CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 septembre 1990

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height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }       COURT (PLENARY)             CASE OF COSSEY v. THE UNITED KINGDOM   (Application no. 10843/84)             JUDGMENT       STRASBOURG   27 September 1990 In the Cossey case [] , The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 51 of the Rules of Court [] and composed of the following judges:   Mr   R. Ryssdal , President ,   Mr   J. Cremona ,   Mr   Thór Vilhjálmsson ,   Mrs   D. Bindschedler-Robert ,   Mr   F. Gölcüklü ,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   B. Walsh ,   Sir   Vincent Evans ,   Mr   R. Macdonald ,   Mr   C. Russo ,   Mr   R. Bernhardt ,   Mr   A. Spielmann ,   Mr   S.K. Martens ,   Mrs   E. Palm ,   Mr   I. Foighel ,   Mr   R. Pekkanen ,   Mr   J.M. Morenilla Rodriguez , and also of Mr M.-A. Eissen , Registrar , and Mr H. Petzold , Deputy Registrar , Having deliberated in private on 27 April and 29 August 1990, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The case was referred to the Court on 4 July 1989 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government") and on 13 July 1989 by the European Commission of Human Rights ("the Commission"), within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 10843/84) against the United Kingdom lodged with the Commission under Article 25 (art. 25) by Miss Caroline Cossey, a British citizen, on 24 February 1984. The Government’s application referred to Article 48 (art. 48) and the Commission’s request to Articles 44 and 48 (art. 44, art. 48) and the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the application and of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 12 (art. 12) and also, in the case of the request, Article 8 (art. 8) of the Convention. 2.    In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant - who will be referred to in this judgment in the feminine - stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30). 3.    The Chamber to be constituted included ex officio Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 August 1989 the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr F. Matscher, Mr B. Walsh, Mr J. De Meyer, Mrs E. Palm and Mr I. Foighel (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr N. Valticos, substitute judge, replaced Mr De Meyer, who had withdrawn (Rules 22 para. 1 and 24 para. 2). 4.    Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the representative of the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the registry received, on 19 October 1989, the applicant’s memorial and, on 20 October 1989, the Government’s. By letter of 16 January 1990, the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 5.    Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 9 January 1990 that the oral proceedings should open on 24 April 1990 (Rule 38). 6.    On 21 February 1990 the Chamber decided, pursuant to Rule 51, to relinquish jurisdiction forthwith in favour of the plenary Court. 7.    The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government   Mr N. Parker , Assistant Legal Adviser,       Foreign and Commonwealth,   Agent ,   Mr N. Bratza ,   Counsel ,   Mr A. Inglese , Home Office,   Mr W. Jenkins , General Register,   Advisers ; - for the Commission   Mr E .,     Delegate ; - for the applicant   Mr D. Pannick ,   Counsel ,   Mr H. Brandman , Sollicitor. The Court heard addresses by Mr Bratza for the Government, by Mr Busuttil for the Commission and by Mr Pannick for the applicant, as well as replies to questions put by the Court and by two of its members individually. 8.    Various documents were filed by the applicant on 27 and 30 April and 22 May and by the Government on 5 June, including further particulars of the former’s claim under Article 50 (art. 50) and the latter’s comments thereon. AS TO THE FACTS I.    THE PARTICULAR CIRCUMSTANCES OF THE CASE 9.    The applicant, who is a British citizen, was born in 1954 and registered in the birth register as a male, under the male Christian names of Barry Kenneth. 10.    At the age of 13 the applicant realised that she was unlike other boys and, by the age of 15 or 16, she understood that, although she had male external genitalia, she was psychologically of the female sex. In July 1972 she abandoned her male Christian names and assumed the female Christian name of Caroline, a change which she confirmed by deed poll (see paragraph 16 below) in March 1973. Since July 1972 she has been known under that name for all purposes, has dressed as a woman and has adopted a female role. 11.    In December 1974 the applicant, who had previously taken female hormones and had had an operation for breast augmentation involving implants, underwent gender reassignment surgery in a London hospital, to render the external anatomy nearer that of the female gender. A medical report dated 8 February 1984 describes Miss Cossey as a pleasant young woman, states that she has lived a full life as a female, both psychologically and physically, since the surgery and records that a genital examination showed her to have the external genitalia and vagina of a female. As a post-operative female transsexual, she is able to have sexual intercourse with a man. 12.    In 1976 the applicant was issued with a United Kingdom passport as a female (see paragraphs 16-17 below). From about 1979 to 1986 she was a successful fashion model, featuring regularly in newspapers, magazines and advertisements. 13.    In 1983 Miss Cossey and Mr L., an Italian national whom she had known for some fourteen months, wished to marry each other. By letter of 22 August 1983, the Registrar General informed the applicant that such a marriage would be void as a matter of English law, because it would classify her as male notwithstanding her anatomical and psychological status. Her Member of Parliament advised her in a letter of 30 August 1983 that a change in the law would be required to enable her to marry. A reply on behalf of the Registrar General, dated 18 January 1984, to a further enquiry by the applicant stated that she could not be granted a birth certificate showing her sex as female, since such a certificate records details as at the date of birth (see paragraphs 18-20 below). In 1985 - after the date of her application to the Commission - Miss Cossey and Mr L. ceased to be engaged to be married, though they remained good friends. 14.    On 21 May 1989 the applicant purported to marry a Mr X, at a ceremony conducted at a London synagogue. However, their relationship terminated on 11 June of the same year. Following a petition filed by Miss Cossey, who had been advised that this was her only means of obtaining financial relief, the marriage was, by decree nisi made by the High Court on 17 January 1990, pronounced to have been by law void by reason of the parties not being respectively male and female (see paragraphs 23-24 below). That decree was made final on 13 March 1990. II.    RELEVANT DOMESTIC LAW AND PRACTICE A. Medical treatment 15.    In the United Kingdom gender reassignment operations are permitted without legal formalities. The operations and treatment may be carried out under the National Health Service. B. Change of name 16.    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 the new names may be subject to certain formalities (see, inter alia, Halsbury’s Laws of England, 4th ed., vol. 35, paras. 1173-1176). 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. C. Identity documents 17.    Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr", "Mrs", "Ms" or "Miss", as appropriate, before his or her adopted names. D. The register of births 18.    The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"), 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. The particulars to be entered are prescribed in regulations made under the 1953 Act. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act, that is the name and surname, sex, date of birth and place of birth of the individual. It omits, notably, any particulars relating to parentage or adoption contained in the register. 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. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like. 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. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child. Statutory provision is made for the re-registration of the birth of a child who has been legitimated by the subsequent marriage of his parents. Thereafter birth certificates supplied concerning him take the form of a certified copy of the entry of re-registration; no copy of the previous entry may be given except under the direction of the Registrar General. Under the Adoption Act 1976, where a child is adopted, an entry (not including the names of the natural parents) will be made in a separate register known as the Adopted Children Register. In addition, the original entry in the register of births will be marked with the word "Adopted". The Registrar General keeps books to make traceable the connection between the entries in the two registers but these books are not accessible to the public, save on application by the adopted person himself or by order of a court. It is open to anyone to obtain a certified copy of the entry in the Adopted Children Register or a short certificate which contains no particulars relating to parentage. 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, i.e. 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. 21.    Indexes are maintained of all entries in birth registers. It is open to any member of the public to search the indexes (but not the registers themselves) and obtain a certified copy of any such entry. However, identification of the index reference requires prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the registration district. 22.    The law does not require that the birth certificate be produced for any particular purpose, although a certificate may in practice be requested by certain institutions and employers. A birth certificate has in general to accompany a first application for a passport, but is not needed for its renewal or replacement or for an application for a driving licence. A birth certificate is also usually (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government.   In the case of a religious marriage ceremony, the celebrant is not obliged nor is there any statutory power under English law to ask the parties to produce copies of their birth certificates (see also paragraph 25 below). E. Marriage 23.    In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female. Under section 12 of the same Act, a marriage which is not consummated owing to the incapacity or wilful refusal of one of the parties to consummate it, is voidable. 24.    According to the decision of the High Court in Corbett v. Corbett [1971] Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent, and without regard to any operative intervention. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person’s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced. 25.    If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he or she is guilty of an offence under section 3(1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act. F. The legal definition of sex for other purposes 26.    The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage. In one case concerning prostitution, a male-to-female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of section 30 of the Sexual Offences Act 1956 and section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male-to-female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second she had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female-to-male transsexual, who had not undergone any sex-change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd [1977] Industrial Relations Law Reports 121). PROCEEDINGS BEFORE THE COMMISSION 27.    In her application (no. 10843/84) lodged with the Commission on 24 February 1984, Miss Cossey complained of the fact that under English law she cannot claim full recognition of her changed status and, in particular, is unable to enter into a valid marriage with a man. She alleged violations of Articles 8 and 12 (art. 8, art. 12) of the Convention. 28.    The Commission declared the application admissible on 5 July 1985. In its report of 9 May 1989 (drawn up in accordance with Article 31) (art. 31), the Commission expressed the opinion, by ten votes to six, that there had been a violation of Article 12 (art. 12), but not of Article 8 (art. 8). The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [] . FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 29.    At the hearing on 24 April 1990 the Government requested the Court to "decide and declare that there has been no breach of the applicant’s right to respect for private life under Article 8 para. 1 (art. 8-1) ... or of the applicant’s right to marry and to found a family under Article 12 (art. 12) ...". AS TO THE LAW 30.    Miss Cossey claimed that the refusal to issue her with a birth certificate showing her sex as female and her inability, under English law, to contract a valid marriage with a man gave rise to violations of Article 8 and Article 12 (art. 8, art. 12), respectively, of the Convention. These provisions read as follows: Article 8 (art. 8) "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." Article 12 (art. 12) "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." The applicant’s allegations were contested by the Government. A majority of the Commission expressed the opinion that there had been a violation of Article 12 (art. 12) but not of Article 8 (art. 8). 31.    The Court was confronted in the Rees case with issues akin to those arising in the present case. It therefore has to determine whether the two cases are distinguishable on their facts or whether it should depart from the judgment which it gave in the former case on 17 October 1986 (Series A no. 106; "the Rees judgment"). I.    IS THE PRESENT CASE DISTINGUISHABLE ON ITS FACTS FROM THE REES CASE? 32.    In the view of the applicant and certain members of the Commission, the present case was distinguishable on its facts from the Rees case, in that, at the time of their respective applications to the Commission, Miss Cossey had a male partner wishing to marry her (see paragraph 13 above) whereas Mr Rees did not have a female partner wishing to marry him. Reference was also made to the ceremony of marriage between the applicant and Mr X (see paragraph 14 above) which, although the marriage was declared void, was said to underline her wish to marry. The Court is not persuaded that this difference is material. In the first place, the fact that Mr Rees had no such partner played no part in the Court’s decisions, which were based on a general consideration of the principles involved (see the Rees judgment, pp. 14-18 and 19, paras. 35-46 and 48-51). In any event, as regards Article 8 (art. 8), the existence or otherwise of a willing marriage partner has no relevance in relation to the contents of birth certificates, copies of which may be sought or required for purposes wholly unconnected with marriage. Again, as regards Article 12 (art. 12), whether a person has the right to marry depends not on the existence in the individual case of such a partner or a wish to marry, but on whether or not he or she meets the general criteria laid down by law. 33.    Reliance was also placed by the applicant on the fact that she is socially accepted as a woman (see paragraphs 10-12 above), but this provides no relevant distinction because the same was true, mutatis mutandis, of Mr Rees (see the Rees judgment, p. 9, para. 17). Neither is it material that Miss Cossey is a male-to-female transsexual whereas Mr Rees is a female-to-male transsexual: this - the only other factual difference between the two cases - is again a matter that had no bearing on the reasoning in the Rees judgment. 34.    The Court thus concludes that the present case is not materially distinguishable on its facts from the Rees case. II.    SHOULD THE COURT DEPART FROM ITS REES JUDGMENT? 35.    The applicant argued that, in any event, the issues arising under Articles 8 and 12 (art. 8, art. 12) deserved reconsideration. It is true that, as she submitted, the Court is not bound by its previous judgments; indeed, this is borne out by Rule 51 para. 1 of the Rules of Court. However, it usually follows and applies its own precedents, such a course being in the interests of legal certainty and the orderly development of the Convention case-law. Nevertheless, this would not prevent the Court from departing from an earlier decision if it was persuaded that there were cogent reasons for doing so. Such a departure might, for example, be warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions (see, amongst several authorities, the Inze judgment of 28 October 1987, Series A no. 126, p. 18, para. 41). A.   Alleged violation of Article 8 (art. 8) 36.    The applicant asserted that the refusal to issue her with a birth certificate showing her sex as female constituted an "interference" with her right to respect for her private life, in that she was required to reveal intimate personal details whenever she had to produce a birth certificate. In her view, the Government had not established that this interference was justified under paragraph 2 of Article 8 (art. 8-2). On this point, the Court remains of the opinion which it expressed in the Rees judgment (p. 14, para. 35): refusal to alter the register of births or to issue birth certificates whose contents and nature differ from those of the original entries cannot be considered as an interference. What the applicant is arguing is not that the State should abstain from acting but rather that it should take steps to modify its existing system. The question is, therefore, whether an effective respect for Miss Cossey’s private life imposes a positive obligation on the United Kingdom in this regard. 37.    As the Court has pointed out on several occasions, notably in the Rees judgment itself (p. 15, para. 37), the notion of "respect" is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. 38.    In reaching its conclusion in the Rees judgment that no positive obligation of the kind now in issue was incumbent on the United Kingdom, the Court noted, inter alia, the following points (pp. 17-18, paras. 42-44). (a) 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 therefor a system of documentation, such as that used in some other Contracting States, for recording current civil status. (b) 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 his 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. (c) That change, and the corresponding annotation, could not be kept secret from third parties without a fundamental modification of the existing system for maintaining the register of births, which was accessible to the public. 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. It would also take no account of the position of third parties, in that they would be deprived of information which they had a legitimate interest to receive. 39.    In the Court’s view, these points are equally cogent in the present case, especially as regards Miss Cossey’s submission that arrangements could be made to provide her either with a copy birth certificate stating her present sex, the official register continuing to record the sex at birth, or, alternatively, a short-form certificate, excluding any reference either to sex at all or to sex at the date of birth. Her suggestions in this respect were not precisely formulated, but it appears to the Court that none of them would overcome the basic difficulties. Unless the public character of the register of births were altered, the very details which the applicant does not wish to have disclosed would still be revealed by the original entry therein or, if that entry were annotated, would merely be highlighted. Moreover, the register could not be corrected to record a complete change of sex since that is not medically possible. 40.    In the Rees judgment, 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 also 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, paras. 42 and 47). The Court has been informed of no significant scientific developments that have occurred in the meantime; in particular, it remains the case - as was not contested by the applicant - that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex. There have been certain developments since 1986 in the law of some of the member States of the Council of Europe. However, the reports accompanying the resolution adopted by the European Parliament on 12 September 1989 (OJ No C 256, 9.10.1989, p. 33) and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the Council of Europe on 29 September 1989 - both of which seek to encourage the harmonisation of laws and practices in this field - reveal, as the Government pointed out, the same diversity of practice as obtained at the time of the Rees judgment. Accordingly this is still, having regard to the existence of little common ground between the Contracting States, an area in which they enjoy a wide margin of appreciation (see the Rees judgment, p. 15, para. 37). In particular, it cannot at present be said that a departure from the Court’s earlier decision is warranted in order to ensure that the interpretation of Article 8 (art. 8) on the point at issue remains in line with present-day conditions (see paragraph 35 above). 41.    The applicant also prayed in aid Article 14 (art. 14) of the Convention, which prohibits discrimination in the enjoyment of the rights and freedoms guaranteed. However, the Court does not consider that this provision assists her. She appears to have relied on it not so much in order to challenge a difference of treatment between persons placed in analogous situations (see, amongst various authorities, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 26, para. 60) but rather as a means of introducing into her submissions the notion of proportionality between a measure or a restriction and the aim which it seeks to achieve. Yet that notion is already encompassed within that of the fair balance that has to be struck between the general interest of the community and the interests of the individual (see paragraph 37 above and the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 50, para. 120). 42.    The Court accordingly concludes that there is no violation of Article 8 (art. 8). The Court would, however, reiterate the observations it made in the Rees judgment (p. 19, para. 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review. B.   Alleged violation of Article 12 (art. 12) 43.    In reaching its conclusion in the Rees judgment that there had been no violation of Article 12 (art. 12), the Court noted the following points (p. 19, paras. 49-50). (a) The right to marry guaranteed by Article 12 (art. 12) referred to the traditional marriage between persons of opposite biological sex. This appeared also from the wording of the Article (art. 12) which made it clear that its main concern was to protect marriage as the basis of the family. (b) Article 12 (art. 12) laid down that the exercise of the right to marry shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right was impaired. However, the legal impediment in the United Kingdom on the marriage of persons who were not of the opposite biological sex could not be said to have an effect of this kind. 44.    Miss Cossey placed considerable reliance, as did the Delegate of the Commission, on the fact that she could not marry at all: as a woman, she could not realistically marry another woman and English law prevented her from marrying a man. In the latter connection, Miss Cossey accepted that Article 12 (art. 12) referred to marriage between a man and a woman and she did not dispute that she had not acquired all the biological characteristics of a woman. She challenged, however, the adoption in English law of exclusively biological criteria for determining a person’s sex for the purposes of marriage (see paragraph 24 above) and the Court’s endorsement of that situation in the Rees judgment, despite the absence from Article 12 (art. 12) of any indication of the criteria to be applied for this purpose. In her submission, there was no good reason for not allowing her to marry a man. 45.    As to the applicant’s inability to marry a woman, this does not stem from any legal impediment and in this respect it cannot be said that the right to marry has been impaired as a consequence of the provisions of domestic law. As to her inability to marry a man, the criteria adopted by English law are in this respect in conformity with the concept of marriage to which the right guaranteed by Article 12 (art. 12) refers (see paragraph 43 (a) above). 46.    Although some Contracting States would now regard as valid a marriage between a person in Miss Cossey’s situation and a man, the developments which have occurred to date (see paragraph 40 above) cannot be said to evidence any general abandonment of the traditional concept of marriage. In these circumstances, the Court does not consider that it is open to it to take a new approach to the interpretation of Article 12 (art. 12) on the point at issue. It finds, furthermore, that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry. 47.    In the context of Article 12 (art. 12) the applicant again prayed in aid Article 14 (art. 14) of the Convention. On this point it suffices to refer to the observations in paragraph 41 above. 48.    The Court thus concludes that there is no violation of Article 12 (art. 12). FOR THESE REASONS, THE COURT 1.    Holds by ten votes to eight that there is no violation of Article 8 (art. 8);   2.    Holds by fourteen votes to four that there is no violation of Article 12 (art. 12).   Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 September 1990.   Rolv RYSSDAL President   Marc-André EISSEN Registrar   In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Mrs Bindschedler-Robert and Mr Russo; (b) joint partly dissenting opinion of Mr Macdonald and Mr Spielmann; (c) dissenting opinion of Mr Martens; (d) joint dissenting opinion of Mrs Palm, Mr Foighel and Mr Pekkanen.   R. R. M.-A. E.   PARTLY DISSENTING JOINT OPINION OF JUDGES BINDSCHEDLER-ROBERT AND RUSSO (Translation) In the instant case the Court has confirmed the opinion it expressed in its judgment in the Rees case, in which it said that the United Kindgom could not be required to adapt its system of recording civil status in such a way that a transsexual’s change of sexual identity appeared in his birth certificate. However, we are no more persuaded now than we were then that the arguments advanced in support of this view are valid. It remains our view that as regards the way in which it draws up the civil-status documents in question - that is to say the birth register and birth certificate - the United Kingdom has not taken all the appropriate steps to ensure, as far as possible, that allowance is made for changes in certain persons’ sexual identity; and we consider that although, as we are glad to acknowledge, it has endeavoured to meet transsexuals’ demands in several other respects, it has therefore to this extent failed to respect the applicant’s private life. In our opinion, a just balance could have been struck between the public interest and the interests of the individual without upsetting the present system of recording civil status; the fact that such a balance would not necessarily meet all the applicant’s demands should not prevent the Court from giving it due weight in assessing whether Article 8 (art. 8) has been complied with. As to the rest, and in order to avoid repeating ourselves, we would refer to the dissenting opinion that we expressed jointly with our late lamented colleague Mr Gersing in the Rees case.   JOINT PARTLY DISSENTING OPINION OF JUDGES MACDONALD AND SPIELMANN (Translation) 1. Like the majority, we consider that there is no violation of Article 12 (art. 12) of the Convention. 2. On the other hand, we are of the opinion that there is a violation of Article 8 (art. 8). Whilst we can agree with sub-paragraphs 1 and 2 of paragraph 40 of the judgment, the same does not apply to sub-paragraph 3 of that paragraph, which reads: "There have been certain developments since 1986 in the law of some of the member States of the Council of Europe. However, the reports accompanying the resolution adopted by the European Parliament on 12 September 1989 (OJ No C 256, 9.10.1989, p. 33) and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the Council of Europe on 29 September 1989 - both of which seek to encourage the harmonisation of laws and practices in this field - reveal, as the Government pointed out, the same diversity of practice as obtained at the time of the Rees judgment. Accordingly this is still, having regard to the existence of little common ground between the Contracting States, an area in which they enjoy a wide margin of appreciation (see the Rees judgment, p. 15, para. 37). In particular, it cannot at present be said that a departure from the Court’s earlier decision is warranted in order to ensure that the interpretation of Article 8 (art. 8) on the point at issue remains in line with present-day conditions (see paragraph 35 above)." We consider that since 1986 there have been, in the law of many of the member States of the Council of Europe, not "certain developments" but clear developments. We are therefore of the opinion that, although the principle of the States’ "wide margin of appreciation" was at a pinch acceptable in the Rees case, this is no longer true today. Paragraph 42 of the judgment contains the following passage: "The Court would, however, reiterate the observations it made in the Rees judgment (p. 19, para. 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review." This is meagre consolation for the individuals concerned. In our view, concrete measures are necessary now.   DISSENTING OPINION OF JUDGE MARTENS 1. INTRODUCTION 1.1    Like the majority I think that neither the relevant facts nor the issues for decision in the case of Miss Cossey differ from those in the case of Mr Rees in a way which would justify distinguishing the former from the latter. Unlike the majority, however, I am of the opinion that the Court had indeed "cogent reasons" [1] for departing from its Rees judgment. A true reconsideration of the issues arising under Articles 8 and 12 (art. 8, art. 12) should have led it to conclude that the Rees judgment was wrong - or at least that present-day conditions warranted a different decision in the Cossey case. I am convinced therefore that the Court should have responded to the pressing invitation by the Commission’s Delegate to overrule its decision in the Rees case. 1.2    To explain my opinion I propose first to make some general remarks which will outline my position on the human-rights aspects of the problem of transsexualism (section 2). I will then set out why I think that the Court should have decided the Rees case differently (sections 3 and 4). Lastly I will give further arguments for overruling that decision (section 5).   2. GENERAL REMARKS ON TRANSSEXUALISM AS A PROBLEM OF HUMAN RIGHTS 2.1 Like Mr Rees, the applicant is a transsexual, that is she belongs to that small and tragic group of fellow-men who are smitten by the conviction of belonging to the other sex, this conviction being both incurable and irresistible. 2.2 If a transsexual is to achieve any degree of well-being, two conditions must be fulfilled: 1. by means of hormone treatment and gender reassignment surgery his (outward) physical sex must be brought into harmony with his psychological sex; 2. the new sexual identity which he has thus acquired must be recognised not only socially but also legally. 2.3 Like the Rees case, the present case concerns only the second of these conditions. Consequently, there is no need to go into the medical procedures to be followed in order to ensure that treatment - especially the surgery, which is irreversible - is applied only after very careful diagnosis. This is all the less necessary as the applicant has undergone all the requisite medical treatment which, as in the Rees case, was paid for by the National Health Service; it may therefore be assumed that all medical and medical-ethical requirements for that treatment were met, viz. that after exhaustive investigations the doctors were satisfied that their patient was a bona fide transsexual and that his well-being would be promoted by the surgery. 2.4 As to the second of the above conditions, it should be stressed that (medical) experts in this field have time and again stated that for a transsexual the "rebirth" he seeks to achieve with the assistance of medical science is only successfully completed when his newly acquired sexual identity is fully and in all respects recognised by law. Th