Respect for a private life provides protection

The right to respect for a private life is contained within Article 8 of the European Convention of Human Rights ("ECHR"), now enshrined in the United Kingdom by the Human Rights Act 1998. For many years transsexuals have argued that their right to respect for a private life provides protection for their ability to gain legal recognition for a change of gender. It is a legal battle which stretches back 33 years, to the case of former merchant seaman April Ashley.

She underwent one of the earliest successful sex change operations, but after an unhappy marriage she applied to the High Court for a decree of nullity. It was held that, because her sex was irrevocably determined at birth, the marriage was void from the outset as both parties were male. Through the 1980s and 90s a succession of British transsexuals took their cases to the European Court of Human Rights in Strasbourg, arguing that British law's refusal to allow them to change the sex on their birth certificate deprived them of their right to respect for a private life1.

It was not until the case of Goodwin and "I" in July 2002 that the majority of the judges upheld an appeal. This judgement forced the British Government to announce legal reform, which it did on 13 December 2002. The new law, expected to come into force by 2004, will allow transsexuals to apply for substitute birth certificates stating their new sex and to marry into their adopted gender. It is on the assumption that the reform will come into force by the date suggested that I base this essay.

It will be the most significant legal change ever to affect transsexuals in the UK, re-writing their right to respect for a private life and enabling them to gain legal recognition for a change of gender. Nevertheless, it is necessary to examine case-law of the European Court of Human Rights ("the Court") and the British courts in order that the present legal position may be analysed and the proposed changes placed into context. I will be providing some background to transsexualism, which has only recently been widely confirmed as a medical condition.

I will analyse the extent to which the current law enables transsexuals to gain legal recognition for a change of gender. Prior to my conclusion I will discuss the likely impact of reform, its advantages and the fundamental changes it will bring to many areas of transsexuals' life. Transsexualism The science of transsexualism: Transsexualism is the recognisable psychiatric abnormality also known as gender dysphoria syndrome or gender identity dysphoria. Those who experience it wish to be accepted as being a member of the opposite sex.

Transsexuals are not necessarily homosexual. In fact, the great majority are heterosexual2. They do not necessarily suffer from any anatomical or physiological abnormality. They differ from homosexuals as they are convinced nature has made a mistake as to their sex, whereas homosexuals are content with their own sexuality and choose simply to express it in their own way3. Transsexuals are not necessarily transvestites. Medical research in the 1990's revealed observable differences between the brains of lifelong males and those of male-to-female transsexuals.

Such research has prompted science to relegate chromosomal sex to an indicator of the direction in which an infant's upbringing should be steered, with a person being later 'assigned' to a sex which they are most likely to be able to support in society4. Such findings have lead British courts to force reluctant health authorities to fund sex-change surgery5. However, chromosomal sex is the only immutable feature of a transsexual, and thus it remains the most appealing feature to the lawyer6.

A patient's goal is usually to change their sex organs, and with improving surgical techniques the results can be impressive. Psychiatric therapy has no effect on a case of the fully-fledged syndrome, so in that sense transsexualism is untreatable. However, the syndrome often causes considerable suffering and it deserves to be treated7 in other ways. Medical professions internationally have agreed that gender identity dysphoria is a recognised clinical condition which can be treated, though not in all cases, by a combination of counselling, drug therapy and surgery8.

The aim of such treatment is to bring a sufferer's bodily appearance into line with his or her psychological and social gender identity9. Sexual identity Sex, being one of a person's most significant characteristics, has formed the basis of discriminatory social structures in nearly all societies10. Whether desirable or not, a person's sex has both legal and social consequences11. Legal, in the sense of one's legal status and capacity to enter into legal relationships with others, and social, for example, by defining one's self-image and the social expectations12.

However, transsexuals prove that sex is not always clear-cut, and it may conflict with gender (the psychological and social experience of being considered a man or a woman)13. It is because of the consequences of this conflict that many transsexuals believe the law should recognise a change in gender. The right to respect for a private life: A right to respect for a private life derives from the principle that people are free to organize the most intimate details of their lives according to their own preferences14.

It is contained in Article 8 ECHR: (1) 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 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.

The distinction made between private and family life is not so clear as the wording in part (1) of the section may suggest. Case-law shows that there is an overlap between categories of rights, and in fact it is largely unnecessary to attach a strict definition to the term "private life" (the section itself does not define the term). Many rights outside the scope of home, family life and correspondence fall within the section15. "Private life" appears to encompass a widening range of protected rights16.

In Niemietz v Germany17, a case of note for transsexuals, the Court said: 'It would be too restrictive to limit the notion [of private life] to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings'.

This has been acknowledged as a broad interpretation of privacy18, capable of offering wider protection of individuals' rights than the traditional approach which was generally limited to secrecy of personal information and seclusion. The Court has also confirmed that choice of sexual relations falls under Article 8. In Dudgeon19, Northern Ireland was found to be in breach of the Article as a result of its prohibition of homosexual intercourse.

However, the Court took a cautious approach. It held the provisions of the Northern Irish law were unnecessary as they had not been enforced in recent times, and they were consequently amended by the Northern Irish government20. The Court addressed the question of whether the interference in private life had been necessary in order to protect morals, but it only stated that no detriment in morals had apparently resulted from the disuse of the provisions.

This failed to progress the important issues raised in Niewietz. Two years later21 the Commission held the provisions of the Army Act 1955 (banning homosexual practices in the armed forces) were justified under the prevention of disorder and protection of morals clauses22. Once again the scope of Article 8 in relation to gender was left largely unanswered.