.184; (1990) 13 EHRR 622

B v France (1992) 16 EHRR 1, [1992] 2 FLR 249

Sheffield and Horsham v United Kingdom [1998] 3 FCR 141

White v British Sugar Corpn [1977] 1 IRLR 121

Corbett v Corbett [1971] P83, [1970] 2 All ER 33

P v S and Cornwall County Council Case C-13/94 [1996] ECR/ 1-2143

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