Many believed that Article 8 would be interpreted more widely following the introduction of the Human Rights Act 1998, but case-law has not supported this view23. Some argue that the Government's failure to recognise a change of sex was a breach of Article 824. Finally, in 2002 the Goodwin ruling of the European Court of Human Rights re-defined transsexuals' right to respect for a private life to include legal recognition for a change of gender. Later in 2002 the British Government announced legislative reform along the same lines.
Analysis of the cases which lead to this breakthrough follows. Changing law: Four years prior to the announcement that legislation will be introduced to allow alteration of the gender on transsexuals' birth certificates there was a study of 37 Member States of the Council of Europe. It found that twenty-three states permit changes to birth certificates to show changes in gender, the position was unclear in ten states, and only four – the UK, Ireland, Albania and Andorra – expressly forbade such alterations25.
Many cases came before the European Court of Human Rights from applicants testing the legality of the British position. Europe With a certain amount of ambiguity as to the scope of a respect for private life under Article 8, the question of transsexuals' right to legal recognition has been one addressed by the Court with some uncertainty. Prior to 2002 the Court saw the guarantees under Article 8 for transsexuals' right to respect for a private life as unclear, and it ruled with varying (and generally decreasing) majorities to dismiss transsexuals' appeals.
In Rees v United Kingdom26, the Court ruled by a majority of 12:3 to dismiss an application by a transsexual under Article 8 to allow legal recognition for a change of gender. In its reasons the Court cited the relatively relaxed attitude taken in the United Kingdom in respect of birth certificates. The Court stated that one rarely has to produce a birth certificate in the UK, where there is no system of identification similar to the continental civil status certificate.
Five years after Rees a similar case came before the Court. In Cossey United Kingdom28, the applicant had undergone a male to female conversion (as opposed to the opposite operation which was at issue in Rees). The outcome was identical to Rees, as the transsexual applicant failed under Article 8. But there was a significant shift within the Court, which ruled against the applicant by a majority of only 10:8. The operation involved was more common and more socially acceptable that the one in Rees, and this is a reason often given for the Court's lower majority. The dissenting opinion of Martens J offers perhaps the most crucial insight into the reasons for the lower majority.
He stated that his, and the other seven judges', opinions were based on changing social attitudes to transsexualism, which was increasingly seen as an essentially private activity. It was therefore his belief that Article 8 should provide protection for a transsexual's ability to gain legal recognition for a change of gender. Furthermore, he suggested any 'treatment' of the syndrome was incomplete without full legal recognition29. In support of his arguments he pointed to the Court's ruling in Rees, which had left the door open to accommodate possible future changes in scientific and societal attitudes towards transsexualism30.
Changes in attitude towards transsexualism were again cited in B v France31, a case which came before the Court the following year. The Cour de Cassation in France refused to declare that, after surgery, B was now of female sex, and refused to alter her documentation accordingly32. Its reasons focussed on the patient's true biological gender, and they included the fact that her changes had arisen due her own choice without the safeguards insisted upon under French law33. The European Court of Human Rights held in favour of the applicant by a majority of 15:6, stating that Article 8 had been violated.
Because the French system imposes a lack of privacy by constantly publicising a person's sex by way of his or her social security number, the applicant's right to respect for a private life had been infringed. France was forced to modify the system. In its judgement the Court noted significant recent scientific developments, such as the recognition of testicular feminisation syndrome and the suggestions of a genetic background to transsexualism34. However, it also said that the transsexualism question was still in a state of flux35.
It was for the latter reason, coupled with the different system of identification in the UK, that the Court did not immediately overturn the rulings of Rees and Cossey. This left the United Kingdom unaffected by the changes which had increased the protection of transsexuals' rights in France. In 1996, in the case of Sheffield and Horsham v United Kingdom36, the Court once again found in favour of the UK Government in respect of the rights protected by Article 8. However, the majority decreased once more, this time to only 11:9.
Primarily, it was argued that the developments in the field of transsexualism since Cossey were insufficient to overturn the earlier judgements. Furthermore, the Court noted that deciding what positive steps the state must take to advance the right involve balancing the general interests of the community with the individual concerned. Because the state enjoys a margin of appreciation with such decisions, the diversity of practices between states meant there was no settled response from the parties to the Convention37.
The Court in Sheffield v Horsham was vehement in its criticism of the UK for not keeping this area of law under review, and it appeared to be signalling that a change was on the cards. The position after these cases, therefore, is rather curious. Article 8 gives the right to transsexuals in some, but not all, European states to have their change of gender recognised. People in countries such as the UK, where comparatively few disabilities, obligations, or embarrassments are imposed on transsexuals, have no right to official recognition of their re-assigned sex38. It has been argued that this: 'misses the point of Article 8.
Respect for private life is not simply a matter of protecting people from the embarrassment of external scrutiny of their personal situations. It involves respect for the individual's own dignity, and sense of being valued'39. However, it seems that in the UKthis position is about to change. The landmark case came in the summer of 2002. Christine Goodwin, a former bus driver, and "I", an unnamed male-to-female transsexual, appealed to the European Court of Human Rights after the British courts ruled that, under British law, sex is established at birth and cannot be altered.
As the decreasing majority of the Court perhaps foretold in the many previous, similar cases, the judges ruled in favour of the applicants and held that British law violated transsexuals' rights to respect for private life under Article 8. One reason for this change was the impact of ongoing developments in the scientific understanding of transsexualism. Furthermore, it was agreed that the State cannot plausibly argue that it is unable to find a less distressing way to safeguard the interests of third parties and protect the historical nature of the register of births40.
The Court once again criticised the British Government for failing to review the law. The Goodwin ruling has forced the Government to announce reform, which will allow transsexuals to gain legal recognition for a change of gender by permitting them to apply for alterations to their birth certificates. Article 12: the right to marry and found a family Though not directly relating to the title of this essay, it is worth mentioning the importance of Article 12 ECHR in transsexuals' battle to have their gender legally recognised.
In most of the cases cited in the previous section the applicants argued on the basis of Article 12 – the right to marry and found a family – in conjunction with their arguments based on Article 8. Until Goodwin, their applications failed under Article 12 as they did under Article 8. But the majority in the rulings decreased as time went on, in parallel to the situation under Article 8, and in Goodwin the Court finally decided in favour of the applicant on the basis of Article 12 as well as Article 8.
The applicant was therefore awarded the right to marry a member of her chromosomal sex. United Kingdom Prior to the Goodwin ruling, a reason why the ECHR had declined to force the UK to alter transsexuals' birth certificates was that these documents were intended as accurate historical records rather than to serve purposes of identification41. The change recently announced by the Government, therefore, has arguably come as a more significant step than it was in the majority of European states.
The status of British birth certificates will change significantly: they will become an indicator of present identification rather than an accurate historical record. However, in other ways change in the UK should not be so great. In comparison with other European countries, the UK is relatively unconcerned with sex. The registration of transsexuals in their 'new' sex for National Insurance and employment purposes is relatively common42. In White v British Sugar43, for example, a woman was treated as a 'man' for national insurance needs and was regarded as a women under the Sex Discrimination Act 1975.
Furthermore, Britons are free to use any name of their choice, and are not required to carry an identity card or any other document displaying their given names or sex44. Nevertheless, the nature of the change forced upon the United Kingdom by the ECHR has lead some commentators to voice their concerns over the possible content of reform. The transsexuals' campaigning group Press for Change welcomed the changes announced by the Government, but is concerned that there might be loopholes in the new law and delays before it goes on the statute book45.
One stumbling block the group notes is the issue of people who had changed sex but remain in existing marriages, for example because of pension reasons. Ministers are currently divided on whether such people should have to divorce if they wanted to change the sex on their birth certificates46. Press for Change believes "it's vital that the proposals provide full legal recognition for all purposes. If there are any exceptions, it will be worthless"47. Critical Analysis of forthcoming legislative reform:
Allowing the birth certificates of transsexuals to reflect their change of gender will have significant repercussions in varied aspects of their lives. As it stands, the law in Britain fails to prevent direct sex discrimination, which occurs when a person's chromosomal sex is used directly or expressly to limit their choices, opportunities or benefits48. Such discrimination is most often used to enforce the socially traditional sex roles, channelling chromosomal men into one role and chromosomal women into another49. Robert Wintemute identifies several kinds of discrimination faced by transsexuals50.
They include "(a) sanctions against persons using hormones and surgery to change their physical sex characteristics; (b) restrictions on who may wear or adopt clothing, make-up, jewellery, hairstyles or behaviour association with a particular sex; (c) restrictions on entry to, use of, or participation in single-sex locations or activities; (d) the existence of the legal categories of 'man' and 'woman,' and the refusal of UK law to permit transsexual persons to transfer from one to the other". Kristina Sheffield, one of the applicants in Sheffield and Horsham v UK51, exemplified the impact of discrimination.
She suffered great embarrassment on being required to disclose her previous name, for example when she applied for a visa, when she obtained motor insurance and when she acted as surety to a friend in court52. The European Court of Human Rights, however, decided the detriment was not sufficiently serious to outweigh the public interest in requiring people to reveal their previous identities53. The decision to allow legal recognition for a change of gender will theoretically end such discrimination by preventing forced disclosure of chromosomal sex. Marriage
The seminal British case is Corbett v Corbett54, in which a male-to-female transsexual married a man in Gibraltar, who subsequently petitioned in England for nullity. It was held that marriage depends on sex, not gender, to be determined by the chromosomal pattern, original gonadal status and the pre-operative genitalia. As marriage is a union between one man and one woman the Corbetts' marriage was declared void. This has been the (heavily criticised) position of English law since 1972. The Government's announcement, however, means that when the new legislation comes into force transsexuals' will have the right to marry.
Though based on the interpretation of Article 12 in Goodwin, this change would not have been possible without transsexuals' having the ability to gain legal recognition for a change of gender under Article 8. Employment There has been much case-law and discussion on employment discrimination against transsexuals. However, it was not until 1996 that the European Court of Justice ruled that employment discrimination was direct sex discrimination. This had remained unrecognised by almost all the courts of the world until the ruling in P v S and Cornwall County Council55.
P had been dismissed after informing her employer of her intention to undergo gender reassignment, including the use of hormones and surgery to alter her physical gender characteristics56. The Court held in favour of the applicant, on the basis that the employer's actions violated the Equal Treatment Directive57. In P v S58 Advocate General Tesauro noted that the decision the Court had to make was 'courageous', in the profound conviction that what is at stake is the universally fundamental value of the irrelevance of a person's sex with regard to the rules regulating relations in society.
As the court accepted the Advocate General's advice, Tesauro's words highlight the leap of faith taken by both the European Court of Human Rights. The Government has had to take a similar leap of faith in announcing reform. Now that it has been announced that a transsexual's change of gender will be legally recognised, employers will have no legal right to knowledge of the chromosomal sex of their employees or job applicants.
This should bring an end to these days when transsexuals are denied any remedy against instant dismissal by employers who discover their former identities59. P v S was a significant step forward, and legislative reform should be an even greater step forward if the new law is implemented in the manner pressure groups hope. The promised extension to the protection of the right for a private life should extend all the way to the workplace, and result in a significant reduction in sexual discrimination against transsexuals.