OBSERVATIONS OF THE GOVERNMENT OF THE UNITED KINGDOM ON THE ADMISSIBILITY AND MERITS OF
APPLICATION No. 2339O/94~ INTRODUCED BY RACHEL HORSHAM
0.1 In response to the request
Secretary to the Commission dated 5 September 1994, the
Government of the United Kingdom submits the following
Observations on the admissibility and merits of the above
0.2 Part I of the Observations concerns the relevant facts.
Part II states the relevant domestic law and practice. Part
III deals with the admissibility and merits of the
Application. Part IV sets out the conclusions which the
Government requests the Commission to reach.
0.3 So far as material in the applications is concerned, whether it relates to matters or law or fact, no admission is made save as is expressly indicated in these Observations. The Government reserves the right to make further Observations in relation to these applications.
PART I RELEVANT FACTS
1.1 The Applicant is a British and Dutch Citizen, resident in Amsterdam. At birth in 1946, the Applicant was registered as being of the male sex. In 1992 the Applicant underwent gender reassignment surgery. Without prejudice to any of the legal issues in these proceedings, the United Kingdom will refer to the Applicant as "she'.
1.2 The United Kingdom accepts the Commission Secretariat's summary of the Facts and the Complaints as accurately stating the nature of the issues raised by the Applicant. The main complaints, as identified by the Commission's Secretariat, are as follows
(1) The Applicant complains that she is prohibited from marrying a man. On domestic law relating to marriage, see paragraph 2.3 below.
(2) The Applicant complains that her birth certificate continues to record her original name and sex. On domestic law relating to birth certificates, see paragraphs 2.4-2.5 below.
(3) The Applicant complains that the United Kingdom refuses to recognise her as a woman for various legal purposes
(a) The law of rape, on which sees paragraph 2.6 below. (b) Imprisonment, on which sees paragraph 2.7 below.
(c) Social security and pensions law, on which see paragraph 2.8 below.
(d) An obligation to declare her original sex when entering into an endowment insurance policy or joining a pension scheme, on which see paragraph 2.9 below.
PART II: RELEVANT DOMESTIC LAW AND PRACTICE
2.1 As the Court noted in Cossey v United Kingdom (Judgment of the Court, 27 September 1990, Series A, No. 184, paragraph
16 of the Judgment),
"Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of new names may be subject to certain exceptions For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes a declaration in the form of a 'deed poll' which may be enrolled with the Central Office of the Supreme Court.
The new names are valid for purposes of legal identification and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll".
2.2 As the statement of facts prepared by the Commission's Secretariat records, the Applicant has changed her name after her gender reassignment surgery. That change of name was recorded on her passport issued by the United Kingdom Consulate in Amsterdam in 1992.
2.3 As the Court noted in Cossey (Judgment at paragraphs 23-
25), in English law marriage is defined as the voluntary union of one man and one woman, with a person's sex being determined by the chromosomal, gonadal and genital tests where these are congruent, and without regard to any surgical intervention. See Corbett v Corbett  P 83 (Ormrod J), approved in R V Tan  QB 1053, l063~-l0~4E (Court of Appeal) . Therefore a person born male who has thereafter undergone gender reassignment surgery cannot marry a male. The Applicant expresses concern about whether United Kingdom law would recognise as valid a marriage by her to a man in the Netherlands. In general, English law recognises the validity of a foreign marriage if it satisfied the formalities of the law of the country in which the marriage took place and if each party had capacity according to the law of his or her domicile at the time of the marriage. This common law principle is applied by section 14 of the Matrimonial Causes Act 1973.
2.4 In Cossey (Judgment at paragraphs 18-22) the Court considered the provisions of domestic law relating to birth certificates. The Court explained
"18. ... Registration of births is at present governed by the Births and Deaths Registration Act 1953 ... which requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born
... An entry in a birth register and the certificate derived therefrom are records of facts at the time of birth. Thus, in England and Wales, the birth certificate constitutes a document revealing not current identity, but historical facts...
19. The 1953 Act provides for the correction, by the registrar or superintendent registrar, of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered...
20. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria chromosomal gonadal and genital sex. The fact that it becomes evident later in life that the person's 'psychological sex' is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, ie cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex".
2.5 The Applicant alleges that there have been cases where an entry in the birth register has been amended by reason of gender reassignment surgery. She has produced three birth certificates as certified true copies of the amended entries in the birth register in relation to the sex of the individual concerned. The alterations to the birth register occurred in 1944 (date of birth 1915), 1951 (date of birth 1918) and 1960 (date of birth 1923). In each case, these amendments were carried out in accordance with the relevant provisions of the statute (or its predecessor), and in accordance with the general principle summarised in paragraphs 18-22 of the Court's Judgment in Cossey (see paragraph 2.4 above). In each case, the Registrar General was satisfied (on the medical evidence then available) that an error had been made at the time when the birth was registered, and that at the date of birth the child was not of the sex which had been registered. In none of these cases did the Registrar General allow an alteration of the birth register because gender reassignment surgery had changed the sex of the individual. The principles applied by the Registrar General have remained the same, both before and after the decision of the High Court in Corbett v Corbett  P 83. Of course, medical knowledge has developed considerably in its ability to assist the Registrar General on what was the sex of the individual at the date of birth, and whether an entry in the birth register wrongly recorded the sex of the person at that date. The United Kingdom is unable to supply detailed information about the three people whose entries in the birth register have been relied upon by the Applicant. That information is confidential and the individuals concerned have not consented to disclosure. However, there is material in the public domain relating to Roberta Cowell and Georgina Somerset. The relevant newspaper cuttings are contained in Annex A to this Application. Reports of legal proceedings in newspapers in 1969, and a report from Woman's Mirror in 1966, state that Roberta Cowell was genetically female, and her sex was wrongly registered as male at birth. A report from Chat magazine in 1988 states that Mrs Somerset was not a transsexual, but had been wrongly registered as a boy at birth.
2.6 The Applicant complains that for the purposes of the law of rape, she would be regarded as a man. This was correct under previously existing law see R v Tan  QB 1053, 1063H-1064E (Court of Appeal) However, section 142 of the Criminal Justice and Public Order Act 1994 now defines "rape" as "vaginal or anal intercourse with a person", and so the offence is not dependent on whether the victim is a man or is a woman. In any event, an assault on the Applicant, whether of a sexual nature or otherwise, would be unlawful and would receive a punishment appropriate to the facts of the case. Whether the Applicant is regarded by English law as a man or a woman, any person who carried out a serious sexual assault on the Applicant would normally be sentenced to a lengthy period of imprisonment.
2.7 The Applicant complains that if she were sentenced to a term of imprisonment, she would be held in a prison for men. The prison rules require male and female prisoners to be detained separately. In some such cases, post-operative transsexuals have been placed in a prison catering for the sex, which accords with their new social status. Consideration is given to the individual circumstances of each case of a transsexual sent to prison in order to determine what would be most appropriate.
Social security and pensions law
2.8 The Applicant complains that she is treated as a man for the purposes of social security and pensions law, and so she will have no right to a State pension until the age of 65 (and not 60, as is the case for women). This is correct, applying the principles stated by the case law. See the Judgment of the Court in Cossey at paragraph 26 referring to social security cases. The social security benefits to which the Applicant is entitled are those provided under English law, and/or the law of the Netherlands, by reference to the individual national legislation, or in conjunction with Council Regulation 1408/71/E~C (co-ordinating social security regulations for migrant workers)
Insurance Policies and Pensions Schemes
2.9 The United Kingdom submits that where a person has
Undergone gender reassignment surgery, then there may be circumstances in which it is necessary for another person to know about a former identity so that the other person can check whether the individual has a criminal record, or whether there is other relevant information recorded about that individual. In order for a company to decide whether to enter into a contract of insurance or a pension scheme with the Applicant, it is appropriate for the company to have the opportunity to check the Applicant's history, including her medical history, whether under her present name or under any former name. If the Applicant does not
PART III : ADMISSIBILITY AND MERITS
3.1 In the letter dated 5 September 1994, the Secretary to the Commission invited the Government particularly to deal with the following questions
"Do the Applicant's complaints disclose
i a violation of her right to respect for private life contrary to Article 8 of the Convention?
ii discrimination contrary to Article 14 of the Convention?"
3.2 The Observations of the United Kingdom set out below will focus on the questions put by the Commission, but will also briefly address the other matters raised by the Applicant.
Article 8 of the Convention
3.3 Article 8 of the Convention provides
"1. Everyone has the right to respect for private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
3.4 Article 8 does not require a Contracting State to recognise for legal purposes the new sexual identity of a person who has had gender reassignment surgery, even though a transsexual may be socially accepted under that new sexual identity. The Court so stated in Cossey v United Kingdom (Judgment of the Court, 27 September 1990, Series A, No.
184, paragraph 40) and it repeated this conclusion in paragraphs 46-48 of the Judgment in B v France (Judgment of the Court, 25 March 1992, Series A1 No. 232). therefore, the Applicant has no general right to legal recognition as a woman. In this context, Contracting States enjoy a wide margin of appreciation. As the Court stated in B v France (Judgment at paragraph 48)
"The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism.
It notes, however, in the light of the relevant studies carried out and work done by experts in this field, that there still remains some uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which result are moreover extremely complex: anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed) ; the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation), and so on. On these various points there is as yet no sufficiently broad consensus between the Member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments".
3.5 Whether the State's treatment of a transsexual amounts to a breach of any positive obligation of respect under Article 8 will depend on the application of the fair balance between the general interests of the community and the interests of the individual; This, in turn, will depend on the nature and degree of detriment suffered by the Applicant. (See the Judgment in Cossey at paragraph 37 and the Judgment in B v France at paragraph 44)
3.6 In Cossey the Court concluded that there was no breach of Article 8 by reason of the refusal to issue the Applicant with a birth certificate stating her sex after gender reassignment surgery. By contrast, in B v France, the Court concluded that there had been a denial of the respect due to private life. The Court focused its attention on the practical effect of the treatment of which complaint was made
The Court explained (paragraphs 52-55) that by contrast with the United Kingdom - where a birth certificate records the historical fact as to the person's sex as at the date of birth - in France the civil status document was intended to record current status.
(2) The Court explained (paragraphs 56-58) that bycontrast with the United Kingdom - where a person can change her forenames as she chooses - in France the Applicant was obliged to have all of her identity documents (identity card, passport, voting card), her cheque books, and her official correspondence (telephone accounts, tax demands etc) in the name of Norbert, even though she was a post-operative transsexual who was socially accepted as a female.
(3) The Court accepted (paragraphs 59-63) that because the Applicant was required to have and use these documents in her former male name, and because of the practical effects of this in her everyday life, she was daily subjected to treatment which was not compatible with respect for her private life as was required by Article 8.
3.7 In the submission of the United Kingdom, and by contrast with B v France, none of the complaints made by the Applicant in the present case establish a degree of practical detriment which establishes a denial of respect for the private life of the Applicant. She is able to live a female social role, free from State interference, and with only rare occasions on which she is obliged by the State to reveal the sex into which she was born, and even then for good reason.
3.8 The Applicant complains that her birth certificatecontinues to show her as a male. The United Kingdom draws attention to the matters described in paragraphs 2.4-2.5 above. In Cossey, the Court held (at paragraphs 36-42 of the Judgment) that the failure to issue a fresh birth certificate which shows a person's sex after gender reassignment surgery was not a breach of Article 8, because a birth certificate is a record of the historical facts as at the date of birth. The Court stated, at paragraph 39, that "the register could not be corrected to record a complete change of sex since that is not medically possible". The United Kingdom relies on the Judgment of the Court as answering the Applicant's complaints.
3.9 None of the other matters of which complaint is made by the Applicant involves a breach by the United Kingdom of any positive obligation of respect under Article 8, having regard to the fair balance between the general interests of the community and the interests of the individual. The United Kingdom draws attention to the facts and matters set out in paragraphs 2.1-2.9 above. The United Kingdom has no obligation to recognise the Applicant as a woman for legal purposes. If the United Kingdom is entitled to regard the Applicant as a man for the purposes of the law of marriage and for the purposes of birth certificates, then the United Kingdom is similarly so entitled in relation to social security and pensions law. Nor does the United Kingdom have a duty to prevent questions being asked about the Applicant's past by those persons who have a legitimate interest in knowing such information. A post-operative transsexual who does not want third parties to know his or her biological sex is in a similar situation to that of a person who wishes to keep other personal information confidential in circumstances where the inquirer has no legitimate interest in being provided with that information 3.10 The United Kingdom does not accept that there have been any medical or other developments since Cossev or B v France which should cause doubt to be cast on the conclusions reached by the Court in those cases.
3.11 For these reasons, the Government submit that the Applicantis not the victim of a breach of Article 8 of the Convention.
Article 14 of the Convention
3.12 Article 14 of the Convention states
"The enjoymentof the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
3.13 No issues arise under Article 14 additional to those which arise under Article 8 read on its own. The Applicant has received the same treatment as any other person who has undergone gender reassignment surgery. To the extent that the Applicant complains that she has been differently treated from other people, the United Kingdom has explained above the basis for the treatment of the Applicant in all relevant respects. Article 12 of the Convention
3.14 Article 12 of the Convention provides
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right".
3.15 The Court held in Cossey (Judgment at paragraphs 43-48), following its earlier judgment in the case of Rees v United Kingdom (Judgment o~ the Court 17 October 1986, Series A, No. 106 at paragraphs 49-50), that it was not a breach of Article 12 for English law to prevent a person who has had gender reassignment surgery from marrying a person of the sex which he or she had at birth. In X. Y and Z v United Kingdom (Application No. 21830/93, decision of 1 December 1994), the Commission held to be inadmissible as manifestly ill-founded a claim that Article 12 conferred a right for a transsexual to marry a person of the same sex as the transsexual had at birth.
Article 3 of the Convention
3.16 Article 3 of the Convention states
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
3.17 The United Kingdom submits that if (for the reasons set out above) the treatment of the Applicant is not in breach of her rights under Article 8 of the Convention, such treatment cannot infringe Article 3 of the Convention. In any event, the United Kingdom disputes that any mental distress suffered by the Applicant even approaches the levels at which Article 3 of the Convention is applicable. The United Kingdom draws attention to the Report of the Commission in B v France (6 September 1990, at paragraphs 76-87).
Article 3 of Protocol No. 4 to the Convention
3.18 Article 3 to Protocol No. 4 to the Convention states
~l. No one shall be expelled, by means either of an
individual or of a collective measure, from the territory of the State of which he is a national.
2. No one shall be deprived of the right to enter the territory of the State of which he is a national".
3.19 The United Kingdom has not ratified Protocol No. 4.
3.20 Even if the United Kingdom had ratified Protocol No. 4, there would be no breach, since the Applicant has not been expelled from the United Kingdom.
PART IV : CONCLUSIONS
4.1 For the reasons set out above, the Government requests the Commission to declare
(1) that the claims in this application are inadmissible as being manifestly ill-founded;
(2) alternatively, if and in so far as those claims are declared admissible, that there has been no breach of the Convention.
Deputy Legal Adviser, and
Agent of the Government of the United KingdomDecember 1994
( Note. annexes to this document)