RACHEL HORSHAM v UNITED KINGDOM APPLICATION No 23390/94
RACHEL HORSHAM v UNITED KINGDOM
APPLICATION No 23390/94
A summary of answers to the questions asked by the Commission, in relation to the oral hearing, to take place on the 19 January 1996.
The Commission considers that the complaints in this case raise issues of law and fact.
The issues of law, and fact relating to Art 8, 12 and 14.
1. Article 8 of the convention states: Everyone has the right to respect for his 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 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.
The questions asked, pertaining to this article are. Do the applicant’s complaints disclose a lack of respect for her private life contrary to Article 8? In particular, do the "interference's" of which she complains disclose a sufficient degree of seriousness? To the extent that the applicant may claim to suffer distress, humiliation or stigmatisation from the lack of legal recognition of her gender re—assignment, is there any element of public interest, which outweighs the applicant’s interests? The parties are also requested to address the relevance of the new medical evidence referred to by the applicant in the light of the Court’s comments in B. v. France (Eur. Court H.R., B. v. France judgement of 25 March 1992, Series A 232—C p. 49,para 48)?
What exactly are the facts in this case and what is the relation to law.
The facts are. I am legally a woman. The law has taken its course and made this fact legal within the eyes of the law. This involved medical attestation presented at a court hearing involving the required articles of law for such procedures. This took place in Amsterdam in the Netherlands. From this judicial procedure a verdict was given demanding the change of forenames and the change of my sex status. That verdict given to the Registers of Births in The Hague. After which it was registered in the Central Births Registry. The result of this simple procedure has been notified to all government and social departments where I, as a person, am registered, and all other information, such as previous f ore— names and sex status have been deleted. As that information has no legal validity anymore.
The validity of this new registration is not just for the Netherlands, but valid internationally. In the same manner
That what had been originally registered on my birth certificate was valid until it was amended, and it is that amendment which is now the legal base for all documents of identity, legal and social recognition in society and within the eyes of the law.
This amendment, done through the Central Registry of Births in the Netherlands. It was done to stop unwarranted interference in my private life and affairs, from government sources, legal sources and all manner of social sources. It was done to protect me and allow me the same access to legal protection that any other person enjoys within a society that recognises the rule of law.
On my request to the Central Registry of Births in the United Kingdom for this amendment to be placed in the registers and transcribed on my birth certificate, there was a refusal. The reasons given to me were that there were no provisions within the Births and Deaths Act. I have already shown clear evidence to the Commission that this is not true. The provisions do exist for such amendments to be made and have already been achieved in some cases that have come to light, how many more have yet to be found. All the cases found have one point in common. The age of the people concerned were in their mid to late thirties. It is not possible for these people to have been anything other than transsexuals. Neither could it be said that their original registration was a clerical error in that they were found to have been outwardly the physical opposite to what was originally inscribed, as that would have been realised during their childhood. The indisputable fact is that the use of that particular section of the Births and Deaths Act, (section 29) was discontinued after 1970, the year of the judgement in the Corbett case. Thereafter the judgement of Ormrod was used by legal authorities and socially as a reason why they should not recognise a person's legal sexual identity such as many others and me. But the law still remains intact and valid, which is section 29 of the Births and Deaths Act.
We can see clearly that a government department under set rules, as laid down within the law are prepared to place my legal position, within the United Kingdom and internationally, in jeopardy. In that it gives the law and society in the United Kingdom the right to discriminate against me as opposed to another woman who has all their legal rights recognised.
It also protects the rights of others to discriminate against me, but does not allow me the right to defend myself within the law. It is the results of the actions of the Registry of Births, refusing to recognise my legal status, and defended by the Government of the United Kingdom, which is the prime cause, of my legal and social dilemma now.
It is because of such abuse; I have been placed in an untenable situation. In that it is not possible for me to return to my country and live a normal life. To do so I am forced to relinquish my legal position as a woman, and take up the position of being a man, of which I am not, and can never be.
Such demands as placed upon me have already been the cause of acute distress, which I can only describe as mental cruelty of a malicious nature. To return under such conditions, that they lay down, are humiliating. Especially when it is demanded of me to reveal secret private and confidential medical knowledge to an ignorant uneducated public, which can only result in me being stigmatised publicly and forever treated as an ambiguous person. Neither has the government made any real attempts to educate the public as to the truth concerning what transsexuals are or what a transsexual is. Neither have they made any real scientific research as to the true causes.
Neither has the government put forward any plausible reasons in the use of the phrase "Public interests".
I as a person am not of any public interest, the fact that I underwent specialised medical and surgical treatment because it was regarded as necessary by qualified medical experts that I was female and not male cannot be construed, as reasons for public interest. Nor is my private personal life of any public interest. Neither are there public interests, which outweigh mine. Private personal information concerning my sex/gender status, that may be required from me, is only that which was medically and legally afforded to me and, no other. Unnecessary public demands of a deeper nature are an unwarranted interference in my private life. What is necessary for me to show to a court of law or commission in defence of my legitimate rights, is something totally different.
Neither am I a criminal, neither does my present sex/gender status cause jeopardy to the State or the public.
Here I would like to bring the attention of the Commission to paragraph 36 of the judgement in the Cossey case (16/1989/176-/232) " The court remains of the opinion which it expressed in the Rees judgement (p. 14, § 35). Refusal to alter the register of births or to issue a birth certificate whose contents and nature differ from those of the original entries cannot be considered as an interference."
This judgement cannot be held now correct, as it came about from misleading information that the government presented in the Rees case, regarding the Births and Deaths Act. The Act allows for such changes, and its specific section for this purpose has been called on, on a number of occasions, and to ignore the law regarding a person's legal rights, in such matters is, interference.
Paragraph 38, a, judgement Cossey case. "The requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system for the registration of births, which was designed as a record of historical facts, by substituting therefore a system of documentation such as that used in some other Contracting States, for recording currant civil status".
This certainly was never the true state of the law regarding the Births and Deaths Act. The government was never asked to change its system by the plaintiff, she was asking that they enforce the system already in use, as the provisions already existed within the Act, to have her birth certificate amended
And give her the legal status she required. In this matter her rights were violated.
Again we see how the government deliberately mislead the Commission and the Court, for the Court to have ever come to such a decision. The Births and Deaths Act is the birth of a persons currant civil status. I have already shown documented proof of this to the Commission.
It must also be noted that the United Kingdom have had the legal possibility to amend the birth certificate in such cases of transsexuality long before other Contracting States inserted such amendments into their Births Registers.
Paragraph 38, b, judgement Cossey case: " An annotation to the birth register, recording Mr Rees change of sexual identity, would establish only that he belonged thenceforth - and not from the time of birth — to the other sex. Furthermore, the change so recorded could not mean the acquisition of all the biological characteristics of the other sex. In any event, such an annotation could not, without more, constitute an effective safeguard for ensuring the integrity of his private life, as it would reveal the change in question".
Here we see the point, "constitute an effective safeguard for ensuring the integrity of his private life, as it would reveal the change in question".
An amendment to the birth certificate does ensure such integrity as it can never be known. Unless the enquiring party has knowledge of the original data inscribed in the registry. But this information has no legal value, as the amendment has the legal precedent, and a person in such a position that has to produce a birth certificate, can, produce the short certificate which shows only amended sex and forenames and date of birth. No more is required.
Again it is clear that the Court reached such conclusions from misleading information.
Paragraph 38, c, judgement Cossey case: "Secrecy could have considerable unintended results and could prejudice the purpose and function of the register by, for instance, complicating factual issues arising in the fields of family and succession law".
Such amendment's, are legal, and do have a certain degree of secrecy are not totally secret and they do effect, and have legal validity in family and succession law. There is already public knowledge of this, for example.
The case of Elizabeth Forbes-Sempill, daughter of the 18th Baron Sempill, born in 1912 had her birth certificate amended in 1952 to Ewan Sempill, male, becoming heir-presumptive to the baronetcy of Forbes of Craigievar, a junior title held by Ewan's brother the 19th Baron Sempill. The barony was a rare British title, which can pass through the female line the baronetcy could not. The 19th Baron died in 1965, having sired only daughters, his daughter Anne became Lady Sempill and his resigned brother became the Hon; Sir Ewan Forbes, 11th Baronet. He married his housekeeper become a farmer in the highlands. Here we see also that marriage is also valid in such circumstances.
The idea that, succession rights come under question because of
A change in the birth certificate do not complicate factors in succession law, as the amendment holds legal validity within the law. When such a change does take place, it is normal for that person to give that information to departments such as banks, employment department, government pension schemes, and tax, for purposes only of amending the records, which is private and not public. All previous information concerning sex and forenames must be deleted. This is normal.
In paragraph 40, judgement Cossey case: "In the Rees judgement, the Court, having noted that the United Kingdom had endeavoured to meet Mr Rees demands to the fullest extent that its system allowed - and this applies in the case of Miss Cossey -, pointed out that the need for appropriate legal measures concerning transsexuals should be kept under review having regard particularly to scientific and societal developments ( pp. 17 and 19, § 42 and 47)."
Again it is clear that the government mislead the Court for it to have arrived at such conclusions. Rees was denied his legal rights, after his family presented a statutory declaration for an amendment to take place on his birth certificate, and it was his legal right in the law. Neither can it be said that the government endeavoured to meet the full rights of Rees and Cossey in this respect. Neither did the Government have to keep under review legal measures, concerning a transsexual's legal rights, as they were already enshrined in the law. Neither have the government attempted to keep abreast of scientific developments, concerning, why transsexuals occur. They have done the total opposite and refused to accept valid medical research.
It is clear from the Cossey judgement that this is a tainted judgement that has come about through misleading facts given to the Court by the government and cannot be held as valid case law example for the Commission to refer to.
Since I also hold the Netherlands nationality as well as British, this raises a further question. Does the United Kingdom government demand of me to surrender my British nationality in order for me to enter the United Kingdom legally as a woman, for me to reside there legally as a woman. If this is the case then it means that I would have to live in my own country of origin and birth as a foreigner.
Such a demand is extremely distressful, when I do not wish to relinquish my nationality of origin, since the Netherlands has made no such demands upon me.
There is also another question arising here. Are the United Kingdom government prepared to recognise a Dutch national, born in the Netherlands, who has had a similar amendment to their birth certificate, but not me, based on the fact that my birth took place in the United Kingdom and was registered as such.
There are questions of international law here, concerning a citizen's legal status. It is quite clear that on my entering my own country of origin, having retained my original nationality, I am not able to ask for any assistance from the government of the Netherlands. As then I come under the laws of
The United Kingdom. Even as this may be so, the questions of a person's legal gender/sex status in such a situation arise here.
The manner in which my gender/sex status is regarded outside of the United Kingdom is one of recognition to a legal fact, based on my amended birth certificate. I am also bound under laws that regard me as a woman for all purposes.
Regarding international law I would like to, state that International law has no legislature as opposed to a countries municipal or internal legal system, which concentrates on legislative power in the hands of a few. Because of this some citizens find themselves treated in a negative manner. As international law has an absence of legislative powers it means that states largely create laws for themselves, sometimes for the interests of a few as opposed for the public at large. Therefore it is unlikely that they will create laws which are not in their own interests.
As International law is largely based on custom, by obeying that customary rule, states strengthen the rule. By breaking it they weaken it. Customary law has a built in mechanism of change. So a state which breaks a rule of customary law may find it has created a precedent which can be used against it, not only by the original victim but also by third states, when the wrongdoing state wants to claim the benefits of that rule in the future. Realisation of this usually deters states from breaking International law, but not always.
However, when states break rules of international law, they often attempt to justify their conduct by suggesting a narrow exception to the original rule, in the hope that a narrow exception will not constitute a dangerous precedent. But sometimes that hone is not fulfilled.
The danger is that what seems reasonably sound to one side will often not seem reasonably sound to the other side, particularly if the other side is equally inflamed. Consequently each side may genuinely believe that it is obeying the law and that the other side is the lawbreaker.
The basic principles of all law, (National as well as International) were derived from not from deliberate choice or decision, but from principles of justice, which had a universal and eternal validity which could be discovered by pure reason, law was to be found, not made.
The fact that a ruler, or government, can do what he, likes, to his, own subjects does not mean that he can — either as a matter of law or as a matter of power politics — do what he likes to other states, including the subjects of other states. When International lawyers say that a state is sovereign, what they mean is that, it is independent, that is, that it is not a dependency on some other state. They do not mean that it is in anyway above the law.
As International law has a relation to municipal or internal laws of a state, there are sometimes certain questions that have to be decided by municipal law. Thus in order to determine whether an individual is a national of state X, International law normally looks at the law of state X, provided that
The law of state X is not wholly unreasonable.
However as a general rule of International law, a state cannot plead a rule or gap in its municipal law as a defence to a claim based on International law.
When a rule of municipal law is capable of resulting in a breach of International law, it is the application of the rule, and not its mere existence, which normally constitutes the breach of International law.
There is also the question when to recognise or enforce the judgements of foreign courts. Courts in the United Kingdom are ready to enforce the judgements of foreign courts.
There are points in my case, because of my status as a citizen of two countries, where I have to refer to International law. These points also refer to Commission case law regarding other cases of a similar nature, which have come before the Commission.
Since the government is aware of existing law, in their internal or municipal law, regarding amendments to the birth certificate, and is denying other citizens and me the rights that are already afforded, this is breaking a rule of customary law, and I am a victim. But not only am I a victim there are others who have fallen victim, notably April Ashley.
As the government mislead the Commission and the Court, in the Rees case, concerning the real status of the law regarding amendments to the birth certificates, resulting in the plaintiff Rees becoming a victim. And, as the government used the same statements for the Cossey case, the plaintiff Cossey became the second victim.
These judgement's, by the Court, were used by the plaintiff B, in B v France. The information concerning the true status of the English law was not correct. This was unknown by the plaintiff B, but she used it as a reason showing the difference between the two states, and the government of France attempted to use it as a reason why they should not grant the demands of
B. We can see clearly here how the breaking of customary law can create a precedent that can be used by another state, to break its own customary laws.
It was stated by the court in the Rees case para 42 (a) " The governing authorities in the United Kingdom are fully entitled, in the exercise of their margin of appreciation." This margin was the result of the government praying for a narrow exception to the original rule, hoping that a narrow precedent would not constitute a dangerous precedent. Clearly it has the same reasoning was used in the Cossey case by the Court.
But in the B.v.France case the attempts to use the judgement of Rees and Cossey, by the government of France, such hopes were not fulfilled.
But then, what of the victim in such a situation? In this situation that I present, I am the victim. The victim of the judgement by the Court in the Rees and Cossey cases. A judgement, that came about from misleading information, deliberately given to the Commission and the Court by the government of the United Kingdom. The government has used that decision as one
Reason not to recognise my true legal status as a woman, secondly refusing to implement statute law and refusing to accept that they have already broken a customary law. This is not acceptable in law.
Since the legal principles of customary law have already been established and written, concerning amendment to the birth certificate, and are valid. When used they are internally and universally valid. So then must it be recognised that since a court of law, in my case, has already demanded that such changes must take place and the demands have already been met in the Netherlands, then that must also be recognised by the United Kingdom. States are not above the law. Here we see the United Kingdom attempting to place itself above the law.
Since I am in the position of holding two nationalities, an English national by birth and by naturalisation Dutch.
Then it can be said that International law looks at my nationality status as English on English soil. But that is not in question here.
What is in question is my legal status as being a man or a woman. Since it has been decreed by medicine and accepted by a court of law that I am a woman, and legalised within the law, the question changes. The United Kingdom has the provisions within the law to accept and amend my status within the Birth Registry. But they refuse. This refusal is unreasonable within the realms of International law regarding a person's legal recognised status. Neither can the government plead that there is a gap in its municipal law as a defence, as I have shown to the contrary.
The United Kingdom also within its legal system, do, accept and recognise judgements of foreign courts. But they refuse to recognise the judgement in my case, and no reasonable grounds have been given or shown.
I now come to the question of the relevance of the new medical evidence I presented, as opposed to that which was discussed in B v France and the Courts comments on that information.
I must note here that the Court stated in the para. 48, B v France, judgement of 25 March 1992, "The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism."
What did the Court consider? According to the Applicants Memorial in B v France Cour. (91) 59. The applicant gave an example of feminised testicles. Turners Syndrome, and experimentation that was done on rats with injections of oestrogen. Chromosome differences and experiments on rats have been known about for years. But no medical evidence was given.
The Court stated, " 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 the legitimacy of surgical intervention in such cases is sometimes questioned."
I have shown in the medical evidence that was first presented in my application dated 12 January 1994 and received on 17 January 1994 at the Commission, that there is new medical
Evidence to support that a transsexual is someone who is born with a biological condition, that defies the supposedly normal criteria of a person's biological sex/gender, as accepted by lay people. In my observations, in reply to the observations presented by the United Kingdom, dated 17 February 1995, I sent conclusive biological findings that further updated information I sent in my original application. At the time of presenting these findings there was no publication. Publication came on the 3rd of November 1995 in the English science magazine " Nature ", and on the 2nd of November 1995 it was publicly shown on Netherlands Television and on the 3rd of November 1995 became a large news item in the newspapers in the Netherlands. This information was presented earlier in this case, as Prof. Gooren was one of its authors. He was also my Endocrinologist during my treatment, and he is also standing as a medical witness and the best person to explain this evidence to the Commission, so that the Commission may have a better understanding of its scientific and legal ramifications.
However, at this oral hearing I shall give a summary of the medical evidence I originally presented before asking Prof. Gooren to explain further, as he is the author.
In my original evidence I have shown why transsexualism has remained an enigmatic problem to biologist, as it defies the naturalness of being a man or a woman. The biological principles of sexual differentiation, and how it has become clear over the last 150 years that the process of differentiation into male and female is a multistep process in mammals, in distinctly different steps. Each step characterised by the biopotentiality to develop into male or female, each having a critical development phase, which is called a window of time. Sex chromosomes established at conception, to the development of testis or gonads. The exception to the rule of androgens determining the fate of sexual differentiation, the Mullerian inhibiting factor a non steroid testicular product which suppresses the development of the uterus in a male foetus. How it has already been concluded that the same anatomical principles apply to the human as well as most mammalian development, but less information was available on the sexual differentiation of the brain.
Then animal models in the study of transsexualism, and cross —sex — hormonal experiments were found to be demonstrable in the biological underpinning of where transsexualism might lay. But it was found that there were a number of objections, as certain animal behaviour as coitus could not be said to be attributable to human behaviour, since gender identity has a parallel to language development, which cannot be attributed to animal behaviour.
Studies, which were done on Blood Hormone Levels and their relevance to gender identity role, but were found to play an unlikely role in gender Dysphoria.
Hormonally induced sexual differentiation of the brain in humans. This involved research into the effect of hormones on the brain. Lutoneising hormone levels (LH) and response to Lutoneising hormone releasing hormone (LHRH). The response being termed oestrogen feedback.
Research having also being carried out on primates, but it was found from Prof. Gooren's research that the neuroendocrine regulation of LH secretion was not different between transsexuals and non-transsexuals.
The effects of an atypical hormone environment, androgen and or oestrogen excess in women and androgen deficiency or insensitivity in men, on the development of gender identity in the human.
Here we see the androgen insensitivity syndrome AIS; those born 46 XY, have testis produce testosterone, born with female or ambiguous external genitalia, not often identified at birth and reared as girls. Only when menarche fails to occur in teenage years do they come to the attention of the medical profession. These people develop a female gender identity and sexual orientation to men. Gooren and Cohen—Kettenis (1991) found an exception to the rule. The study of Lewis and Money (1986) comparing subjects suffering from two syndromes, AIS and the Mayer-Rokitansky-Kuester syndrome. The latter characterised by partial atresia of the vagina, uterus and fallopian tubes, 46 XX chromosomes and ovaries fail to menstruate. No difference of erotosexual behaviour between the two syndromes. All subjects were exclusively heterosexual women.
Also there is Congenital adrenal hyperplasia (CAH). These subjects have a corticosteroid deficiency. The condition if diagnosed can be treated successfully with corticosteroid hormones. It occurs in both sexes. In girls they have a female gender identity but act more tomboyish. Some CAH subjects with a 46XX chromosome pattern and ovaries have been assigned as boys and have successfully developed a male gender identity.
Morphological sex differences in the brain, in Human Studies.
It has been a major question of sex differences in the human whether or not animal data can be extrapolated to the human. Gender identity, the recognition of the self as female or male, cannot faithfully be studied in animals, since animal studies can only rely on sexual behaviour. Frank Beach (1979) cautioned against extrapolation from animal to human sexology, as a certain animal model may only apply to that one species. Similarities in the appearance of behaviour in certain species are not necessarily manifestations of the same phenomena. In humans there are no exclusive masculine or feminine motor patterns of copulation. Therefore extrapolation of animal behaviour to the human as regards gender differentiation of copulatory behaviour requires caution.
Swaab & Hoffman (1984) showed well-documented sex differences in brain weight, which cannot be entirely accounted for, by a sex difference in body height. Further analyses revealed a sexual dimorphism in relative brain size from the second year of postnatal life onward and persisting throughout life. The sexually dimorphic nucleus (SDN) of the preoptic area of the hypothalamus as first described by Gorski et al (1978) in the rat, is the most conspicuous morphological sex difference in the mammalian brain. Swaab & Fliers (1985) demonstrated a SDN in the preoptic area of the human hypothalamus. Morphological analyses of the human SDN revealed that the volume Is more than twice as large in adult men compared to women and
Contains twice as many cells. The sex difference Swaab & Fliers
(1985) Observed, was not present in other hypothalamic nuclei. The magnitude of the sex difference was found not to be constant over the life span. In mid pregnancy the SDN can be distinguished in the human foetal brain. The cell number of the SDN at term birth is not sex dimorph. In the first postnatal years there is rapid increase in cell numbers in both boys and girls to the age of 2 - 4 years. After this age the human SDN becomes sex differentiated. Due to decrease in cell numbers and volume, the SDN becomes smaller in girls than in boys in whom these remain unaltered to the age of 50 when cell numbers decline.
Other sex—dimorphic nuclei. Allen et al (1989) described two other cell groups (INAH-2 and-3) in the preoptic anterior hypothalamus that was larger in male than female brains. Le Vay (1991) could not confirm the sex difference in INAH-2 but did find a difference in INAH—3. Another sex difference described by Allen & Gorski (1990), what they called the
"Darkly staining posteromedial component of the bed nucleus of the stria terminalis", an area of which the volume was 2.5 times larger in men than in women.
The suprachiasmatic nucleus is considered to be the principle component of the mammalian clock mechanism generating and coordinating a variety of hormonal, psychological and behavioural circadian rhythms (Rusak & Zucker, 1979). Its shape, but not its volume, was shown to be sex—dimorphic in the human brain. The shape is more elongated in women and more spherical in men.
Gender identity and sexual orientation are two different properties of a subject. Sexual orientation towards the same sex does not imply a cross—sex gender identity. And vice versa, subjects with a cross—sex gender identity may be sexually orientated to either sex.
Morphological data on the brains of transsexual are limited. The findings in three male—to—female transsexuals were reported, (Swaab, Gooren & Hofman, 1992). Two appeared to have a large SCN with high cell numbers (resembling the pattern found in homosexual men) and a small sexually dimorphic nucleus (SDN) with low cell counts, (resembling the pattern found in women. The third transsexual, however, revealed exactly the opposite, a small SCN and a large SDN.
Further studies on the morphological data on the brains of transsexuals, showed very clear evidence that a nucleus in the brain is very different in men and women, and that male to female transsexuals show the female characteristic. It is the first biological evidence which shows that transsexualism has a biological foundation, and not, as some die-hards of the old order contended, that the transsexual was someone who suffered from psychological delusions.
The discoveries of Swaab and Gooren also revealed that there was a difference between the nucleus of the brain in heterosexual men and homosexual men. The nucleus in homosexual men was larger. The nucleus in the brains of all five male to
Female transsexuals were the same as the nucleus in the brain of a woman. It was also found that sex hormones in adulthood do not influence the size of this nucleus. Since the brain is the seat of consciousness of the human being as it is there that we are conscious of ourselves, of what and who we are. It must also be accepted, that the law can no longer disregard the transsexual in the manner of forcing upon that person a legal sexual identity that the person was never really born with and is unable to accept or live with. In effect a transsexual is one of the inter-sexes. It has already been realised that a person only becomes aware of their gender at around the ages of 4 years. It is also known through research studies that transsexuals can relate back to the age of 4 when the first realisations of their predicament began, i.e. my body is wrong, I am a girl not a boy, or I am a boy not a girl. On the research findings as to the percentage of male to female transsexuals born it is estimated at 1:20,000. On female to male transsexuals it is estimated at 1:30,000. On abase that there are 55 billion people in the world we can see an estimation of male to female as 1 million 2 hundred and fifty thousand, and of female to male 100,000. In total we are looking at 1 million 3 hundred and fifty thousand transsexuals in the world. Can those involved with the rights of man state that such an amount of people have no human rights because natures biological processes did not create a 1 hundred percent, and denying them the simple rights every other person takes for granted. I think not.
Since the Court was never offered any real medical evidence in the Rees and Cossey cases, except that of Dr Dewhurst who stated. "It might help to understand the medical approach to the management of transsexualism if I indicate that it is a disease, the cause of which we do not yet know". I can only say now, that it cannot be held now by the Commission that such statements have any validity in the light of what research has found out, and has already been presented to the Commission.
I would now like Prof. Gooren to explain in much better details, what this information means on a scientific level.
After which I shall continue with the rest of the answers, to the questions.
The Commission asks; " does the criminal law adequately protect a male to female transsexual."
The direct answer to this is a simple no.
The question regarding the criminal law adequately protecting a male to female transsexual in this instance is connected to the crime of rape.
Under English law, as in most cultures, the crime of rape has been confined to the act of forced vaginal penetration, upon a woman by a man, without her consent. In some circumstances a similar act by one woman upon another is also regarded as an act of rape.
A similar act by one man against another, where, another forces anal penetration upon one man, has always been regarded as an act of buggery. The same act forced upon a woman, by a man is also buggery, but at the same time is
Regarded as an act of rape. Whereas against another man, sexual assault and buggery is the recognised offence under the law.
Section 142 of the Criminal Justice Act 1994, concerning sexual offences, relates solely to the addition of the clause; " It is an offence for a man to rape a woman or another man." and the clause, " Male rape ", has been added to the offence of buggery.
Little has changed the original Sexual Offences Act of 1956. The offensive act remains but makes a dividing line of what constitutes an act of rape upon a man or a woman. Under English law the present legal definition of a man is someone who was assigned to that gender at birth, solely on the appearance of the genitalia and no more. If that is found to be incorrect at a later stage, it is not accepted that the person was never male and the law at present regards that person as a male until their death, and continues to do so in records of death, whether it is true or not.
The same applies to a woman, based solely on the appearance of the genitalia.
This position now within the law has only been in existence since 1970, and was created by the decision of judge Ormrod in Corbett v Corbett. But that decision cannot be held to be legally valid, as the Corbett case was no more than a petition for a declaration of nullity of a marriage, not a decision as to the legal status of a person's sex/gender. The question of a persons sex/gender as recognised by the medical world, was overruled by Ormrod, who was not a recognised authority on this matter.
At the time of that judgement, there had already been a Commission sitting for some time studying this issue, led by (Judge) Lord Scarman. The Commission came out with its first report dated 27th October 1970 and a final report dated 3rd December 1970. In this report, it was decided that their report overruled the judgement of Ormrod, in Corbett.
Since the government of the United Kingdom rely heavily on the Corbett decision, as to how they consider a persons legal sex, and that decision was overruled by the Scarman report. Their use of Corbett as case law in what constitutes their legal recognition of a person's sex cannot be said to be valid. It is questionable. Just as their medical, scientific statements presented to the Commission and the Court in the Rees and Cossey case is questionable.
This question then arises in the criminal law, regarding protection of a male to female transsexual, particularly in cases of rape.
Since at the moment, they recognise a persons legal sex as that originally inscribed on the birth registers and birth certificate, and no amendment to that sex as legally binding, then under the Sexual Offences Act 1956, and the Criminal Justice and Public Order Act 1994, section 142, a person
Regarded, as a postoperative male to female transsexual, can be raped.
When a man commits an act of rape upon a woman, he judges his victim by outward appearance. His sexual aggression is directed at her genitals, the vagina.
It would only be after the act was committed, and he was apprehended and knowledge came to him and his counsel, that the victim was a post operative transsexual, male to female, and legally within the eyes of the law regarded as a man, for all purposes, he would realise himself to be in a position of not having committed rape within the eyes of the law. Only a lesser charge may be brought against him, such as sexual assault.
The only instance when in such circumstances the aggressor may be guilty of an act of rape is when he commits an act of anal penetration. Only then within the eyes of the law would he have committed an act of rape.
It is highly unusual that any man who is intent on raping a woman seeks his satisfaction by an act of anal penetration instead of vaginal penetration.
A judge in case of rape of a person considered transsexual would decide to use Ormrods decision in Corbett. "That vaginal penetration of a transsexual must be regarded as anal".
To what lengths must a man go to deny having committed an abominable act of forced vaginal penetration on an unwilling woman, shows the sordidness of Ormrods decision and its abusive use by the United Kingdom government, its judicial and legal system and the public.
As Terence Walton wrote in the New Law Journal November 25 1994. "In the light of present medical knowledge the corpse of Corbett v Corbett must be buried by judges or by statute and without ceremony, and that quickly."
It is not the Sexual Offences Act of 1956 and subsequent amendments that are in question here, but the fact that any transsexual, after surgical intervention, is refused legal recognition of their sex that the medical world recognises them to be.
This refusal is not just a refusal to recognise, their sex/gender status, but also a refusal to enact section 29 in the Births and Deaths Act. That enables that person to be legally recognised as not belonging to the male sex, but the female sex, and protecting that person from abusive use of the law. In this instance, full protection within the law, when they may be unlucky enough to be the victim of rape.
In my position I am legally a woman, and have already presented the legal evidence to that fact. This legality is recognised internationally and any reckless act of a sexual nature forced upon me by a man is regarded as an act of rape.
As a woman I attract men, and not all of those men are nice. There are times when I do not feel safe on the streets. If the law in the United Kingdom refuses to recognise or protect me, must I on my return there, live in a bunker and close myself off from society as if I did not exist.
It is the government's refusal to recognise my legal status and in doing so is wilfully placing me in jeopardy on my re-entering that territory. A very poignant fact that I can be legally
Raped, and the law does not protect me.
Regarding imprisonment. Since the law refuses to recognise a transsexual as still belonging to the sex as originally described in the birth registers and subsequently on the birth certificate, so does the law recognise that person during a court process where civil or criminal charges may be brought against that person. If it is decided that a conviction may take place, and a period of imprisonment may be ordered by the judge. It is up to the judge as to where that person may be placed. There are documented cases where post-operative male-to-female transsexuals have been placed in prisons for males. Only sometimes it can occur that the person may be placed in a prison for women, but very few. Pre—operative male to female transsexuals are placed in prisons for males, regardless as to how far the treatment has already gone. There was a well-documented case of one pre—operative male to female transsexual, Joanne Wary. Who was already physically female, as her treatment had progressed to the stage where there was no turning back. But she had not yet been operated on. She was incarcerated in a prison for men. First she was placed in the hospital wing where she was raped by other male prisoners, after that she was placed in solitary, where she was sexually abused by prison guards. The prison doctor repeatedly asked the prison doctor of a, women's prison for her to be transferred. The answer was, "no, and I’m glad I don’t have that problem here." The BBC Television broadcast a programme about this particular case in 1995.
Since this practice continues it is clear that transsexuals face not only non- recognition of the legal status that should be granted to them but humiliation and stigmatisation as well.
In summary the United Kingdom government has shown that it is prepared to place me in a position where it demands that my private life is open to public scrutiny, resulting in distress, humiliation and stigmatisation and it is very clear that my rights under Article 8 have clearly been broken.
Article 12 of the Convention
Under this article the question asked is: "Do the applicants complaints that under domestic law she is unable to marry a man (of biological origin) disclose a violation of her right to marry guaranteed under Article 12 of the Convention?
Article 12 of the convention states.
"Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise this right."
The question here stipulates (of biological origin). The reference of biological origin, concerning men and women, must be answered in itself. All men and women that we speak of here are of biological origin. If they were not of biological origin, then of what origin are they?
The world of medicine and medical research that involves
Itself with the human being, involves itself with biological
People. Biological pertains to life, living tissue, produced by physiological means, affected by living organisms or by enzymes. It is the demonstrable process of existence in which we find agreements and disagreements.
The biological process of physical means of reproduction and its consequences has already been shown not to be 100% correct in every human being. It has clearly been shown that in rare cases it can go wrong, causing anomalies, which by physical sight at birth cannot be detectable and in the rarer instances will never show physical signs. The only signs occurring are those verbally expressed, and outwardly expressed. In that there is a clash between the physical person and the inner knowledge of what and who they really are. And the outward expression, in that they do not express themselves as what they were assigned to at birth. In this instance their sex/gender.
It has already been shown, morphologically, that there is a biological link, cause to this anomaly. That biological link demonstrates that a male to female transsexual was never supposed to have been male, but female.
Since this is fact, marriage cannot be denied on grounds that because one partner may have been registered at birth as male and later is seen to be female. That marriage to a man born male, with no biological anomalies is forbidden, and if such a marriage takes place, it cannot be regarded as a marriage between persons of the same sex.
A male to female transsexual after surgical intervention cannot be regarded as a man, but a woman, and must have the same rights as any other woman. She cannot marry another woman.
In this context we must relate to the question concerning Article 12. " That men and women of marriageable age have the right to found a family." But what exactly is marriage in this context. Marriage is a legal contract between a man and a woman, in which both have responsibilities toward each other. These responsibilities are to live in harmony with each other, the responsibility of sharing the burdens of the financial aspects of the protective roof over their heads. Within this bond arises the question of children. But it can be so that not every man is able to beget children or every woman is able to bare children. These circumstances are not unusual, and where they arise it is usual for married men and women to adopt children, if they so desire.
The responsibilities of the marriage contract increase, as children have to be loved, nurtured and fed, so that they may grow into responsible adults. But then the very basis of this relationship must be one of love for each other, that is its hard rock foundation. Without that, it crumbles very easily, when, the reality of the burdens of responsibility surface.
There are also questions of inheritance that arise, but when the marriage bond is legal, so then are the issues of inheritance governed by that legality.
Article 12 further states: " according to the national laws governing this right." The laws of most countries in this respect are similar in that they demand only a man and woman
May enter into a matrimonial contract. In the United Kingdom it is no different. Since the biological position in this question has been answered a post operative transsexual cannot be regarded as ever having been truly a member of the sex to which they were assigned to originally after their birth. It must be seen that at the time of their assignation, it was a mistake, as it will emerge later as the person begins to grow. If those, who make the laws, concerning this most fundamental part of a person's life, refuse to accept the validity of proven medical science and progress. Then the lawmakers are failing in their duty to acknowledge recognition of scientific facts and place law into the quagmire of superstition and home made myths. Such a path dangerous is and leads to human suffering, which can be regarded as wilful.
The position then of a post-operative transsexual must be regarded as being legally of the sex/gender to which they have later been reassigned to. It is only natural then that Article 12 must recognise human factors in it-self. That a transsexual in this position is no longer a transsexual, but a woman or a man and be afforded the same rights as afforded to other men or women. To have the natural right to marry any man or woman they choose and found a family.
In my position I am legally a woman. That legality conferred by a court of law and all subsequent rights accorded which includes marriage to a man and not a woman. In my position law forbids marriage to another woman. It is only the United Kingdom, which refuses to recognise this fact, no one else. Neither has the government shown any reasonable reason in their refusal of this recognition. I have clearly shown that they have refused me the use of the law to claim my right to my legal recognition, section 29 of the Births and Deaths Act 1953, which is in force as the law of the land regarding this.
I have already shown the Commission evidence that marriage by those whose birth certificates had been amended, was allowed and legally accepted and recognised within the law. In that, after the amendment to the birth certificate from their originally designated sex to the opposite, was legally recognised. The Marriage in particular of Georgina Carol Turtle to Christopher Walter Henry Somerset in 1962, in the Parish Church of St Margaret, Westminster. It has already been shown that Georgina Carol Turtle was originally George Edwin Turtle, of the male sex and that the amendment took place two years earlier before the marriage.
My demands to the Commission of Human Rights under Article 12 must be seen as valid in the light of my legal status as a woman and the medical evidence I have presented. If those who are the guardians of the observances of the Articles of the Convention of Human Rights, by those countries who have signed the Convention, are prepared, not to recognise the lawfully given rights of a citizen of one of those countries, then the very basis of Human Rights as declared in the convention and their meanings are questionable.
In my legal position as a woman, my legal rights to marriage,
And that marriage being legally recognised, as guaranteed under Article 12, are clearly being violated by the United Kingdom government.
Article 14 of the Convention
The enjoyment of 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.
The Commission asks:
Can the applicant, a male to female transsexual claim to be the victim of discrimination either.
1. In respect of annotations to birth certificates made in other cases?
2. In respect of treatment in employment, social security and National Insurance in that she is not being treated as being a biological woman?
In particular, can the applicant claim to be in an analogous situation to either category of comparison?
The situation I have presented particularly concerns sex status and birth status, two distinct statements that are analogous to each other.
Since I am legally a woman, my status upheld by a court of law, with medical attestation, and that status legally inscribed on a new birth certificate, that status is my legal status for all legal and social purposes. The government of the United Kingdom has chosen not to recognise my status or its legality, especially on my returning to the United Kingdom, my country of origin and birth.
The reasons presented by the government of the United Kingdom are not reasons relating to statute law. Their reasoning is based on case law, from Corbett, which I have shown to be questionable, and the Courts decision in Rees and Cossey, which came about through misleading statements from the government regarding the true status of the law. The Births and Deaths Act, section 29. Which is statute law and statute law over—rules case law.
Since, I have furnished proof of this to the Commission. That birth certificates have been amended, prior to 1970, and no changes or amendments have been made to the Births and Deaths Act, regarding this situation, it is clear that section 29 is still the valid statute law by which such amendments are made.
It shows clearly that the governments claims that the birth registers and the birth certificate is an historical document that cannot be changed, must also be seen as untrue and their statements misleading.
It is clear that if they wish to regard it as an historical document, then they must also accept the fact, that if such an historical document has proved to be incorrect, then it must be open to correction. This has been shown to be also true in the evidence that I have shown to the Commission.
The government presented newspaper statements, concerning two
Of the persons whose birth certificates were amended. One of the statements reads, that Roberta Cowell, formerly Robert Cowell, held a commission in the Royal Airforce, as a fighter pilot.
I will state here, that anyone who joins the Armed Forces in the United Kingdom. Undergoes a stringent medical examination on entry, and any physical anomalies that would show this persons sex as being questionable would have been immediately noticed, and further examination would have been required before entry as a fighter pilot was accepted. Example atrophied genitalia. But this could not have been so, as this person was passed as male, and fit enough to enter service as a fighter pilot. Whether this person felt that they were female and not male is another question. But what this points to, very clearly, is that this person suffered at some time before that particular time, or after, from gender dysphoria. And a person who suffers from this kind of dysphoria is termed by authorised medical specialist as a transsexual or an inter-sex. There is no evidence to show any other, and medical and surgical treatment was already the practised treatment for this, at that time.
At some time later this person underwent hormone treatment and surgery, and the birth certificate was amended under section 29 of the Births and Deaths Act. There was nothing unusual about this. Since that amendment, she is allowed to keep her private medical background secret. On demand of a copy of her birth certificate she only has to produce a short certificate, which shows her as born female, with female forenames. She has all the legalities afforded to any other woman.
The question asked by the Commission to me. Can I be the victim of discrimination on (i) In respect of annotations to birth certificates in other cases? The answer is, " Yes. I have become the victim of discrimination, as a result of judgements of others in the past, that had no legal and medical foundation." I underwent treatment that was no different to that what those people underwent, whose birth certificates were changed.
In my case, medical testimony was presented to a court of law. The court decreed that my first names be legally changed, and that my sex status be changed to female. On the demand of this a new birth certificate was issued. Recognition of this, was refused by the head civil servant of the OPCS (Office of Population Census Surveys) and denial of the legitimate use of section 29 of the Births and Deaths Act. It is the refusal, by the agent of the Government, of the United Kingdom. Denying recognition of my legal status. Denying recognition, of signed medical documents and the court order. Thereby, placing me in a position, where I can be legally and socially discriminated against. Which is illegal, and contrary to the regulations as set down within the Births and Deaths Act. Section 35, Offences relating to the register. (a) "If being a register he refuses or without reasonable cause omits to register any birth or death or particulars concerning which information has been tendered to him by a qualified informant and which he is required by or under this Act to register".
This refusal is an act to incite discrimination against me on
Grounds of my sex and birth status, in that what was originally recorded in the registers, concerning my sex/gender status was incorrect, and found to be so, later by medical experts. The annotations to my newly acquired birth certificate from the government of the Netherlands, concerning me in this respect are no different to those that I have shown concerning others, whose birth certificates have been annotated in the same manner, for the same reasons.
I go now to the next question.
(2). In respect of treatment in employment, social security and National Insurance, in that she is not being treated as a biological female?
The ground I have already covered in the first question covers this question, in that there is a direct relation to it.
As I have stated previously, any of the people, whose birth certificates I have shown, that were amended, when required of them to produce a birth certificate for a super-annuation scheme, need only show a short form of the birth certificate. This will show that they were born female, and it is accepted as such.
If I have to produce my birth certificate, (my English birth certificate) for an employer in the United Kingdom for the same purpose, it would clearly be seen that no amendment was made, in the registers of births in the United Kingdom. The consequences being, that an employer has at that point the right to dismiss me, for what they would Constitute, that I told a lie. That accordingly all money paid into a super-annuation scheme for an old age pension could not be paid out until I was 65, as I would be legally regarded as a man. Whether or not I show my birth certificate, as recorded in the Netherlands would not alter this; they would not regard this as legally binding.
On my return to the United Kingdom I am forced to disclose information to government employment agencies, social security and National Insurance that my legal status is male, when in reality, and fact, it is female. The fact that I am recorded as male in the United Kingdom and refusal has been made to change this, all legalities concerning this aspect of my person will remain male.
The idea that a person is treated as a female, does not oblige, employment, social security and national insurance departments, to legally recognise that person as female, as they would recognise another female whose birth certificate was originally recorded as such. The only time when they would have to recognise a person in my position as being legally female, is when there has been an amendment made to this
Effect in the registers of births. To know this they could only find out by knowing, that persons original forenames.
It is clear. That refusal from the department of the Registers of births to recognise a legal verdict and demand by a Court of Law. To inscribe the demands of that verdict into the Registers of Births in the United Kingdom, and supply a short birth certificate, showing only my new forenames and sex status, as has been afforded to others in my position, shows a deliberate act of discrimination against me as a person.
This act on their part is also contrary to recommendation 1117 (1989) of the Parliamentary Assembly of The Council of Europe para. 4: "Believing that account of the changes brought about should be taken in the transsexuals civil status records by adding such details to the original record so to update the data concerning sex in the birth certificate and identity papers, and by authorising a subsequent change of forename".
5: "Considering that a refusal of such amendment of the civil status papers exposes persons in this situation to the risk of being obliged to reveal to numerous people the reasons for the discrepancy between their physical appearance and legal status".
11: a. "the reference to the sex of the person concerned is to be rectified in the registers of births and in the identity papers".
c. "The persons private life is to be protected".
d. "All discrimination in the enjoyment of fundamental
Rights and freedoms is prohibited in accordance with Article 14 of the European Convention on Human Rights".
The situation of my legal sex/gender status is analogous to those whose birth certificates have been amended. In that the law recognises their social and legal status as female, and recognises their female rights as any other female whose rights are legally recognised. The same as my legal sex/gender status, which has been amended, through lawful means, deserves no less.
To regard me as a female anywhere else in the world except my own country of origin and birth, shows a deliberate act by the government of the United Kingdom refusing to accept recognition of the law, fact and medicine. It is clear that my rights within Article 14, concerning sex and birth status are being violated.
Mr Henri Brandman
43 Queen Anne Street
London WI M SPA
December 18, 1995
Dear Mr Brandman,
At the request of Ms Rachel Horsham I supply you with the latest scientific information on transsexualism. Traditionally it has been assumed that transsexualism is a psychiatric or a psychological phenomenon since on medical examination no evidence of a biological substrate could be found. This has changed of late.
Sexual differentiation, the process of becoming men or woman, or sometimes in between, is a process, which takes place in a number of steps. Each step is characterised by the bipotentiality to follow a male or female course of development, Normally all steps are in agreement with either a male or a female course of development since the preceding step directs the following step along either male or female course of development. But occasionally crossing-overs from one course to the other occur which are termed inter-sexuality or pseudohermaphroditism.
Since the beginning of this century It has been found in experimental animals that the sexual differentiation process Is not be Complete with the formation of the external genitalia, the criterion by which a newborn is assigned to one sex or to the other. Since 1985 a number of sex-dimorphic brain structures have also been found in the human. Of one of these structures, the sex-dimorphic nucleus it could be shown that the difference between the two sexes manifests itself only after the age of three years. In a recent publication in Nature (vol. 318 pages 68-70. 2. November. 1995) It was reported that the bed nucleus of the stria terrminalis is sex dimorphic and that this brain structure In male-to-female transsexuals shows an anatomical structure characteristic of women, With this observation the scientific position Is now defensible that transsexualism must be viewed as a form of inter-sexuality or pseudohermaphroditism. In intersexuality or pseudohermaphroditism a number of the biological criteria are of the one sex and a number of the other. In these cases it is an accepted practice in medicine to assign a person to that sex in which he/she will function best. This leads to the view that transsexuals must be given the some medical opportunities and the same legal rights as are given to other cases of inter-sexuality or pseudohermaphroditism
Professor Louis J G Gooren, Hospital of the Vrije Universiteit, P O Box 7057
1007MB Amsterdam / the Netherlands Tel +3120 444 0536 or 444 4444 pager 199 fax +31 20 444 0502
e-mail firstname.lastname@example.org net