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You are here: BAILII >> Databases >> European Court of Human Rights >> CHRISTINE GOODWIN v. THE UNITED KINGDOM - 28957/95 [2002] ECHR 588 (11 July 2002) URL: https://www.bailii.org/eu/cases/ECHR/2002/588.html Cite as: 35 EHRR 18, [2002] 35 EHRR 447, [2002] 2 FLR 487, (2002) 35 EHRR 447, [2002] ECHR 588, 13 BHRC 120, (2002) 35 EHRR 18, (2002) 67 BMLR 199, [2002] 35 EHRR 18, [2002] IRLR 664, [2002] Fam Law 738, [2002] 2 FCR 577, 35 EHRR 447 |
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CASE OF CHRISTINE GOODWIN
v.
THE
UNITED
KINGDOM
(Application no. 28957/95)
JUDGMENT
STRASBOURG
11 July 2002
This judgment is final but may be subject to editorial revision.
In the case of Christine Goodwin
v.
the
United
Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. WILDHABER, President,
Mr J.-P. COSTA,
Sir Nicolas BRATZA,
Mrs E. PALM,
Mr L. CAFLISCH,
Mr R. TüRMEN,
Mrs F. TULKENS,
Mr K. JUNGWIERT,
Mr M. FISCHBACH,
Mr V.
BUTKEVYCH,
Mrs N. VAJIć,
Mr J. HEDIGAN,
Mrs H.S. GREVE,
Mr A.B. BAKA,
Mr K. TRAJA,
Mr M. UGREKHELIDZE,
Mrs A. MULARONI, judges,
and also of Mr P. J. MAHONEY, Registrar,
Having deliberated in private on 20 March and 3 July 2002,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 28957/95)
against the United
Kingdom
of Great Britain and Northern
Ireland lodged with the
European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
United
Kingdom
national, Ms
Christine
Goodwin
(“the applicant”), on 5 June 1995.
2. The applicant, who had been granted legal aid, was represented
by Bindman & Partners, solicitors practising in
London. The United
Kingdom
Government (“the Government”) were represented by their Agent,
Mr D. Walton of
the Foreign and Commonwealth Office, London.
3. The applicant alleged violations
of Articles 8, 12, 13 and 14
of the Convention in respect of the legal status of transsexuals
in the
United
Kingdom
and particularly their treatment in the sphere of employment, social
security, pensions and marriage.
4. The application was declared admissible by the Commission on 1 December 1997 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date.
5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
7. On 11 September 2001, a Chamber of that Section, composed of the following judges: Mr J.-P. Costa, Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza and Mr K. Traja, and also of Mrs S. Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
8. The composition of the Grand Chamber was determined according
to the provisions of Article 27 §§ 2 and 3
of the Convention and Rule
24 of the Rules of Court. The President of the Court decided that in the
interests of the proper administration
of justice, the case should be assigned
to the Grand Chamber that had been constituted to hear the case of I. v.
the
United
Kingdom
(application no. 25680/94) (Rules 24, 43 § 2 and
71).
9. The applicant and the Government each filed a memorial on the merits. In addition, third-party comments were received from Liberty, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).
10. A hearing in this case and the case of I. v.
the
United
Kingdom
(no. 25680/94) took place in public in the Human Rights
Building, Strasbourg, on 20 March 2002 (Rule 59 § 2).
There appeared before the Court:
(a) for the Government
Mr D. WALTON, Agent,
Mr RABINDER SINGH, Counsel,
Mr J. STRACHAN, Counsel,
Mr C. LLOYD,
Ms A. POWICK,
Ms S. EISA, Advisers;
(b) for the applicant
Ms L. COX, Q.C., Counsel,
Mr T. EICKE, Counsel,
Ms J. SOHRAB, Solicitor.
The applicant was also present.
The Court heard addresses by Ms Cox and Mr Rabinder Singh.
11. On 3 July 2002, Mrs Tsatsa-Nikolovska and Mr Zagrebelsky who were unable to take part in further consideration of the case, were replaced by Mrs Mularoni and Mr Caflisch.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant is a United
Kingdom
citizen born in 1937 and is
a post-operative male to female transsexual.
13. The applicant had a tendency to dress as a woman from early
childhood and underwent aversion therapy in 1963-64. In
the mid-1960s, she was
diagnosed as a transsexual. Though she married a woman and they had four
children, her conviction was that
her “brain sex” did not fit her
body. From that time until 1984 she dressed as a man for work but as a woman in
her
free time. In January 1985, the applicant began treatment in earnest,
attending appointments once every three months at the Gender
Identity Clinic at
the Charing Cross Hospital, which included regular consultations with a
psychiatrist as well as on occasion
a psychologist. She was prescribed hormone
therapy, began attending grooming classes and voice
training. Since this time,
she has
lived fully as a woman. In October 1986, she underwent surgery to
shorten her
vocal
chords. In August 1987, she was accepted on
the waiting list
for gender re-assignment surgery. In 1990, she underwent gender re-assignment
surgery at a National Health Service
hospital. Her treatment and surgery was
provided for and paid for by the National Health Service.
14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children.
15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual.
16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back.
17. The DSS Contributions Agency informed the applicant that she
would be ineligible for a State pension at the age of
60, the age of entitlement
for women in the United
Kingdom.
In April 1997, the DSS informed the applicant
that her pension contributions
would have to be continued until the date at
which she reached the age of 65, being the age of entitlement for men, namely
April
2002. On 23 April 1997, she therefore entered into an undertaking with the
DSS to pay direct the NI contributions which would otherwise
be deducted by her
employer as for all male employees. In the light of this undertaking, on 2 May
1997, the DSS Contributions Agency
issued the applicant with a Form CF 384 Age
Exemption Certificate (see Relevant domestic law and practice below).
18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth.
19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Names
20. Under English law, a person is entitled to adopt such first
names or surname as he or she wishes. Such names are valid
for the purposes of
identification and may be used in passports, driving licences, medical and
insurance cards, etc. The new names
are also entered on the electoral roll.
B. Marriage and definition of gender in domestic law
21. Under English law, marriage is defined as the voluntary
union
between a man and a woman. In the case of Corbett
v.
Corbett ([1971]
Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be
determined by the application of chromosomal,
gonadal and genital tests where
these are congruent and without regard to any surgical intervention. This use of
biological criteria
to determine sex was approved by the Court of Appeal in
R.
v.
Tan ([1983] Queen's Bench Reports 1053) and given more
general application, the court holding 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
reassignment therapy.
22. Under section 11(b) of the Matrimonial Causes Act 1973, any
marriage where the parties are not respectively male and
female is void.
The
test applied as to the sex of the partners to a marriage is that laid down in
the above-mentioned case of Corbett
v.
Corbett. According to that
same decision a marriage between a male-to-female transsexual and a man might
also be avoided on the basis that
the transsexual was incapable of consummating
the marriage in the context of ordinary and complete sexual intercourse
(obiter per Mr Justice Ormrod).
This decision was reinforced by Section 12(a) of the Matrimonial Causes Act
1973, according to which a marriage that has not been
consummated owing to the
incapacity of either party to consummate may be voidable.
Section 13(1) of the
Act provides that the court
must not grant a decree of nullity if it is
satisfied that the petitioner knew the marriage was
voidable,
but led the
respondent
to believe that she would not seek a decree of nullity, and that it
would be unjust to grant the decree.
C. Birth certificates
23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act 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 a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.
24. The sex of the child must be entered on the birth certificate.
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) as laid down by Mr Justice Ormrod in the
above-mentioned case of Corbett v.
Corbett.
25. 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. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. 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.
26. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
D. Social security, employment and pensions
27. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth.
1. National Insurance
28. The DSS registers every British citizen for National Insurance
purposes (“NI”) on the basis of the information
in their birth
certificate. Non-British citizens who wish to register for NI in the United
Kingdom
may use their passport or identification
card as evidence of identity if
a birth certificate is unavailable.
29. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders.
30. Under Regulation 44 of the Social Security (Contributions) Regulations 1979, made under powers conferred by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them.
31. Under Regulation 45 of the 1979 Regulations, an employee is under an obligation to supply his NI number to his employer on request.
32. Section 112(1) of the Social Security Administration Act 1992 provides:
“(1) If a person for the purpose of obtaining any benefit or other payment under the legislation ...[as defined in section 110 of the Act]... whether for himself or some other person, or for any other purpose connected with that legislation -
(a) makes a statement or representation which he knows to be false; or
(b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, he shall be guilty of an offence.”
33. It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number.
34. Any person may adopt such first name, surname or style of
address (e.g. Mr, Mrs, Miss, Ms) that he or she wishes for
the purposes of the
name used for NI registration. The DSS will record any such amendments on the
person's computer records, manual
records and NI number card. But, the DSS
operates a policy of only issuing one NI number for each person regardless of
any changes
that occur to that person's sexual identity through procedures such
as gender re-assignment surgery. A renewed application for leave
to apply for
judicial review of the legality of this policy brought by a male-to-female
transsexual was dismissed by the Court
of Appeal in the case of R v.
Secretary of State for Social Services ex parte Hooker (1993) (unreported).
McCowan LJ giving the judgment of the Court stated (at page 3 of the
transcript):
“...since it will not make the slightest practical difference, far from the Secretary of State's decision being an irrational one, I consider it a perfectly rational decision. I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when, in fact, its practical effect would be nil.”
35. Information held in the DSS NI records is confidential and
will not normally be disclosed to third parties without
the consent of the
person concerned. Exceptions are possible in cases where the public interest is
at stake or the disclosure is
necessary to protect public funds. By virtue
of
Section 123 of the Social Security Administration Act 1992, it is an offence for
any person employed in social security administration to disclose without lawful
authority information acquired in the course of
his or her employment.
36. The DSS operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive. Access to these records is controlled by DSS management. Any computer printer output from these records will normally be referred to a special section within the DSS to ensure that identity details conform with those requested by the relevant person.
37. NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.
38. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.
2. State pensions
39. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women.
40. A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases:
In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the claimant's appeal and stated at paragraph 9 of his decision:
“(a) In my view,
the word “woman” in section 27
of the Act means a person who is biologically a woman.
Sections 28 and 29
contain many references to a woman in terms which indicate that a person is
denoted who is capable of forming
a
valid
marriage with a husband. That can only
be a person who is biologically a woman.
(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ...
(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”
41. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete. As regards the issue of free bus passes in London, which also differentiated between men and women concerning age of eligibility (65 and 60 respectively), the Government have also announced plans to introduce a uniform age.
3. Employment
42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages.
43. In its judgment of 30 April 1996, in the case of P. v.
S.
and Cornwall County Council, the European Court of Justice (ECJ) held that
discrimination arising from gender reassignment constituted discrimination on
grounds
of sex and, accordingly, Article 5 § 1 of Council Directive
76/207/EEC of 9 February 1976 on the implementation of the
principle of
equal treatment for men 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 reassignment. The ECJ held,
rejecting the argument of the
United
Kingdom
Government 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 reassignment, 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 reassignment.
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.” (paragraphs 21–22)
44. The ruling of the ECJ was applied by the Employment Appeal
Tribunal in a decision handed down on 27 June 1997 (Chessington World of
Adventures Ltd v.
Reed [1997] 1 Industrial Law Reports).
45. The Sexual Discrimination (Gender Re-assignment) Regulations
1999 were issued to comply with the ruling of the European
Court of Justice in
P. v.
S. and Cornwall County Council (30 April 1996). This provides
generally that transsexual persons should not be treated less favourably in
employment because they
are transsexual (whether pre- or post-operative).
E. Rape
46. Prior to 1994, for the purposes of the law of rape, a
male-to-female transsexual would have been regarded as a male.
Pursuant to
section 142 of the Criminal Justice and Public Order Act 1994, for rape to be
established there has to be “vaginal
or anal intercourse with a
person”. In a judgment of 28 October 1996, the Reading Crown Court found
that penile penetration
of a male to female transsexual's artificially
constructed
vagina
amounted to rape: R.
v.
Matthews (unreported).
F. Imprisonment
47. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively).
48. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76).
G. Current developments
1. Review of the situation of transsexuals in the United
Kingdom
49. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference:
“to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.”
50. The Working Group produced a report in April 2000 in which it
examined the current position of transsexuals in the
United
Kingdom,
with
particular reference to their status under national law and the changes which
might be made. It concluded:
“5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change.
5.2. Measures have already been taken in a number of areas to
assist transsexual people. For example, discrimination in
employment against
people on the basis of their transsexuality has been prohibited by the Sex
Discrimination (Gender Reassignment)
Regulations 1999 which, with few
exceptions, provide that a transsexual person (whether pre- or post-operative)
should not be treated
less favourably because they are transsexual. The criminal
justice system (i.e. the police, prisons, courts, etc.) try to accommodate
the
needs of transsexual people so far as is possible within operational
constraints. A transsexual offender will normally be charged
in their acquired
gender, and a post-operative prisoner will usually be sent to a prison
appropriate to their new status. Transsexual
victims
and witnesses will, in most
circumstances, similarly be treated as belonging to their acquired gender.
5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender.
5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes.
5.5. We have identified three options for the future;
– to leave the current situation unchanged;
– to issue birth certificates showing the new name and, possibly, the new gender;
– to grant full legal recognition of the new gender subject to certain criteria and procedures.
We suggest that before taking a view
on these options the Government may wish
to put the issues out to public consultation.”
51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site.
2. Recent domestic case-law
52. In the case of Bellinger v.
Bellinger, EWCA Civ 1140
[2001], 3 FCR 1, the appellant who had been classified at birth as a
man had undergone gender re-assignment
surgery and in 1981 had gone through a
form of marriage with a man who was aware of her background. She sought a
declaration under
the Family Law Act 1986 that the marriage was
valid.
The Court
of Appeal held, by a majority, that the appellant's marriage was
invalid as the
parties were not respectively male and female, which terms were to be determined
by biological criteria as set out
in the decision of Corbett
v.
Corbett
[1971]. Although it was noted that there was an increasing emphasis upon the
impact of psychological factors on gender, there was
no clear point at which
such factors could be said to have effected a change of gender. A person
correctly registered as male at
birth, who had undergone gender reassignment
surgery and was now living as a woman was biologically a male and therefore
could
not be defined as female for the purposes of marriage. It was for
Parliament, not for the courts, to decide at what point it would
be appropriate
to recognise that a person who had been assigned to one sex at birth had changed
gender for the purposes of marriage.
Dame Elizabeth Butler-Sloss, President of
the Family Division noted the warnings of the European Court of Human Rights
about continued
lack of response to the situation of transsexuals and observed
that largely as a result of these criticisms an interdepartmental
working group
had been set up, which had in April 2000 issued a careful and comprehensive
review of the medical condition, current
practice in other countries and the
state of English law in relevant aspects of the life of an individual:
“[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion.
[96.] To our dismay, we were informed that no steps whatsoever
have been, or to the knowledge of Mr Moylan, were intended
to be, taken to carry
this matter forward. It appears, therefore, that the commissioning and
completion of the report is the sum
of the activity on the problems identified
both by the Home Secretary in his terms of reference, and by the conclusions of
the
members of the working group. That would seem to us to be a failure to
recognise the increasing concerns and changing attitudes
across western Europe
which have been set out so clearly and strongly in judgments of Members of the
European Court at Strasbourg,
and which in our view
need to be addressed by the
UK...
[109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.”
53. In his dissenting judgment, Lord Justice Thorpe considered
that the foundations of the judgment in Corbett v.
Corbett were no longer
secure, taking the
view
that an approach restricted to biological criteria was
no longer permissible in the light
of scientific, medical and social change.
“[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth...
[160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.”
He also noted the lack of progress in domestic reforms:
“[151.] ...although the [interdepartmental] report has been
made available by publication, Mr Moylan said that there
has since been no
public consultation. Furthermore when asked whether the Government had any
present intention of initiating public
consultation or any other process in
preparation for a parliamentary Bill, Mr Moylan said that he had no
instructions. Nor did
he have any instructions as to whether the Government
intended to legislate. My experience over the last 10 years suggests how hard
it
is for any department to gain a slot for family law reform by primary
legislation. These circumstances reinforce my view
that
it is not only open to
the court but it is its duty to construe s 11(c) either strictly, alternatively
liberally as the evidence
and the submissions in this case justify.”
3. Proposals to reform the system of registration of births, marriages and deaths
54. In January 2002, the Government presented to Parliament the
document “Civil Registration: Vital
Change (Birth,
Marriage and Death
Registration in the 21st Century)” which set out plans for
creating a central database of registration records which moves away from a
traditional
snapshot of life events towards the concept of a living record or
single “through life” record:
“In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” (para. 5.1)
“5.5 Making changes
There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...”
H. Liberty's third party intervention
55. Liberty updated the written observations submitted in the case
of Sheffield and Horsham concerning the legal recognition
of transsexuals in
comparative law (Sheffield and Horsham v.
the
United
Kingdom
judgment of 30 July
1998, Reports of Judgments and Decisions 1998-
V,
p. 2021,
§ 35). In its 1998 study, it had found that over the previous decade
there had been an unmistakable trend
in the member States of the Council of
Europe towards giving full legal recognition to gender re-assignment. In
particular, it
noted that out of thirty seven countries analysed only four
(including the
United
Kingdom)
did not permit a change to be made to
a person's
birth certificate in one form or another to reflect the re-assigned sex of that
person. In cases where gender re-assignment
was legal and publicly funded, only
the
United
Kingdom
and Ireland did not give full legal recognition to the new
gender identity.
56. In its follow up study submitted on 17 January 2002, Liberty
noted that while there had not been a statistical increase
in States giving full
legal recognition of gender re-assignment within Europe, information from
outside Europe showed developments
in this direction. For example, there had
been statutory recognition of gender re-assignment in Singapore, and a similar
pattern
of recognition in Canada, South Africa, Israel, Australia, New Zealand
and all except two of the States of the United
States of
America. It cited in
particular the cases of Attorney-General
v.
Otahuhu Family Court [1995] 1
NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia
transsexual persons' assigned sex was recognised for the purposes of
validating
their marriages: In the latter case, Mr Justice Chisholm held:
“I see no basis in legal principle or policy why Australian law should
follow the decision in Corbett. To do so would, I think,
create indefensible
inconsistencies between Australian marriage law and other Australian laws. It
would take the law in a direction
that is generally contrary to development in
other countries. It would perpetuate a view
that flies in the face of current
medical
understanding and practice. Most of all, it would impose indefensible
suffering on people who have already had more than their share
of difficulty,
with no benefit to society...
...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'.
To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage...
For the purpose of ascertaining the validity
of a marriage under Australian
law the question whether a person is a man or a woman
is to be determined as of
the date of marriage...”
57. As regarded the eligibility of post-operative transsexuals to
marry a person of sex opposite to their acquired gender,
Liberty's survey
indicated that 54% of Contracting States permitted such marriage (Annex 6 listed
Austria, Belgium, Denmark, Estonia,
Finland, France, Germany, Greece, Iceland,
Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden,
Switzerland,
Turkey and Ukraine), while 14% did not (Ireland and the United
Kingdom
did not permit marriage, while no legislation existed in
Moldova,
Poland, Romania and Russia). The legal position in the remaining 32% was
unclear.
III. INTERNATIONAL TEXTS
58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides:
“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
THE LAW
I. ALLEGED VIOLATION
OF ARTICLE 8 OF THE CONVENTION
59. The applicant claims a violation
of Article 8 of the
Convention, the relevant part of which provides as follows:
“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.”
A. Arguments of the parties
1. The applicant
60. The applicant submitted that despite warnings from the Court
as to the importance for keeping under review the need
for legal reform the
Government had still not taken any constructive steps to address the suffering
and distress experienced by
the applicant and other post-operative transsexuals.
The lack of legal recognition of her changed gender had been the cause of
numerous discriminatory and humiliating experiences in her everyday life. In the
past, in particular from 1990 to 1992, she was
abused at work and did not
receive proper protection against discrimination. She claimed that all the
special procedures through
which she had to go in respect of her NI
contributions and State retirement pension constituted in themselves an
unjustified difference
in treatment, as they would have been unnecessary had she
been recognised as a woman for legal purposes. In particular, the very
fact that
the DSS operated a policy of marking the records of transsexuals as sensitive
was a difference in treatment. As a result,
for example, the applicant cannot
attend the DSS without having to make a special appointment.
61. The applicant further submitted that the danger of her employer learning about her past identity was real. It was possible for the employer to trace back her employment history on the basis of her NI number and this had in fact happened. She claimed that her recent failure to obtain a promotion was the result of the employer realising her status.
62. As regarded pensionable age, the applicant submitted that she had worked for 44 years and that the refusal of her entitlement to a State retirement pension at the age of 60 on the basis of the pure biological test for determining sex was contrary to Article 8 of the Convention. She was similarly unable to apply for a free London bus pass at the age of 60 as other women were but had to wait until the age of 65. She was also required to declare her birth sex or disclose her birth certificate when applying for life insurance, mortgages, private pensions or car insurance, which led her not to pursue these possibilities to her advantage.
63. The applicant argued that rapid changes, in respect of the
scientific understanding of, and the social attitude towards,
transsexualism
were taking place not only across Europe but elsewhere. She referred, inter
alia, to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164
of 14 April 1982 of Italy, and Article 29 of the Civil Code
of Turkey as amended
by Law No. 3444 of 4 May 1988, which allowed the amendment of civil status.
Also, under a 1995 New Zealand
statute, Part V,
Section 28, a court could order
the legal recognition of the changed gender of a transsexual after examination
of medical and other evidence. The applicant saw no convincing reason why a
similar approach should not be adopted in the
United
Kingdom.
The applicant also
pointed to increasing social acceptance of transsexuals and interest in issues
of concern to them reflected
by coverage in the press, radio and television,
including sympathetic dramatisation of transsexual characters in mainstream
programming.
2. The Government
64. Referring to the Court's case-law, the Government maintained
that there was no generally accepted approach among the
Contracting States in
respect of transsexuality and that, in view
of the margin of appreciation left
to States under the Convention,
the lack of recognition in the
United
Kingdom
of
the applicant's new gender identity for legal purposes did not entail a
violation
of Article 8 of the Convention. They disputed the applicant's
assertion that scientific research and “massive societal changes”
had led to wide acceptance, or consensus on issues, of transsexualism.
65. The Government accepted that there may be specific instances
where the refusal to grant legal recognition of a transsexual's
new sexual
identity may amount to a breach of Article 8, in particular where the
transsexual as a result suffered practical and
actual detriment and humiliation
on a daily basis (see the B. v.
France judgment of 25 March 1992, Series A no.
232-C, pp. 52-54,
§§ 59-63). However, they denied that the applicant
faced any comparable practical disadvantages, as she had been able
inter
alia to obtain important identification documents showing her chosen names
and sexual identity (e.g. new passport and driving licence).
66. As regards the specific difficulties claimed by the applicant,
the Government submitted that an employer was unable
to establish the sex of the
applicant from the NI number itself since it did not contain any encoded
reference to her sex. The
applicant had been issued with a new NI card with her
changed name and style of address. Furthermore, the DSS had a policy of
confidentiality
of the personal details of a NI number holder and, in
particular, a policy and procedure for the special protection of transsexuals.
As a result, an employer had no means of lawfully obtaining information from the
DSS about the previous sexual identity of an employee.
It was also in their view
highly unlikely that the applicant's employer would discover her change of
gender through her NI number
in any other way. The refusal to issue a new NI
number was justified, the uniqueness of the NI number being of critical
importance
in the administration of the national insurance system, and for the
prevention of the fraudulent use of old NI numbers.
67. The Government argued that the applicant's fear that her previous sexual identity would be revealed upon reaching the age of 60, when her employer would no longer be required to make NI contribution deductions from her pay, was entirely without foundation, the applicant having already been issued with a suitable Age Exemption Certificate on Form CF384.
68. Concerning the impossibility for the applicant to obtain a
State retirement pension at the age of 60, the Government
submitted that the
distinction between men and women as regarded pension age had been held to be
compatible with European Community
law (Article 7(1)(a) of Directive 79/7/EEC;
European Court of Justice, R. v.
Secretary of State for Social Security ex
parte Equal Opportunities Commission Case C-9/91 [1992] ECR I-4927).
Also, since the preserving of the applicant's legal status as a man was not
contrary as such to Article
8 of the Convention, it would constitute favourable
treatment unfair to the general public to allow the applicant's pension
entitlement
at the age of 60.
69. Finally, as regards allegations of assault and abuse at work, the Government submitted that the applicant could have pressed charges under the criminal law against harassment and assault. Harassment in the workplace on the grounds of transsexuality would also give rise to a claim under the Sex Discrimination Act 1975 where the employers knew of the harassment and took no steps to prevent it. Adequate protection was therefore available under domestic law.
70. The Government submitted that a fair balance had therefore been struck between the rights of the individual and the general interest of the community. To the extent that there were situations where a transsexual may face limited disclosure of their change of sex, these situations were unavoidable and necessary e.g. in the context of contracts of insurance where medical history and gender affected the calculation of premiums.
B. The Court's assessment
1. Preliminary considerations
71. This case raises the issue whether or not the respondent State has failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transsexual, to respect for her private life, in particular through the lack of legal recognition given to her gender re-assignment.
72. The Court recalls that the notion of “respect” as
understood in Article 8 is not clear cut, especially
as far as the positive
obligations inherent in that concept are concerned: having regard to the
diversity of practices followed
and the situations obtaining in the Contracting
States, the notion's requirements will vary
considerably from case to case and
the margin of appreciation to be accorded to the authorities may be wider than
that applied in other areas under the Convention.
In determining whether or not
a positive obligation exists, regard must also 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 (Cossey
v.
the
United
Kingdom
judgment of 27 September 1990,
Series A no. 184, p. 15, § 37).
73. The Court recalls that it has already examined complaints
about the position of transsexuals in the United
Kingdom
(see the Rees
v.
the
United
Kingdom
judgment of 17 October 1986, Series A no. 106, the Cossey
v.
the
United
Kingdom
judgment, cited
above; the X., Y. and Z.
v.
the
United
Kingdom
judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II,
and the Sheffield and Horsham
v.
the
United
Kingdom
judgment of 30 July 1998,
Reports 1998-
V,
p. 2011). In those cases, it held that the refusal of the
United
Kingdom
Government to alter the register of births or to
issue birth
certificates whose contents and nature differed from those of the original
entries concerning the recorded gender of
the individual could not be considered
as an interference with the right to respect for private life (the
above-mentioned Rees
judgment, p. 14, § 35, and Cossey judgment,
p. 15, § 36). It also held that there was no positive obligation
on the Government to alter their existing system for the registration of births
by establishing a new system or type of documentation
to provide proof of
current civil status. Similarly, there was no duty on the Government to permit
annotations to the existing
register of births, or to keep any such annotation
secret from third parties (the above-mentioned Rees judgment, p. 17, §
42, and Cossey judgment, p. 15, §§ 38-39). It was found in
those cases that the authorities had taken steps to minimise intrusive enquiries
(for example,
by allowing transsexuals to be issued with driving licences,
passports and other types of documents in their new name and gender).
Nor had it
been shown that the failure to accord general legal recognition of the change of
gender had given rise in the applicants'
own case histories to detriment of
sufficient seriousness to override the respondent State's margin of appreciation
in this area
(the Sheffield and Horsham judgment cited above, p. 2028-29, §
59).
74. While the Court is not formally bound to follow its previous
judgments, it is in the interests of legal certainty,
foreseeability and
equality before the law that it should not depart, without good reason, from
precedents laid down in previous
cases (see, for example, Chapman v.
the
United
Kingdom
[GC], no. 27238/95, ECHR 2001-I, § 70). However, since
the Convention is first and foremost a system for the protection of
human
rights, the Court must have regard to the changing conditions within the
respondent State and within Contracting States generally
and respond, for
example, to any evolving convergence as to the standards to be achieved (see,
amongst other authorities, the Cossey
judgment, p. 14, § 35, and
Stafford
v.
the
United
Kingdom
[GC], no. 46295/99, judgment of 28 May
2002, to be published in ECHR 2002-, §§ 67-68). It is of crucial
importance that
the Convention is interpreted and applied in a manner which
renders its rights practical and effective, not theoretical and illusory.
A
failure by the Court to maintain a dynamic and evolutive approach would indeed
risk rendering it a bar to reform or improvement
(see the above-cited
Stafford
v. the
United
Kingdom
judgment, § 68). In the present
context the Court has, on several occasions since 1986, signalled its
consciousness of the
serious problems facing transsexuals and stressed the
importance of keeping the need for appropriate legal measures in this area
under
review (see the Rees judgment, § 47; the Cossey judgment, § 42; the
Sheffield and Horsham judgment, § 60).
75. The Court proposes therefore to look at the situation within
and outside the Contracting State to assess “in
the light of present-day
conditions” what is now the appropriate interpretation and application of
the Convention (see the
Tyrer v.
the
United
Kingdom
judgment of 25 April
1978, Series A no. 26, § 31, and subsequent case-law).
2. The applicant's situation as a transsexual
76. The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female, she has had to obtain an exemption certificate which allows the payments from her employer to stop while she continues to make such payments herself. Though the Government submitted that this made due allowance for the difficulties of her position, the Court would note that she nonetheless has to make use of a special procedure that might in itself call attention to her status.
77. It must also be recognised that serious interference with
private life can arise where the state of domestic law conflicts
with an
important aspect of personal identity (see, mutatis mutandis, Dudgeon v.
the
United
Kingdom
judgment of 22 October 1981, Series A no. 45, § 41). The
stress and alienation arising from
a discordance between the position in society
assumed by a post-operative transsexual and the status imposed by law which
refuses
to recognise the change of gender cannot, in the Court's
view,
be
regarded as a minor inconvenience arising from a formality. A
conflict between
social reality and law arises which places the transsexual in an anomalous
position, in which he or she may experience
feelings of
vulnerability,
humiliation and anxiety.
78. In this case, as in many others, the applicant's gender
re-assignment was carried out by the national health service,
which recognises
the condition of gender dysphoria and provides, inter alia, re-assignment
by surgery, with a view
to achieving as one of its principal purposes as close
an assimilation as possible to the
gender in which the transsexual perceives
that he or she properly belongs. The Court is struck by the fact that
nonetheless the
gender re-assignment which is lawfully provided is not met with
full recognition in law, which might be regarded as the final and
culminating
step in the long and difficult process of transformation which the transsexual
has undergone. The coherence of the
administrative and legal practices within
the domestic system must be regarded as an important factor in the assessment
carried
out under Article 8 of the Convention. Where a State has authorised the
treatment and surgery alleviating the condition of a transsexual,
financed or
assisted in financing the operations and indeed permits the artificial
insemination of a woman living with a female-to-male
transsexual (as
demonstrated in the case of X., Y. and Z.
v. the
United
Kingdom,
cited
above), it appears illogical to refuse
to recognise the legal implications of
the result to which the treatment leads.
79. The Court notes that the unsatisfactory nature of the current
position and plight of transsexuals in the United
Kingdom
has been acknowledged
in the domestic courts (see Bellinger
v.
Bellinger, cited above,
paragraph 52) and by the Interdepartmental Working Group which surveyed the
situation in the
United
Kingdom
and concluded
that, notwithstanding the
accommodations reached in practice, transsexual people were conscious of certain
problems which did not
have to be faced by the majority of the population
(paragraph 50 above).
80. Against these considerations, the Court has examined the
countervailing arguments of a public interest nature put
forward as justifying
the continuation of the present situation. It observes that in the previous
United
Kingdom
cases weight was
given to medical and scientific considerations,
the state of any European and international consensus and the impact of any
changes
to the current birth register system.
3. Medical and scientific considerations
81. It remains the case that there are no conclusive findings as
to the cause of transsexualism and, in particular, whether
it is wholly
psychological or associated with physical differentiation in the brain. The
expert evidence in the domestic case of
Bellinger v.
Bellinger was found
to indicate a growing acceptance of findings of sexual differences in the brain
that are determined pre-natally, though
scientific proof for the theory was far
from complete. The Court considers it more significant however that
transsexualism has
wide international recognition as a medical condition for
which treatment is provided in order to afford relief (for example, the
Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis
of transsexualism with “gender identity
disorder”; see also the
International Classification of Diseases, tenth edition (ICD-10)). The
United
Kingdom
national health
service, in common with the
vast
majority of Contracting
States, acknowledges the existence of the condition and provides or permits
treatment, including irreversible surgery. The medical and surgical acts which
in this case rendered the gender re-assignment possible
were indeed carried out
under the supervision of the national health authorities. Nor, given the
numerous and painful interventions
involved in such surgery and the level of
commitment and conviction required to achieve a change in social gender role,
can it
be suggested that there is anything arbitrary or capricious in the
decision taken by a person to undergo gender re-assignment. In
those
circumstances, the ongoing scientific and medical debate as to the exact causes
of the condition is of diminished relevance.
82. While it also remains the case that a transsexual cannot
acquire all the biological characteristics of the assigned
sex (Sheffield and
Horsham, cited above, p. 2028, § 56), the Court notes that with
increasingly sophisticated surgery and
types of hormonal treatments, the
principal unchanging biological aspect of gender identity is the chromosomal
element. It is known
however that chromosomal anomalies may arise naturally (for
example, in cases of intersex conditions where the biological criteria
at birth
are not congruent) and in those cases, some persons have to be assigned to one
sex or the other as seems most appropriate
in the circumstances of the
individual case. It is not apparent to the Court that the chromosomal element,
amongst all the others,
must inevitably take on decisive significance for the
purposes of legal attribution of gender identity for transsexuals (see the
dissenting opinion of Thorpe LJ in Bellinger v.
Bellinger cited in
paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re
Kevin, cited in paragraph 55 above).
83. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals.
4. The state of any European and international consensus
84. Already at the time of the Sheffield and Horsham case, there
was an emerging consensus within Contracting States in
the Council of Europe on
providing legal recognition following gender re-assignment (see § 35 of
that judgment). The latest
survey submitted by Liberty in the present case shows
a continuing international trend towards legal recognition (see paragraphs
55-56
above). In Australia and New Zealand, it appears that the courts are moving away
from the biological birth view
of sex (as
set out in the
United
Kingdom
case of
Corbett
v.
Corbett) and taking the
view
that sex, in the context of a
transsexual wishing to marry, should depend on a multitude of factors to be
assessed at the time of the marriage.
85. The Court observes that in the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (see § 37). In the later case of Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.
5. Impact on the birth register system
86. In the Rees case, the Court allowed that great importance could be placed by the Government on the historical nature of the birth record system. The argument that allowing exceptions to this system would undermine its function weighed heavily in the assessment.
87. It may be noted however that exceptions are already made to
the historic basis of the birth register system, namely,
in the case of
legitimisation or adoptions, where there is a possibility of issuing updated
certificates to reflect a change in
status after birth. To make a further
exception in the case of transsexuals (a category estimated as including some
2,000-5,000
persons in the United
Kingdom
according to the Interdepartmental
Working Group Report, p. 26) would not, in the Court's
view,
pose
the threat of
overturning the entire system. Though previous reference has been made to
detriment suffered by third parties who
might be unable to obtain access to the
original entries and to complications occurring in the field of family and
succession law
(see the Rees judgment, p. 18, § 43), these assertions are
framed in general terms and the Court does not find, on the basis
of the
material before it at this time, that any real prospect of prejudice has been
identified as likely to arise if changes were
made to the current system.
88. Furthermore, the Court notes that the Government have recently issued proposals for reform which would allow ongoing amendment to civil status data (see paragraph 54). It is not convinced therefore that the need to uphold rigidly the integrity of the historic basis of the birth registration system takes on the same importance in the current climate as it did in 1986.
6. Striking a balance in the present case
89. The Court has noted above (paragraphs 76-79) the difficulties
and anomalies of the applicant's situation as a post-operative
transsexual. It
must be acknowledged that the level of daily interference suffered by the
applicant in B. v.
France (judgment of
25 March 1992, Series A no. 232) has
not been attained in this case and that on certain points the risk of
difficulties or
embarrassment faced by the present applicant may be avoided or
minimised by the practices adopted by the authorities.
90. Nonetheless, the very
essence of the Convention is respect for
human dignity and human freedom. Under Article 8 of
the Convention in
particular, where the notion of personal autonomy is an important principle
underlying the interpretation of
its guarantees, protection is given to the
personal sphere of each individual, including the right to establish details of
their
identity as individual human beings (see, inter alia, Pretty
v.
the
United
Kingdom,
no. 2346/02, judgment of 29 April 2002, § 62, and
Mikulić
v.
Croatia, no. 53176/99, judgment of 7 February 2002,
§ 53, both to be published in ECHR 2002-...). In the twenty first century
the right
of transsexuals to personal development and to physical and moral
security in the full sense enjoyed by others in society cannot
be regarded as a
matter of controversy requiring the lapse of time to cast clearer light on the
issues involved. In short, the
unsatisfactory situation in which post-operative
transsexuals live in an intermediate zone as not quite one gender or the other
is no longer sustainable. Domestic recognition of this evaluation may be found
in the report of the Interdepartmental Working Group
and the Court of Appeal's
judgment of Bellinger
v.
Bellinger (see paragraphs 50, 52-53).
91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.
92. In the previous cases from the United
Kingdom,
this Court has
since 1986 emphasised the importance of keeping the
need for appropriate legal
measures under review having regard to scientific and societal developments (see
references at paragraph
73). Most recently in the Sheffield and Horsham case in
1998, it observed that the respondent State had not yet taken any steps
to do so
despite an increase in the social acceptance of the phenomenon of transsexualism
and a growing recognition of the problems
with which transsexuals are confronted
(cited above, paragraph 60). Even though it found no
violation
in that case, the
need to
keep this area under review was expressly re-iterated. Since then, a
report has been issued in April 2000 by the Interdepartmental
Working Group
which set out a survey of the current position of transsexuals in inter
alia criminal law, family and employment matters and identified
various
options for reform. Nothing has effectively been done to further
these proposals
and in July 2001 the Court of Appeal noted that there were no plans to do so
(see paragraphs 52-53). It may be
observed that the only legislative reform of
note, applying certain non-discrimination provisions to transsexuals, flowed
from
a decision of the European Court of Justice of 30 April 1996 which held
that discrimination based on a change of gender was equivalent
to discrimination
on grounds of sex (see paragraphs 43-45 above).
93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.
II. ALLEGED VIOLATION
OF ARTICLE 12 OF THE CONVENTION
94. The applicant also claimed a violation
of Article 12 of the
Convention, which provides as follows:
“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.”
A. Arguments of the parties
1. The applicant
95. The applicant complained that although she currently enjoyed a
full physical relationship with a man, she and her
partner could not marry
because the law treated her as a man. She argued that the Corbett v.
Corbett definition of a person's sex for the purpose of marriage had been
shown no longer to be sufficient in the recent case of Bellinger
v.
Bellinger and that even if a reliance on biological criteria remained
acceptable, it was a breach of Article 12 to use only some of those
criteria for
determining a person's sex and excluding those who failed to fulfil those
elements.
2. The Government
96. The Government referred to the Court's previous case-law (the
above-cited Rees, Cossey and Sheffield and Horsham judgments)
and maintained
that neither Article 12 nor Article 8 of the Convention required a State to
permit a transsexual to marry a person
of his or her original sex. They also
pointed out that the domestic law approach had been recently reviewed and upheld
by the Court
of Appeal in Bellinger v.
Bellinger, the matter now pending
before the House of Lords. In their
view,
if any change in this important or
sensitive area were to be
made, it should come from the
United
Kingdom's
own
courts acting within the margin of appreciation which this Court has always
afforded. They also referred to the fact that any change brought the possibility
of unwanted consequences, submitting that legal
recognition would potentially
invalidate existing marriages and leave transsexuals and their partners in
same-sex marriages. They
emphasised the importance of proper and careful review
of any changes in this area and the need for transitional provisions.
B. The Court's assessment
97. The Court recalls that in the cases of Rees, Cossey and
Sheffield and Horsham the inability of the transsexuals in
those cases to marry
a person of the sex opposite to their re-assigned gender was not found in breach
of Article 12 of the Convention.
These findings were based variously
on the
reasoning that the right to marry referred to traditional marriage between
persons of
opposite biological sex (the Rees judgment, p. 19, § 49), the
view
that continued adoption of biological criteria in domestic
law for
determining a person's sex for the purpose of marriage was encompassed within
the power of Contracting States to regulate
by national law the exercise of the
right to marry and the conclusion that national laws in that respect could not
be regarded
as restricting or reducing the right of a transsexual to marry in
such a way or to such an extent that the
very
essence of the right
was impaired
(the Cossey judgment, p. 18, §§ 44-46, the Sheffield and Horsham
judgment, p. 2030, §§ 66-67).
Reference was also made to the wording
of Article 12 as protecting marriage as the basis of the family (Rees, loc.
cit.).
98. Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.
99. The exercise of the right to marry gives rise to social,
personal and legal consequences. It is subject to the national
laws of the
Contracting States but 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 is impaired (see the Rees judgment, p. 19, § 50; the F.
v.
Switzerland judgment
of 18 December 1987, Series A no. 128, § 32).
100. It is true that the first sentence refers in express terms to
the right of a man and woman to marry. The Court is
not persuaded that at the
date of this case it can still be assumed that these terms must refer to a
determination of gender by
purely biological criteria (as held by Ormrod J. in
the case of Corbett v.
Corbett, paragraph 21 above). There have been
major social changes in the institution of marriage since the adoption of the
Convention
as well as dramatic changes brought about by developments in medicine
and science in the field of transsexuality. The Court has
found above, under
Article 8 of the Convention, that a test of congruent biological factors can no
longer be decisive in denying
legal recognition to the change of gender of a
post-operative transsexual. There are other important factors – the
acceptance
of the condition of gender identity disorder by the medical
professions and health authorities within Contracting States, the provision
of
treatment including surgery to assimilate the individual as closely as possible
to the gender in which they perceive that they
properly belong and the
assumption by the transsexual of the social role of the assigned gender. The
Court would also note that
Article 9 of the recently adopted Charter of
Fundamental Rights of the European Union departs, no doubt deliberately, from
the
wording of Article 12 of the Convention in removing the reference to men and
women (see paragraph 58 above).
101. The right under Article 8 to respect for private life does
not however subsume all the issues under Article 12, where
conditions imposed by
national laws are accorded a specific mention. The Court has therefore
considered whether the allocation
of sex in national law to that registered at
birth is a limitation impairing the very
essence of the right to marry in this
case.
In that regard, it finds that it is artificial to assert that
post-operative transsexuals have not been deprived of the right to
marry as,
according to law, they remain able to marry a person of their former opposite
sex. The applicant in this case lives as
a woman, is in a relationship with a
man and would only wish to marry a man. She has no possibility of doing so. In
the Court's
view,
she may therefore claim that the
very
essence of her right to
marry has been infringed.
102. The Court has not identified any other reason which would
prevent it from reaching this conclusion. The Government
have argued that in
this sensitive area eligibility for marriage under national law should be left
to the domestic courts within
the State's margin of appreciation, adverting to
the potential impact on already existing marriages in which a transsexual is a
partner. It appears however from the opinions of the majority of the Court of
Appeal judgment in Bellinger v.
Bellinger that the domestic courts tend
to the
view
that the matter is best handled by the legislature, while the
Government have no present
intention to introduce legislation (see paragraphs
52-53).
103. It may be noted from the materials submitted by Liberty that
though there is widespread acceptance of the marriage
of transsexuals, fewer
countries permit the marriage of transsexuals in their assigned gender than
recognise the change of gender
itself. The Court is not persuaded however that
this supports an argument for leaving the matter entirely to the Contracting
States
as being within their margin of appreciation. This would be tantamount to
finding that the range of options open to a Contracting
State included an
effective bar on any exercise of the right to marry. The margin of appreciation
cannot extend so far. While it
is for the Contracting State to determine
inter alia the conditions under which a person claiming legal recognition
as a transsexual establishes that gender re-assignment has been properly
effected or under which past marriages cease to be valid
and the formalities
applicable to future marriages (including, for example,
the information to be
furnished to intended spouses), the Court finds no justification for barring the
transsexual from enjoying
the right to marry under any circumstances.
104. The Court concludes that there has been a breach of Article 12 of the Convention in the present case.
III. ALLEGED VIOLATION
OF ARTICLE 14 OF THE CONVENTION
105. The applicant also claimed a violation
of Article 14 of the
Convention, which provides as follows:
“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.”
106. The applicant complained that the lack of legal recognition of her changed gender was the cause of numerous discriminatory experiences and prejudices. She referred in particular to the fact that she could not claim her State pension until she was 65 and to the fact that she could not claim a “freedom pass” to give her free travel in London, a privilege which women were allowed to enjoy from the age 60 and men from the age of 65.
107. The Government submitted that no issues arose which were different from those addressed under Article 8 of the Convention and that the complaints failed to disclose any discrimination contrary to the above provision.
108. The Court considers that the lack of legal recognition of the
change of gender of a post-operative transsexual lies
at the heart of the
applicant's complaints under Article 14 of the Convention. These issues have
been examined under Article 8
and resulted in the finding of a violation
of that
provision. In the circumstances, the Court considers that no separate issue
arises under Article 14 of the Convention and makes no separate finding.
IV. ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
109. The applicant claimed a violation
of Article 13 of the
Convention, which provides as follows:
“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.”
110. The applicant complained that she had no effective remedy available to her in respect of the matters complained of above.
111. The Government submitted that no arguable breach of any Convention right arose to engage the right to a remedy under Article 13. In any event, since 2 October 2000 when the Human Rights Act 1998 came into force, the Convention rights could be relied on in national courts and the applicant would now have a remedy in a national court for any breach of a Convention right.
112. The Court reiterates that Article 13 of the Convention
guarantees the availability at the national level of a remedy
to enforce the
substance of the Convention rights and freedoms in whatever form they might
happen to be secured in the domestic
legal order. Its effect is to require the
provision of a domestic remedy to deal with the substance of an “arguable
complaint”
under the Convention and to grant appropriate relief (see,
amongst other authorities, the Aksoy v.
Turkey judgment of 25 September
1996,
Reports 1996-
VI,
p. 2286, § 95).
113. Having found above that there have been violations
of
Articles 8 and 12 of the Convention, the applicant's complaints
in this regard
are without doubt arguable for the purposes of Article 13 of the Convention. The
case-law of the Convention institutions
indicates, however, that Article 13
cannot be interpreted as requiring a remedy against the state of domestic law,
as otherwise
the Court would be imposing on Contracting States a requirement to
incorporate the Convention (see the James and Others
v.
the
United
Kingdom
judgment of 21 February 1986, Series A no. 98, p. 48, § 86). Insofar
therefore as no remedy existed in domestic
law prior to 2 October 2000 when
the Human Rights Act 1998 took effect, the applicant's complaints fall foul of
this principle.
Following that date, it would have been possible for the
applicant to raise her complaints before the domestic courts, which would
have
had a range of possible redress available to them.
114. The Court finds in the circumstances no breach of Article 13 of the Convention in the present case.
V. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
115. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention
or the Protocols thereto, and if the internal law of
the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction
to the injured party.”
A. Damage
116. The applicant claimed pecuniary damage of a total of 38,200
pounds sterling (GBP). This represented a sum of GBP
31,200 in respect of the
pension which she had been unable to claim at age 60 and GBP 7,000 as the
estimated value
of the pensioner's
bus pass which she had not been eligible to
obtain. The applicant also claimed for non-pecuniary damage the sum of GBP
40,000 in
respect of distress, anxiety and humiliation.
117. The Government submitted that were the Court to find any breach of the Convention this finding would of itself be sufficient just satisfaction for the purposes of Article 41 of the Convention.
118. The Court recalls that there must be a clear causal
connection between the pecuniary damage claimed by the applicant
and the
violation
of the Convention and that this may, in the appropriate case, include
compensation in respect of loss of earnings
or other sources of income (see,
amongst other authorities, the Barberà, Messegué and Jabardo
v.
Spain
judgment of 13
June 1994 (Article 50), Series A no. 285-C, pp. 57-58,
§§ 16-20; the Cakıcı
v.
Turkey judgment of 8
July 1999, Reports 1999-IV, § 127).
119. The Court observes that the applicant was unable to retire at
age 60 as other female employees were entitled and
to obtain a state pension or
to claim a bus pass for free travel. The degree of financial detriment suffered
as a result, if any,
is not clear-cut however as the applicant, though perhaps
not by choice, continued to work and to enjoy a salary as a result. While
it has
adverted above to the difficulties and stresses of the applicant's position as a
post-operative transsexual, it would note
that over the period until 1998
similar issues were found to fall within the United
Kingdom's
margin of
appreciation and that no
breach arose.
120. The Court has found that the situation, as it has evolved, no
longer falls within the United
Kingdom's
margin of
appreciation. It will be for
the
United
Kingdom
Government in due course to implement such measures as it
considers appropriate
to fulfil its obligations to secure the applicant's, and
other transsexuals', right to respect for private life and right to marry
in
compliance with this judgment. While there is no doubt that the applicant has
suffered distress and anxiety in the past, it
is the lack of legal recognition
of the gender re-assignment of post-operative transsexuals which lies at the
heart of the complaints
in this application, the latest in a succession of cases
by other applicants raising the same issues. The Court does not find it
appropriate therefore to make an award to this particular applicant. The finding
of
violation,
with the consequences which will
ensue for the future, may in
these circumstances be regarded as constituting just satisfaction.
B. Costs and expenses
121. The applicant claims for legal costs and expenses GBP 17,000 for solicitors' fees and GBP 24,550 for the fees of senior and junior counsel. Costs of travel to the Court hearing, together with accommodation and other related expenses were claimed in the sum of GBP 2,822. This made a total of GBP 44,372.
122. The Government submitted that the sum appeared excessive in
comparison to other cases from the United
Kingdom
and
in particular as regarded
the amount of GBP 39,000 claimed in respect of the relatively recent period
during which the applicant's
current solicitors have been instructed which would
only relate to the consolidated observations and the hearing before the
Court.
123. The Court finds that the sums claimed by the applicant for
legal costs and expenses, for which no detail has been
provided by way of hours
of work and fee rates, are high having regard to the level of complexity of, and
procedures adopted in,
this case. Having regard to the sums granted in other
United
Kingdom
cases and taking into account the sums of legal aid paid by
the
Council of Europe, the Court awards for this head 39,000 euros (EUR), together
with any
value-added
tax that may be payable.
The award is made in euros, to be
converted into pounds sterling at the date of settlement, as the Court finds it
appropriate that
henceforth all just satisfaction awards made under Article 41
of the Convention should in principle be based on the euro as the
reference
currency.
C. Default interest
124. As the award is expressed in euros to be converted into the national currency at the date of settlement, the Court considers that the default interest rate should also reflect the choice of the euro as the reference currency. It considers it appropriate to take as the general rule that the rate of the default interest to be paid on outstanding amounts expressed in euro should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation
of
Article 8 of the Convention;
2. Holds unanimously that there has been a violation
of
Article 12 of the Convention;
3. Holds unanimously that no separate issue arises under Article 14 the Convention;
4. Holds unanimously that there has been no violation
of
Article 13 of the Convention;
5. Holds unanimously that the finding of violation
constitutes in itself sufficient just satisfaction for the non-pecuniary damage
sustained
by the applicant;
6. Holds unanimously that the respondent State is to pay
the applicant, within three months, EUR 39,000 (thirty nine thousand euros) in
respect of costs and expenses, together with any value-added
tax that may be
chargeable, to be converted into pounds sterling at
the date of settlement;
7. Holds by fifteen votes
to two that simple interest at a
rate equal to the marginal lending rate of the European Central Bank plus three
percentage points shall be payable from the expiry of the above-mentioned three
months until settlement;
8. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 11 July 2002.
Luzius WILDHABER
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Fischbach;
(b) partly dissenting opinion of Mr Türmen;
(c) partly dissenting opinion of Mrs Greve.
L.W.
P.J.M
CONCURRING OPINION OF JUDGE FISCHBACH
Even though I voted
with the majority of the Court as concerns point 7 of the
operative part of the judgment, I would have preferred
a fixed rate of default
interest to have been set.
PARTLY DISSENTING OPINION OF JUDGE TÜRMEN
As concerns default interest, I would have preferred, at point 7 of the operative part of the judgment, for a fixed rate to have been set.
PARTLY DISSENTING OPINION OF JUDGE GREVE
In the present case I do not share the views
of the majority of my colleagues
concerning the default interest to be paid.
There is agreement among the judges that the euro is a suitable reference currency for all awards under Article 41. The Court wants such awards paid promptly, and the default interest rate is intended to be an incentive for prompt payment without it having a punitive character. So far I fully agree.
Under the Court's new policy awards are made in the euro to be converted into
national currencies at the day of settlement. This
means that in the present
case the applicant will suffer a loss in the value
of her award if her national
currency, the pound sterling,
continues to gain strength
vis-à-vis
the
euro. Conversion into national currency first at the day of settlement in
contradistinction
to a conversion at the day of the judgement will favour
applicants from the euro countries and applicants that have national currencies
on a par with the euro, or weaker. All other applicants will suffer a loss under
the changed policy. This, in my opinion, conflicts
with the provisions of
Article 14 in combination with Article 41. Moreover, it conflicts with the
Court's desire that the awards
shall to be as fair as possible, that is to
maintain the
value
of the award as accurately as possible.
The latter objective is also the rationale for changing the Court's previous practice of using the default interest rate in each member State as basis for the Court's decision in individual cases.
The majority is attempting to secure that awards become fair by using varying
interest rates as they evolve throughout the period
of default. The marginal
lending rate used by the European Central Bank (ECB) when lending money
overnight to commercial banks
plus three percentage points will be used. This
will in the present case, as in many other cases, give the applicant a lower
default
interest rate than the rate previously used by the Court, the national
default interest rate.
The marginal lending rate is interest paid by banks to the ECB, when they need quick emergency loans. That is, it is a rate which forms the ceiling for the commercial money market; and of little, if any, practical interest to most of the applicants in the Court. The default interest rates provided for in each of the States parties to the Convention for their part do reflect the situation in the national money markets regarding the rates to be paid by applicants who may have to opt for borrowing money while awaiting payment of an award of just satisfaction. For this reason national default interest rates compensate the individuals in a manner not secured by the new default interest rate opted for by the Court's majority.
Furthermore, I believe that an applicant receiving an award ought to be able
to know herself the applicable default interest rate.
The marginal lending rate
used by the ECB when lending money overnight to commercial banks is not easily
available to all applicants
in Europe. The rate has been stable for quite some
time but if need be it could be set on a weekly if not even daily basis.
Although
it will be for the State to prove that it has actually paid the
applicant in compliance with the judgment, and for the Committee
of Ministers in
the Council of Europe to check that this is correct, I find this to be an added
bureaucratic procedure which makes
it more difficult for applicants to keep
track themselves. At all events the basis on which the Court's majority sets the
new default
interest rate is removed from the actual rate which an applicant,
who needs to borrow money on an interim basis while awaiting payment
of the
award in a judgement, will have to pay. This is not compensated by the new
varying interest rate, and this rather abstract
search for fairness does not, in
my opinion, merit a potentially bureaucratic new procedure.