EU law and Human Rights

In UK, the situation is slightly different. Due to its unique unwritten constitution, there are no concrete laws that state out the rights of its subjects. The various Acts of Parliaments, case laws and Statutes merely state what the citizens are NOT allowed to do rather then what they can. Thus, the citizens of UK have what is called residual liberties that are not to be found entrenched in any legislation. Calls for reform of this sort of old-fashioned law came loud and clear, especially in light of the phenomenal achievements of the ECHR which gave their counterparts across the continent access to a whole multitude of rights which British people can only ASSUME they have.

It was not before long that the growing voices of dissent formed a chorus too loud for the UK government to turn a deaf ear to. Claiming that their liberties being put in such a precarious position meant that it was open to ‘invasion by the judiciary’, citizens demanded for a change. As a result, the steady influence of the Convention’s appreciation of fundamental rights crept into mainstream British culture which inevitably led to the creation of the Human Rights Act 1998 (HRA), an Act which afforded the ECHR further legal effect in the UK. Well, no matter how sweet self-praises of the HRA may sound, reality sings a different tune.

 What the HRA achieved was merely to create an illusion of better protection of rights for the UK citizen with its ‘declaration of incompatibility’. In truth, the HRA was in no man’s land. It is not as comprehensive or powerful as the Canadian Charter, US Amendments or even the German Basic Law, neither was it as flexible or adaptable as the ECHR.

Needless to say, this led to more confusion and ambiguity as to what approach is to be taken when an issue of controversial proportion materialises. Bearing in mind the immense influence of politics in the judiciary notwithstanding the separation of powers doctrine, most judges tended to adopt the minimalist approach when it comes to human rights issues. In a way, this approach advocates ‘borrowing’ the ECHR’s ‘margin of appreciation’ theory and applying it in domestic laws so as not to offend any parties that they have ‘friendly’ ties with. The case of R v Khan bears such an example where the judge deliberately adopted the approach used for Schenk v Switzerland, with blatant disregard for the fact that this was an ECHR case and should thus, be treated differently. With situations like these popping up with greater speed than mushrooms after a rain, how can the HRA be entrusted to handle controversial issues of national proportions then?  

An issue of this nature which has raised more than a few eyebrows and heated debates in recent times is transsexualism. We have all witnessed controversial issues giving the law more than just minor migraine over the course of history such as homosexuality with its long-running battle against discrimination and quest for legal recognition. However, in transsexualism, the law faces a bigger problem with more complexities as it concerns the entire change of gender and lifestyle rather than just sexual orientation.

Transsexuals have always had a long and fascinating history of discrimination from society all around the world. Often abused and frowned upon as being freaks of nature and outcasts, it is not until recently that attitudes are slowly starting to change sympathetically towards their favour, even in UK. However, the same cannot be said about the government.

Notwithstanding growing numbers of public who understand that they are still human beings who should be treated with respect and dignity, courts have always adopted a passive stance where transsexuals are concerned for fear of moral backlash and disdain from the religious communities. Thus, they continue to walk the tightrope, balancing between the preservation of conservative values and the needs of this minority group. When they lose balance and fall over, however, it is mostly to the side of the majority.  

This means that although it is permissible by law for a transsexual to lead the lifestyle of their choice, there are many areas in the law which restricts their fundamental rights and liberties. From a big picture perspective, the legal sphere in which a transsexual lives in is extremely confining and suffocating. They are, sadly, living an illegal existence in a legal world.    

        Many have tried to channel their frustrations and complaints through legal means. However, their efforts proved futile as UK courts, under jurisdiction of the HRA, not surprisingly still maintained its stoic position against transsexuals.  

That is why on the 11th of July 2002, the landmark cases of Goodwin v UK and I v UK made legal history. It was a triumphant victory for transsexuals all across UK and it also proved a very important point; that the ECHR is, indeed, a living instrument which is truly capable of reflecting the changes within society.

This was the first time in history that the ECtHR has actually ruled in favour of the transsexual community in UK. Previous decisions such as Rees v UK , Cossey v UKand X, Y  and Z v UK tends to give one the impression that the Convention has always been reluctant to meddle in the affairs of transsexualism where the UK is concerned, opting instead to apply a wide margin of appreciation when the situation arises.

        In the case of Goodwin, a male to female transsexual called Christine Goodwin alleged that the UK government was in breach of Articles 8, 12, 13 & 14 of the Convention, with references to the discriminatory legal status of transsexuals in the UK, particularly in areas of social security, employment, pensions and marriage.

        Her list of allegations included constant sexual harassment and discrimination at her work place from 1990 to 1992, unfair dismissal from employment due to her gender of being a transsexual, being rejected a request for a new National Insurance (NI) number from the Department of Social Security (DSS) resulting in her having to disclose her real identity to her new employers, not being entitled to a pension at the age of 60 normally accorded to women and instead having to continue paying pension contributions until the age of 65 for men, not pursuing other basic advantages and benefits due to fear of having to disclose her real gender when asked to produce her birth certificate and finally, claiming that UK government had not taken any real efforts to address the suffering and plight of the applicant and other post-operative transsexuals through proper legal reforms. She claimed a breach of Article 12 with respects to her inability to have a legal marriage due to her being treated as her biological sex on her birth certificate.

        The case of I, coincidentally decided on the same day as Goodwin, also bore many coincidences in the facts of the case and alleged violations of the UK government. Besides claiming violations of the same mentioned Articles, the applicant had alleged that the government was reluctant to recognise the legal status of transsexuals by allowing alterations to be made to the birth registration system for post-operative transsexuals. She drew heavily on the dissenting opinions in the Court’s case of Sheffield and Horsham v UK to back her allegations about UK’s attitude towards the rights and legal status of transsexuals.

---