CEDH · CASELAW;REPORTS;ENG — 21 janvier 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 22985/93                             Kristina Sheffield                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                        (adopted on 21 January 1997)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-31). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 20-24) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law and practice            (paras. 25-30) . . . . . . . . . . . . . . . . . . . . . 3         C.    Other relevant materials            (para. 31) . . . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 32-75). . . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaints declared admissible            (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Points at issue            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6         C.    As regards Article 8 of the Convention            (paras. 34-54) . . . . . . . . . . . . . . . . . . . . . 6              CONCLUSION            (para. 55) . . . . . . . . . . . . . . . . . . . . . . .12         D.    As regards Article 12 of the Convention            (paras. 56-60) . . . . . . . . . . . . . . . . . . . . .12              CONCLUSION            (para. 61) . . . . . . . . . . . . . . . . . . . . . . .13         E.    As regards Article 14 of the Convention            (paras. 62-65) . . . . . . . . . . . . . . . . . . . . .13              CONCLUSION            (para. 66) . . . . . . . . . . . . . . . . . . . . . . .14                              TABLE OF CONTENTS                                                                  page         F.    As regards Article 13 of the Convention            (paras. 67-70) . . . . . . . . . . . . . . . . . . . . .14              CONCLUSION            (para. 71) . . . . . . . . . . . . . . . . . . . . . . .14         G.    Recapitulation            (paras. 72-75) . . . . . . . . . . . . . . . . . . . . .15   PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE, MM. J.-C. GEUS, J. MUCHA, P. LORENZEN and   K. HERNDL. . . . . . . .16   PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . . . . .17   PARTIALLY DISSENTING OPINION OF MR. L. LOUCAIDES. . . . . . . . . .19   APPENDIX I:       FINAL DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 21   APPENDIX II:      PARTIAL DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 28   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a British citizen born in 1946 and resident in London. She is represented by Henri Brandman & Co., solicitors practising in London.   3.     The application is directed against the United Kingdom. The respondent Government are represented by Mr. Martin Eaton, as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaints of the applicant that the State refuses to give legal recognition to her status as a woman following gender re-assignment. The application, as declared admissible, raises issues under Articles 8, 12, 13 and 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 4 August 1993 and registered on 22 November 1993.   6.     On 4 July 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits. It decided that the case should be given priority pursuant to Rule 33 of the Commission's Rules of Procedure.   7.     On 16 November 1994, the Government submitted their observations and on 24 April 1995, the applicant submitted her observations in reply.   8.     On 4 September 1995, the Commission decided to invite the parties to make submissions at an oral hearing concerning the applicant's complaints relating to the lack of respect for her private life, inability to marry, discrimination and lack of an effective remedy. The remainder of the application was declared inadmissible.   9.     On 8 December 1995, the Government submitted further documents and on 15 January 1996, the applicant provided further material.   10.    At the oral hearing, held on 19 January 1996, the Government were represented by Ms. Dickson, as Agent, Mr. Pannick Q.C., Counsel, Mr. Singh, counsel, Ms. Jenn and Mr. Jenkins as Advisers from the Department of Health and the Office of Population, Censuses and Surveys. The applicant was represented by Messrs. Duffy, McFarlane and Heim as   Counsel, Mr. Brandman, solicitor, and Professor Gooren as adviser.   11.    On 19 January 1996, the Commission declared the application admissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    On 20 March 1996, the Government submitted further observations and on 29 March 1996, the applicant submitted observations on the merits. The applicant submitted further information on 2 May 1996, to which the Government submitted comment on 28 June 1996.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.     The present Report   15.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL   16.    The text of the Report was adopted by the Commission on 21 January 1997 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   18.    The Commission's final and partial decisions on the admissibility of the application are annexed hereto (Appendices I and II).   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   20.    The applicant at birth in 1946 was registered as being of the male sex. In 1986, the applicant began treatment at a gender identity clinic and on a date unspecified, underwent sex re-assignment surgery and treatment. She changed her name. This change of name was recorded on her passport and driving licence. Her birth certificate continues to record her original name and gender.   21.    The applicant was divorced from her spouse at or around that time. She states that she was informed that she was required to obtain a divorce as a pre-condition to surgery being carried out. Following the divorce, the applicant's ex-wife applied to the court to terminate the applicant's access to her daughter. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child's interests. The applicant has not seen her daughter since then, a period of more than eight years.   22.    On 7 and 16 April 1992, the applicant attended court to stand surety in the sum of £ 2000 for a friend. On both occasions she was required to disclose to the court her previous name.   23.    In June 1992, the applicant was arrested for breach of fire-arms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the data protection provisions required her to state her sex and other names. She did not pursue the enquiry.   24.    On 20 December 1992, the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. As under United Kingdom law she continues to be regarded a male she was obliged to give her sex as male.   B.     Relevant domestic law and practice         Names   25.    Under United Kingdom law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards etc.         Marriage and definition of gender in domestic law   26.    Pursuant to United Kingdom law, marriage is defined as the voluntary union between a man and a woman, sex for that purpose being determined by biological criteria (chromosomal, gonadal and genital, without regard to any surgical intervention): Corbett v. Corbett [1971] P 83. This definition has however been applied beyond the context of the Corbett case eg. approved by the Court of Appeal in R. v. Tan (1983 QB 1053) where it was held that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender re-assignment therapy.         Birth certificates   27.    Registration of births is governed by the Births and Deaths Registration Act 1953 which requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as record of the facts at the time of birth.   A birth certificate accordingly constitutes a document revealing not current identity but historical facts.   28.    The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital).   29.    The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered.   The fact that it may become evident later in a person's life that his or her "psychological" sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made and it is necessary for that purpose to adduce medical evidence that the initial entry was incorrect.         Social security, employment and pensions   30.    A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male to female transsexual will accordingly only be entitled to a State pension at the state retirement age of 65 and not the age of 60 which is applicable to women.   C.     Other relevant materials   31.    In its judgment of 30 April 1996, in the case of P. v. S. and the Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender re-assignment constituted discrimination   on grounds of sex and accordingly Article 5 para. 1 of the directive on the implementation of the principle of equal treatment for man and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender re-assignment. The ECJ held, rejecting the argument of the United Kingdom that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that         "where a person is dismissed on the ground that   he or she       intends to undergo or has undergone gender re-assignment, he or       she is treated unfavourably by comparison with persons of the sex       to which he or she was deemed   to belong before undergoing gender       re-assignment.         To tolerate such discrimination would be tantamount, as regards       such a person, to a failure to respect the dignity and freedom       to which he or she is entitled and which the Court has a duty to       safeguard."   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   32.    The Commission has declared admissible the applicant's complaints that the lack of legal recognition of her gender re-assignment discloses a lack of respect for her private life, a denial of the right to marry and discrimination and that she does not have an effective remedy for her complaints.   B.     Points at issue   33.    The issues to be determined in the present case are:         - whether there is a lack of respect for the applicant's private       life contrary to Article 8 (Art. 8) of the Convention;         - whether there is a violation of Article 12 (Art. 12) of the       Convention in respect of an alleged denial of the right to marry;         - whether the applicant has been subject to discrimination in the       enjoyment of her rights under the Convention contrary to       Article 14 (Art. 14) of the Convention;         - whether there has been a violation of Article 13 (Art. 13) of       the Convention in relation to her allegations of lack of an       effective remedy in respect of her complaints.   C.     As regards Article 8 (Art. 8) of the Convention   34.    Article 8 (Art. 8) of the Convention provides as relevant:         "1.   Everyone has the right to respect for his private       ...life...         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."   35.    The applicant complains that the failure of the United Kingdom law to recognise her gender re-assignment constitutes a lack of respect for her private life guaranteed under Article 8 (Art. 8) of the Convention. For legal purposes, such as appearance in court and documents (eg. insurance and contractual documents), a transsexual may be required to indicate birth gender and, on occasion, previous name and in official records (National Insurance and social security) and in the employment context, a transsexual continues to be regarded as being of the sex recorded at birth.   Failure to declare her sex as male would in the court context or when taking oaths or making statutory declarations in other contexts eg. swearing affidavits render her liable to criminal sanctions under perjury provisions and it would be unlawful, and a ground for dismissal, if she failed to declare her birth gender in employment applications. For the purposes of the criminal law and criminal justice system, she would also continue to be treated as being of her birth gender ie. a man, where such was relevant to the definition of the offence or any sentencing consequences.   36.    The applicant contends that the allocation of sex in United Kingdom law and practice by reference to biological indicators existing at the time of birth is not justified socially, medically or scientifically. Accordingly the applicant submits that she is subject to serious, distressing and unnecessary interferences. The United Kingdom has failed to provide any viable justification for the refusal to afford legal recognition to her change of gender, giving no explanation of why it is not possible within a historical record system to make annotations or corrections, as has occurred in several instances, where it is doubtful that any genuine "biological" mistake occurred at the time of birth (eg. the cases of Roberta Cowell, registered at birth in 1918 as Robert Cowell and Sir Ewan Forbes, registed at birth in 1912 as Elizabeth Forbes-Sempil).   37.    The applicant refers to developments in medical and scientific research that indicate that brain differences exist between men and women and that there are similarities in brain structure between women and genetically male transsexuals (eg. the article "A sex difference in the human brain and its relation to transsexuality" by Zhou, Hofman, Gooren and Swaab, Nature, 2 November 1995).   The applicant also points to the decision of the European Court of Justice in P. v. S. and the Cornwall County Council as, together with social, medical and scientific developments, evidencing the existence of a broad consensus in Europe.   38.    The Government submit that Article 8 (Art. 8) does not require a Contracting State to recognise for legal purposes the new sexual identity of a person who has undergone gender re-assignment surgery. They refer to the wide margin of appreciation to be accorded to States in this area where difficult medical, social and moral questions arise on which there is not yet any international consensus (see Eur. Court H.R., Rees judgment of 17 October 1986, Series A no. 106; Cossey judgment of 27 September 1990, Series A no. 184, and B. v. France judgment of 25 March 1992, Series A no. 232-C). The Court's case-law indicates that the positive obligation of respect under Article 8 (Art. 8) does not require the United Kingdom to adopt a new and radically different system of birth registration ie. from the existing system of historical fact to a system based on current identity.   39.    The Government submit moreover that the applicant has not established a sufficient degree of practical detriment, distress or stigmatisation   which would amount to a denial of her right to respect for her private life. She has been able to change her name, and have this change entered on her official documents such as driving licence and passport. She has also been issued with a new national insurance number and both the Employment Service and the Department of Social Security   maintain the confidentiality of their records. They dispute that the applicant suffers any less legal protection under civil or criminal law than any other person. Insofar as she refers to requirements to disclose her previous name or birth gender in insurance or court contexts, they point out that this information may be necessary, for example, in order for criminal records to be checked or where medical history is relevant. In any event, she can avoid entering into contracts with those companies who require her to give her this information.   40.    The Government dispute the significance of the alleged medical developments relied on by the applicant. They draw attention to the fact that in the same issue of "Nature" as referred to by the applicant (2 November 1995) an article by S. Marc Breedlove comments that the difficulties inherent in studying the diverse sexual behaviour of humans ensures that this will be far from the final word on the subject and that it could not be excluded that the differential brain sizes found in the study derived from external causes such as the oestrogen treatment of transsexuals or developmental and social influences. They also point out that the case of P. v. S. was concerned with a narrow point of employment law and did not purport to deal with whether and in what circumstances a State is obliged to recognise for legal purposes that a person's sex has been changed by re-assignment surgery.   41.    The Commission observes that the applicant's complaints essentially challenge the existing state of law in the United Kingdom in relation to the legal status of transsexuals as disclosing a lack of respect for her right to private life. The Commission has therefore examined whether an effective respect for the applicant's private life imposes a positive obligation on the United Kingdom to modify its existing legal system as it applies to transsexuals. In determining whether or not such a positive obligation exists, regard must be had to the fair balance which has to be struck between the general interest of the community and the interests of the individual (see eg. Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C. p. 47, para. 44). In striking this balance, the aims mentioned in the second paragraph of Article 8 (Art. 8) may be of relevance.   42.    The Commission recalls that the impact of the legal situation of transsexuals on their private life in the United Kingdom has been considered by itself and the Court in two previous cases; Rees and Cossey (Eur. H.R., Rees judgment of 17 October 1986, Series A no. 106 and Cossey judgment of 27 September 1990, Series A no. 184).   43.    In Rees, the Court found no violation of the applicant's (a female-to-male transsexual) right to respect for private life by twelve votes to three as opposed to a unanimous finding of violation by the Commission in its opinion. The Court considered that requiring the United Kingdom to alter birth certificates of transsexuals would be tantamount to asking it to adopt a civil status register. It noted that it would not be possible to adopt annotations to the existing register which would be secret without fundamentally altering the present system and excluding the interests of third parties in obtaining information which they had a legitimate interest to receive. This would entail detailed legislation and having regard to the interests of others and the wide margin of appreciation to be afforded to States in this area, the positive obligations arising under Article 8 (Art. 8) could not be held to extend that far. The Court however expressed itself conscious of the problems faced by transsexuals, recalled the principle that the Convention had to be interpreted and applied in light of current circumstances and stated that the need for appropriate legal measures should be kept under review having regard particularly to scientific and societal developments.   44.    When, almost four years later, the Cossey case (involving a male- to-female transsexual) came before the Court, the Court found no violation of Article 8 (Art. 8) upholding its opinion in the Rees case but by a narrower margin of ten votes to eight. It had regard to the developments which had taken place in the interval but noted that no scientific developments had occurred. While there had been developments in domestic law in some States and recommendations issued by the European Parliament and the Parliamentary Assembly of the Council of Europe, it still found little common ground. It again repeated its comment from the Rees case that the matter should be kept under review.   45.    Subsequently, in a case concerning France, the Court found a violation of the right to respect for private life by thirteen votes to five : it decided the case however on the basis of the situation pertaining in France, with its civil status system, and of the seriousness of the inconveniences facing the applicant. It declined to revisit its findings in Rees and Cossey as regarded any general right to recognition of the psycho-social reality of transsexualism (Eur. Court H.R., B. v. France judgment, op. cit., para. 48).   46.    As regards the interests of the applicant in this case, the Commission notes that she is not subject to the daily humiliation and embarrassment facing B., who had been unable to change her forename on documents in common use. However while she has been able to change her name and key documentation, such as passport, driving licence etc., it is not contested by the Government that for legal purposes the applicant must, when required to disclose her sex, indicate that recorded at birth. This includes appearances in court and filling in contracts or employment applications or gaining access to official data systems (eg. police). Failure to disclose her birth gender may render her liable to the sanction of the criminal law (perjury etc.) or in breach of contract. Where there is any difference in legal regimes applying to men or women, the applicant will also remain subject to that applicable to her birth gender eg. retirement age, pension entitlements.   These instances differ considerably in their immediacy. That they are not hypothetical however is illustrated by the occasion when the applicant, in court as surety, was required to disclose her original birth name which was in stark contradiction to her physical appearance.   47.    The Commission is of the opinion that the applicant is subject to a real and continuous risk of intrusive and distressing enquiries and to an obligation to make embarrassing disclosures. While it might be said that, with care, such situations could be avoided, this in itself would threaten to impinge significantly on an individual's ability to develop and maintain relationships and to restrict the choices available in fulfilling personal and social potential. The Commission further recalls that, even where a person appears to suffer no immediate or direct consequences from an existing state of law, a disparity between an individual's private life and the law may, where it relates to an important element of personal identity, result in internal conflict or stigmatisation which per se impinges on the enjoyment of rights guaranteed under the Convention (eg. mutatis mutandis Eur. Court H.R. Dudgeon judgment of 22 October 1981 concerning the effect of criminal prohibition of adult homosexual activities and X. Y. and Z. v. the United Kingdom, No. 21830/93 Comm. Report 27.6.95 pending before the Court, which concerns primarily legal recognition of family relationships where there is a transsexual partner).   48.    To weigh in the balance against the applicant's interest is the interest of the general community. The Government have referred, expressly, to the concerns identified, and accepted by the Court, in the Cossey case (op. cit., paras. 18 and 38) in relation to entering the change of gender in the birth register. This is to the effect that the birth register is based on a system of historical fact which is generally accessible to the public. Any annotation could not be kept secret from third parties without a fundamental modification of the system and if secrecy was achieved, it could have considerable unintended results, for example, prejudicing the purpose and function of the register by complicating factual issues arising in the fields of family and succession law, and might deprive third parties of information which they had a legitimate interest to receive. The applicant argues that this does not furnish convincing justification, since it fails to detail any specific instance of objectionable complications which could in fact arise.   49.    The Commission has doubts as to the severity of the alleged detrimental   consequences of any alteration in the birth registration system in the United Kingdom. It notes that the number of requests for alteration of certificates was identified in a Parliamentary debate as being an average of thirty over a period of the last ten years (2 February 1996, Second Reading of a Private Member's Bill on Gender Identity (Registration and Civil Status)). While this cannot reflect the actual number of transsexuals in the United Kingdom, many of whom will not attempt to obtain a change, there is nothing in the material before the Commission to indicate that the scale of applications for change would be in itself a daunting feature. The argument that subsequent social or legal changes cannot feature in a historical system is flawed by the fact that the birth register system copes currently with recording adoptions. As regards the alleged problem of secrecy, the Commission understands the applicant's complaints to centre on the lack of legal recognition of the re-assignment of gender from the moment of that re-assignment. While the applicant does not agree with the Government's denial that complete rectification is possible, the matters relied on   before the Commission principally refer to the embarrassment of having to declare birth gender in official or legal contexts. There is no reference by the applicant to any fear of discovery or intrusion from third parties obtaining access to the birth register.   50.    It seems to the Commission that the record of gender in the birth register is in any event a secondary or indirect aspect of the case. The inability of the applicant to obtain legal recognition of her gender re-assignment derives from the principle in domestic law, established in the case of Corbett v. Corbett, that sex is fixed immutably by conventional biological considerations as existing at the time of birth. It would appear that domestic law could, by whatever means it found appropriate, provide for transsexuals to be given prospective legal recognition of their gender re-assignment, without necessarily destroying the historical nature of the birth register as a record of the facts as perceived at that time. If it is possible for documentation, such as passports and driving licences, to indicate the change of gender, it is not readily apparent why transsexuals should remain under a general obligation to declare their birth gender in other official or employment and contract contexts. While there may be a legitimate interest, for example, in the context of life insurance, for a person to be required to disclose details of medical history, there would appear to be no such automatic necessity to declare birth gender in subscribing to house insurance.   51.    The Commission nonetheless acknowledges that there are legitimate public interest considerations to weigh in the balance against the applicant's interests, where it is being claimed that established legal principles and practices require to be modified. It further recalls that the Court has previously stated that, as concerned transsexuals, where it considered that there was   little common ground in Contracting States and the law appeared to be in a transitional stage, the Contracting States enjoyed a wide margin of appreciation (see   Eur. Court H.R., Rees judgment of 17 October 1986, op. cit., p. 15, para. 37 and   Cossey judgment of 27 September 1990, op. cit., p. 16, para. 40). It is thus argued by the Government that where the phenomenon of transsexualism is still the subject of social, medical and scientific controversy, the position in the United Kingdom, where transsexuals are able to live in their new gender in society, obtaining change of name and identity documentation, must reasonably be within their margin of appreciation.   52.    In its report in the case of X. Y. and Z. (No. 21830/93 Comm. Report 27.6.95 pending before the Court and which concerns primarily respect for family life), the Commission was of the opinion that there was a clear trend in Contracting States towards the legal acknowledgement of gender re-assignment (see eg. the specific domestic legislation of Germany, Italy, the Netherlands, Sweden and Turkey, and also the Recommendation 1117(1989) of the Parliamentary Assembly of the Council of Europe on the condition of transsexuals, which recommends the introduction of legislation by member States, inter alia, to allow the rectification of birth registers). It further notes a recent development in the law of the European Union, extending protection to transsexuals in the employment sphere, the European Court of Justice finding that the dismissal of a transsexual because of gender re-assignment constituted discrimination on grounds of sex,   As the Government have pointed out, the judgment is limited in its scope and does not purport to give any opinion on the issues in this application. The Commission considers however that the judgment is a further authoritative recognition of the right of transsexuals to respect for their dignity and freedom on a footing of equality with non-transsexuals.   53.    As regards the scientific and medical developments to which the applicant refers, the Commission notes that the recent findings as to similarity in brain structure between biological females and male-to- female transsexuals are not, and are not claimed to be, conclusive or exhaustive. It agrees with the Government who point to the complexity of this area of continuing research. It is of the opinion however that it is more significant, whatever the cause of transsexualism (hormonal action on the brain of the foetus or young child, social and environmental influences, or a combination of any number of factors), that the medical profession has reached a consensus that transsexualism is an identifiable medical condition, gender dysphoria, in respect of which gender re-assignment treatment is ethically permissible and can be recommended for the purpose of improving the quality of life. As a result, the treatment is not only accessible, but provided by State medical establishments in a number of the Contracting States of the Council of Europe. In these circumstances, a certain social reluctance to accept, or suspicion of, the phenomenon of transsexualism and difficulties in assimilating it readily into existing legal frameworks cannot, in the Commission's view, be of decisive weight. It recalls that the social problems surrounding children born out of wedlock in previous years were not found to justify legal exclusion (see eg. Eur. Court H.R., Inze judgment of 28 October 1987, Series A no. 126).   54.    Having regard to the above, the Commission finds that the concerns put forward by the Government, even having regard to their margin of appreciation, are not sufficient to outweigh the interests of the applicant. Consequently, it finds that there has been a failure to respect her right to private life.         CONCLUSION   55.    The Commission concludes, by 15 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention.   D.     As regards Article 12 (Art. 12) of the Convention   56.    Article 12 (Art. 12) of the Convention provides:         "Men and women of marriageable age have the right to marry and       to found a family, according to the national laws governing the       exercise of this right."   57.    The applicant complains of a violation of her right to marry, since her change of gender is not taken into account and since she has been recorded at birth as being of the male sex, marriage to another person of the male sex is prohibited.   58.    The Government submit that there is no interference under this provision, since the Court and Commission have recognised that marriage may legitimately be restricted under national laws to union between a man and woman of biological origin.   59.    The Commission recalls that in the Rees and Cossey cases the Court held that there was no violation of Article 12 (Art. 12) in relation to the complaints of the applicants, transsexuals, that they were unable to marry a person of the sex opposite to their gender re- assignment. The Court (Cossey, paras. 45-46) stated that the criteria adopted by English law were in conformity with the concept of marriage to which Article 12 (Art. 12) refers and that the continued adoption of biological criteria for determining a person's sex for the purpose of marriage was a matter encompassed within the power of Contracting States to regulate by national law the exercise of the right to marry. The Commission followed this case-law in its decision on admissibility in the case of X., Y. and Z. (dec. 1.12.94 annexed to its report, op. cit.).   60.    Having regard to its conclusion above that there has been a failure to respect private life (para. 55), the Commission finds it unnecessary to examine separately the complaints under Article 12 (Art. 12) of the Convention.         CONCLUSION   61.    The Commission concludes, by 9 votes to 7, that the applicant's complaint under   Article 12 (Art. 12) of the Convention does not give rise to any separate issue.   E.     As regards Article 14 (Art. 14) of the Convention   62.    Article 14 (Art. 14) provides:         "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."   63.    The applicant complains that she is subject to discrimination as regards the inconsistency in practice of rectification of birth certificates as carried out by the United Kingdom authorities. This subjects her to an unjustifiable difference of treatment in respect of her rights under Articles 8 and 12 (Art. 8,12) of the Convention   64.    As regards the alleged discrimination, the Government consider that the applicant receives the same treatment as all persons in her position who have undergone gender re-assignment surgery. She cannot, in their submission, seek to compare herself with the category of persons who obtain rectification of the birth register as a result of a mistake made at the time of registration.   65.    The Commission recalls its findings above concerning the applicant's complaints under Articles 8 and 12 (Art. 8,12) of the Convention (paras. 55 and 61). In these circumstances it finds it unnecessary to determine separately whether this situation also discloses discrimination contrary to Article 14 (Art. 14) of the Convention.         CONCLUSION   66.    The Commission concludes, unanimously, that the applicant's complaint under   Article 14 (Art. 14) of the Convention does not give rise to any separate issue.   F.     As regards Article 13 (Art. 13) of the Convention   67.    Article 13 (Art. 13) of the Convention provides:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."   68.    The applicant submits that she has no effective remedy available to her in respect of her complaints. She states that case-law referring to the inapplicability of Article 13 (Art. 13) to legislation is irrelevant since there has been no legislative determination of the issues before the Commission.   69.    The Government submit that established case-law (eg. Eur. Court H.R. Lithgow and others judgment of 8 July 1986, Series A no. 102, para. 206) indicate that insofar as the applicant complains about the content of legislation Article 13 (Art. 13) does not require a remedy to be provided in domestic courts.   70.    The Commission notes that the applicant's complaints of alleged violations relate essentially to the state of United Kingdom law which fails to recognise the applicant's gender re-assignment. Article 13 (Art. 13) cannot however be interpreted as guaranteeing a remedy against, or judicial review of, domestic law (whether legislative or based on judicially developed common law) which is not considered to be in conformity with the Convention (mutatis mutandis, Application No. 10243/83, Dec. 6.3.85, D.R. 41 p. 123 and Young, James and Webster v. the United Kingdom, Comm. Rep. 14.12.79, para. 177, Eur. Court H.R., Series B no. 39, p. 49, paras. 174-178).         CONCLUSION   71.    The Commission concludes, unanimously, that there has been no violation of Article 13 (Art. 13) of the Convention.   G.     Recapitulation   72.    The Commission concludes, by 15 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention (para. 55).   73.    The Commission concludes, by 9 votes to 7, that   the applicant's complaint under   Article 12 (Art. 12) of the Convention does not give rise to any separate issue (para. 61).   74.    The Commission concludes, unanimously, that the applicant's complaint under   Article 14 (Art. 14) of the Convention does not give rise to any separate issue (para. 66).   75.    The Commission concludes, unanimously, that there has been no violation of Article 13 (Art. 13) of the Convention