Marianne Holdgaard, Adjunkt, cand.jur., ph.d., Juridisk Institut, Afdelingen for Privatret, Aarhus Universitet
On the basis of an examination of the case law of the European Court of Human Rights this article explains – in a European context – to what extent a minority group such as transsexuals have a right to respect for their family life. The subject provides a human rights perspective on the development of the protection of the family over time. It demonstrates the extent to which the right to respect for family life laid down in Article 8 of the European Convention on Human Rights offers protection to transsexuals having an intimate relationship – with or without children. Reference is made to case law concerning transsexuals’ right to private life and their newly recognised right to marry in accordance with Article 12. In the article it is argued that the Court – in two recent cases concerning transsexuals – has developed a different dynamic interpretation of the Convention in relation to the »present-day condition«, which the Court has used as its guiding principle for many years now.
Transsexualism can be defined in the following way:
»A disturbance of gender identity in which the affected person has overwhelming desire to change anatomic sex stemming from the fixed conviction that he or she is a member of the opposite sex; such persons often seek hormonal and surgical treatment to bring their anatomy into conformity with their belief.«1
Transsexuals will often have lived as the opposite sex, have undergone hormone therapy for years, and have gone through a required procedure and psychological tests before they are given permission to have a sex-change operation. The sex-assignment surgery and treatment is, thus, a process that can take years. During these years – and in some countries even after the operation(s) – the transsexual will experience embarrassing situations and be forced to disclose intimate personal information to third parties – in some countries daily – where the discrepancies between their legal sex and their apparent sex will be disclosed as a consequence of the number of official documents indicating sex, for instance by the first name: extracts of birth certificates, computerised identity cards, European Community passports, etc.
Since the case Marckx v. Belgium, judgment of 13 June 1979, the European Court of Human Rights has in its case law laid down the scope of protection and developed the concept of family life under Article 8 of the European Convention on Human Rights notwithstanding that such life does not spring from a marriage and the foundation of a family as completed in Article 12, cf. paragraphs 30-31 of that judgment.
The Court interprets the Convention in the light of present-day conditions in the member States of the Council of Europe, cf. e.g. the case Marckx v. Belgium paragraph 41. Seeing the Convention as a living instrument, the Court interprets the Convention in the light of present-day conditions basically refering to whether the conditions among the Contracting States have changed to such an extent that it would justify a new interpretation of a right. This new interpretation can involve another – i.e. until now a better protection of the individual – outcome of a case, even though the circumstances of the case are (quite) similar to those of previous case law. The Court looks at the development of common accepted legal and social standards of the Contracting States, cf. e.g. Tyrer v. the United Kingdom, judgment of 25 April 1978, paragraph 31, Frette v. France, judgment of 26 February 2002, paragraphs 34 and 40-41, and I. v. the United Kingdom, judgment of 11 July 2002, paragraph 55, cf. paragraph 65.
The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. In addition, there may, however, be positive obligations inherent in an effective »respect« for family life as required in Article 8. The boundaries between the State’s positive and negative obligations under Article 8 are not clear-cut, however. Case law has not set up precise definitions but the applicable principles are, none the less, quite similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, cf. e.g. Keegan v. Ireland, judgment of 26 May 1994, paragraph 49.
The concept of family under Article 8 is not confined to marriage-based relationships but has been interpreted to extend to de facto family ties as well, for instance couples living together out of wedlock, cf. e.g. Hoffmann v. Germany, judgment of 11 October 2001, paragraph 34. A number of factors may be relevant, including whether the couple is living together, the length of their relationship, and whether they have demonstrated their commitment to each other by having children together or by any other means, cf. e.g.Al-Nashif v. Bulgaria, judgment of 20 June 2002, paragraph 112.
A child born within such a family is ipso jure part of that family unit from the very moment of birth. Thus, between the child and the parents a bond amounting to family life exists, even if at the time of birth the parents are no longer co-habiting or their relationship has ended, cf. e.g. Berrehab v. the Netherlands, judgment of 21 June 1988, paragraph 21. In case a family tie with a child has been established, the State must act in a manner intended to enable that tie to be developed, as well as creating legal safeguards that render possible the child’s integration in its family from the very moment of birth, cf. e.g. Keegan v. Ireland, paragraph 50.
De facto family ties may also exist between for instance the mother, her child, and an adoptive father years before the adoption has formalised those ties, cf. the case of Söderbäck v. Sweden, judgment of 28 October 1998.
In other words, the Court does consider the concept of family life, cf. Article 8, as an autonomous concept, and thus to be interpreted dynamically and in principle independently of the national law of the Contracting States.2 An example of the latter – which also shows to what extent the case law of the Court has affected concepts in national law in depth – is the case Keegan v. Ireland where the Court found a violation owing to the fact that a child had been placed for adoption shortly after its birth without the unmarried and non-co-habiting father’s knowledge or consent. The Court found no reasons relevant to the welfare of the child to justify that the interference with the father’s right to respect for family life was necessary in a democratic society, cf. Article 8, paragraph 2, as it jeopardised the proper development of the father’s ties with the child and set in motion a process which was likely to prove to be irreversible, thereby putting the father at a significant disadvantage in his competition with the prospective adopters for the custody of the child, cf. paragraph 55 of the judgement.
The significance of the Convention for transsexuals having undergone sex re-assignment surgery and treatment has been significant because of the Court’s interpretation of the right to respect for private life. Since 1986 the Court has on several occasions signalled its awareness of the serious problems facing transsexuals and has stressed the importance of keeping the need for appropriate legal measures under review – in the light of present-day conditions of the Contracting States, cf. Christine Goodwin v. the United Kingdom, judgment of 11 July 2002, paragraphs 74-75.
The Court has laid down that transsexuals’ private life is to be protected by Article 8: The Contracting State shall abstain from actions to the detriment of the private life of transsexuals but also that the State must comply with a positive obligation to ensure respect for transsexuals’ right to private life. The right to private life may be violated if the State has failed to recognize for legal purposes the applicant’s change of gender, in particular by failing to alter the first name and register of birth to reflect the new gender status or by failing to issue a new birth certificate, the contents and nature of which differ from the entries made at the time of the applicant’s birth, cf. Christine Goodwin v. the United Kingdom, paragraphs 71-73 with reference to previous case law against the United Kingdom: Rees v. the United Kingdom, judgment of 17 October 1986, Cossey v. the United Kingdom, judgment of 27 September 1990, and Sheffield and Horsham, judgment of 30 July 1998.
In 1992 the Court in the case B. v. France, judgment of 25 March 1992, for the first time found a violation in these types of cases – the State had failed to comply with its positive obligation to change the indication of Miss B’s sex in the civil status register and on official identity documents. The Court laid down that if the transsexual daily finds himself or herself in a situation, which taken as a whole is not compatible with the respect of privacy, the Court may find that the fair balance which has to be struck between the general interest and the interests of the individual has not been attained and may thus establish it to be a violation of the right to respect for private life, cf. B. v. France paragraphs 55 and 63.
In the succeeding case, Sheffield and Horsham, brought before the Court against the United Kingdom no breach was found, and the United Kingdom was let off with a caution. The Court again pointed out the importance of keeping the need for appropriate legal measures under review, as it appeared that the United Kingdom had not taken any new steps to do so. The facilities of recording a new sexual identity on driving licence or passport or to change a first name were obtained before the case Rees v. the United Kingdom from 1986. The Court stated the following in paragraph 60 in the case Sheffield and Horsham:
»Even if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States.«
On 11 July 2002 the Court found violations in two quite similar cases, Christine Goodwin v. the United Kingdom, and I. v. the United Kingdom, for having failed to comply with the positive obligation to give legal recognitions of their gender re-assignment. In these two cases – as in the previous cases against the United Kingdom on this subject – a level of substantial daily interference had not been attained because difficulties and embarrassment were minimised by the authorities, for example by allowing transsexuals to be issued with driving licences and passports in their new name and gender. However, in determining whether or not a positive obligation exists for the State, the fair balance was now found to tilt decisively in favour of the transsexuals since the Court did not find any significant factors of public interest to weigh against the interest of the transsexuals, cf. Christine Goodwin v. the United Kingdom, paragraphs 72, 75, 89 and 93, and I. v. the United Kingdom, paragraphs 52, 59, 69 and 73.
Since the case Tyrer v. the United Kingdom, judgment of 25 April 1978, the Court has held on to the principle that the Convention is a living instrument that must be interpreted in the light of present-day conditions; the Court cannot but be influenced by the developments and commonly accepted standards of the member States of the Council of Europe, cf. Tyrer paragraph 31. However, there has been no increase in States giving full legal recognition of gender re-assignment within Europe since 1998, where the case Sheffield and Horsham v. the United Kingdom, was given, cf. Christine Goodwin v. the United Kingdom paragraph 84, and I. v. the United Kingdom, paragraph 64:3
»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).«
Even though there has been no (significant) change in the present-day conditions in the States of the Contracting Parties – which the Court previously has found decisive – since the last case was given, the Court does find a violation. The Court puts emphasis on a continuing international trend outside Europe towards legal recognition, cf. Christine Goodwin v. the United Kingdom paragraph 84, and I. v. the United Kingdom, paragraph 64.
The Court concludes in Christine Goodwin v. the United Kingdom paragraph 85, and I. v. the United Kingdom, paragraph 65:
»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.«
In these judgments references are made to Australian and New Zealand case law4 where the courts are leaving the biological birth view of sex and tend to take into consideration a multitude of factors. Examples of statutory recognition of gender reassignment were also given: Singapore, Canada, South Africa, Israel, New Zealand, and all of the states of the United States of America except two, cf. Christine Goodwin v. the United Kingdom, paragraphs 84, cf. 55-56, and I. v. the United Kingdom, paragraphs 64, cf. 38-39.
The Court’s approach to the present-day conditions is apparently new. The Court has not previously used this approach – where an international trend outside Europe becomes decisive – in its dynamic interpretation including the present-day conditions.
This change in the way of dynamic interpretation and the change in the Court’s assessment of transsexuals’ problems – even though no daily interference in private life has taken place – could be explained by the fact that the two new cases against the United Kingdom are the first cases brought before the new Court concerning this problem. A number of new judges were elected for the new Court. The old Court gave its last judgment on transsexuals in the Sheffield and Horsham case on 30 July 1998. The new Court replaced the old one as Protocol No. 11 entered into force on 1 November 1998.
Concerning transsexuals and their right to respect for their private life, it can generally be concluded from the two new cases against the United Kingdom, that if a Contracting State authorises and finances or assists in financing the treatment and the surgery alleviating the condition of a transsexual, the State is from now on also obliged to give full legal recognition to the new gender identity, cf. Christine Goodwin v. the United Kingdom, paragraph 78, and I. v. the United Kingdom paragraph 58:
»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.«
However, if a transsexual is operated in another country or if the person is operated with no financial assistance from the State, the result should be the same as in the case B. v. France. Where the Court found a violation. Here Miss B. had underwent surgical operation in Morocco. A transsexual person who chooses to be operated in for instance Thailand because of the medical expertise there, or a transsexual who at the age of 18 cannot wait until the age of 25 – which could be the age limit for getting the operation in the country where he lives – should therefore gain the right to full legal recognition as well.
The judgments create a scenario of the future rights for transsexuals as the considerations by the court in the cases Christine Goodwin v. the United Kingdom and I. v. the United Kingdom were that transsexuals had chosen their sexual identity at great personal cost and that the State had no significant factors of public interest to weigh against the interest of the individuals.
Another question is whether – and if so – to what extent Article 8 of the Convention safeguards transsexuals’ rights to family life when having an intimate relationship with or without children. In the case X, Y, and Z v. the United Kingdom, judgment of 22 April 1997, the Court has dealt with this subject.
The case concerned X, a female-to-male transsexual, who had undergone gender re-assignment surgery. He had lived with Y, a woman, to all appearances as her male partner, for eighteen years. A child, Z, was born to Y as a result of artificial insemination by donor. The couple had applied jointly for, and were granted, treatment by this method to allow Y to have a child. X was involved throughout that process and had acted as Z’s father in every respect since the birth.
As the complaint of X did not concern whether national law was lacking provisions for legal recognition of a transsexual’s change of identity, but whether a transsexual – according to national law – could not possibly be registered as the father of a child, the Court examined the case in relation to respect for family life rather than to private life, cf. paragraph 42 of the judgment.
The Court stated, owing to the circumstances of the case, that de facto family ties did link the three applicants together, and Article 8 was therefore applicable and afforded protection of their right to respect for family life, cf. paragraphs 36-37. Hitherto, the Court had only been called upon to consider family ties existing between biological parents and their offspring. However, the case X, Y, and Z v. the United Kingdom raised a different issue, since Z was conceived as a result of artificial insemination by donor and thus was not related, in a biological sense, to X, cf. paragraphs 42-43.
In the X, Y, and Z case the Court is also dealing with another interest than that of the transsexual, X, demanding to be registered as the father of his female cohabitee’s child, Z, and that is the interest of the child who for instance sooner or later might want to know who her biological father is. Since various issues in the case touch on areas where there was only little common ground amongst the member states of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the State is afforded a wide margin of appreciation, cf. paragraphs 44, 47, and 51.5 In this situation the State did not arbitrarily interfere in the rights of the individual of the family but as mentioned above there may in addition be positive obligations inherent in the requirement of an effective respect for family life: to register X as the father of the child Z, cf. paragraphs 41-42 and 52.
As to the question of whether in the above case a fair balance was struck between the interests of the community as a whole and the interests of the individual, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law – placing the best interests of the child at the forefront. Thus, the Court finds it justifiable that the State is cautious in granting transsexuals the right to be registered as the father, since it might have undesirable or unforeseen ramifications for children in Z’s position. Furthermore, an amendment of the law might have implications in other areas of family law as the law might become inconsistent if a female-to-male transsexual was granted the possibility of becoming a father in the eye of the law while in other legal respects the person was still regarded as a female and capable of contracting marriage to a man, cf. paragraph 47.
Regarding the interests of the family in the recognition of X as Z’s legal father, the Court states that it is impossible to predict the extent to which the absence of a legal connection between X and Z would affect the latter’s development, and at the present time it is uncertain how the interests of children in Z’s position can best be protected, cf. paragraph 51.
The majority of the Court (fourteen votes to six) concludes in paragraph 52:
»In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision.
It follows that there has been no violation of Article 8 of the Convention.«
From case law, and especially X, Y and Z v. the United Kingdom, it can be concluded that transsexuals are generally considered to fall within the concept of family life if they de facto are living in an intimate relationship (with or without children) with a person of the »opposite« sex – at least after a gender re-assignment. When deciding whether a relationship can be said to amount to a de facto family life, a number of factors are important, including whether the couple lives together, the length of their relationship, and whether they have or raise children together.
One could argue that the reasoning of the Court in the case X, Y and Z v. the United Kingdom is not consistent in relation to the claimed uncertainty of how the interests of children in Z’s position could best be protected. The legislation in the United Kingdom had laid down that the partner of a woman who gives birth to a child as a result of artificial insemination by donor could normally be registered as the father. However, in this case the registration of the father, X, could just not be made because the father was transsexual. The reason why X could not be registered as the father was that full legal recognition of the new identity of a person having had a sex-change operation was not possible in the United Kingdom at that time – contrary to nearly half of the members of the Council of Europe which at that time were taking steps towards adapting and harmonising their legislation on this point.6 Legally X was still considered to be a woman and X could not be named on the child’s birth certificate as its father.
However, the interest of the child must be the same as to for example getting access to the name of the donor irrespective of the adoptive father being transsexual or not. And it is difficult to claim that there is a significant public interest to weigh against the interest of a family – which includes a couple consisting of a post-operative transsexual, a person of the »opposite« sex and a child – in keeping the information concerning one of the parents’ previous sex a private matter. In other words, the Court’s argument concerning the interests of the community as a whole: the undesirable, unforeseen or uncertain consequences for the child conceived by artificial insemination, should only be of little importance in a case against the United Kingdom, as a stand for any child conceived by insemination by donor had already been taken here.
When examining the fair balance, I believe that the Court have put emphasis on the fact that the transsexual in his family had certain rights – even though he did not have quite the same rights as others. X and Y were for instance given permission to treatment with a view to artificial insemination by an anonymous donor, X was entitled to act as the child's father in the social sense and was free to describe himself to the child and others as the child’s father, X lived with the child, provided emotional and financial support to the child and to Y, the child could be given his surname, and X could, together with Y, apply for a joint residence order in respect of the child, which would automatically confer on them full parental responsibility under English law, cf. the Courts reasoning in paragraph 50.
Therefore, given the fact of the present case, the legal consequences for the family would be unlikely to cause undue hardship, and the State had in fact allowed the family ties to develop and had created legal safeguards, cf. paragraph 48 and the above-mentioned case Keegan v. Ireland.
To sum up, States have a positive obligation of full legal recognition of gender re-assignment, and transsexuals can be considered to be part of a family, but another question is whether the Court today in a case similar to X, Y and Z v. the United Kingdom would reach the opposite result, i.e. a violation.
The outcome is not certain as there is probably still only little common ground among the Contracting Parties regarding granting of parental rights to transsexuals, and the manner in which the social relationship between a child conceived by artificial insemination by donor and the person who performs the role of father should be reflected in law, cf. the case X, Y and Z v. the United Kingdom, paragraph 44. However, the Court states in 2002 that less importance is attached 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 of increased acceptance and legal recognition of post-operative transsexuals.
With reference to an English and an Australian judgment, the Court does not find it apparent 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, cf. Christine Goodwin v. the United Kingdom paragraph 82, and I. v. the United Kingdom paragraph 62. In these two recent cases the Court puts emphasis on the conflict between social reality and law, which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation, and anxiety, cf. Christine Goodwin v. the United Kingdom paragraph 77 and I. v. the United Kingdom paragraph 57.
The above considerations: 1) the fact that the chromosomal element must not be decisive, 2) the conflict between social reality and law, 3) a continuing international trend in favour of increased acceptance and recognition of transsexuals, and 4) the coherence of administrative and legal practices, should in my opinion have the consequence that the Court today will find that a transsexual should also have the right to be registered as the parent of a child conceived by artificial insemination. The two cases described below, Frette v. France, judgment of 26 February, and Salgueiro De Silva Mouta v. Portugal, judgment of 21 December, also point in that direction.
Due to the fact that non-transsexuals, i.e. »real« men, could be registered as fathers of children conceived by artificial insemination by donor, X and his family, in the case X, Y and Z v. the United Kingdom, also complained of discrimination and alleged a violation of Article 14 of the Convention. However, the majority of the Court concluded that this point did not raise a separate issue, as it was tantamount to a restatement of the complaint under Article 8, cf. paragraphs 53-56.
Nevertheless, transsexuals have a right not to be discriminated and are protected by Article 14.7 Article 14 has no independent existence but complements the other substantive provisions and is applicable if the facts of the case fall within the ambit of Article 8, cf. e.g. Frette v. France paragraphs 27 and 31.
But not every difference in treatment will amount to a violation as can be seen in for example the cases X, Y and Z v. the United Kingdom, and Frette v. France paragraph 34:
»According to the Court’s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it »has no objective and reasonable justification«, that is if it does not pursue a »legitimate aim« or if there is not a »reasonable relationship of proportionality between the means employed and the aim sought to be realised« (see ...). In that connection, the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions ...«
It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment in relation to a situation, which falls within the scope of Article 8. This could for instance be the right to adopt – even though the Convention does not guarantee the right to adopt as such. cf. e.g. Frette v. France paragraph 32.
When the Court has reached the conclusion in regard to Article 8 that a fair balance has been struck between the need to safeguard the interests of the transsexual and his or her family and the interests of the community as a whole, this have been seen as justifying the difference in treatment which is equally encompassed in the notion of »reasonable and objective justification« for the purposes of Article 14, cf. the Sheffield and Horsham v. the United Kingdom, judgment of 30 July 1998, paragraphs 75-77.
Today the Court might still conclude that this point does not raise a separate issue, but looking at new judgments such as Frette v. France and Salguerio De Silva Mouta v. Portugal and comparing these with the two recent cases, Christine Goodwin v. the United Kingdom and I. v. the United Kingdom, it seems obvious to argue that Article 14 would be violated in cases concerning transsexuals claiming the right to be registered as the father of a child of his family – for instance a child conceived by artificial insemination by donor.8
In the case Salguerio De Silva Mouta v. Portugal, the Court found a violation of Article 8 taken in conjunction with Article 14 – but no violation of Article 8 taken alone – where the national court had awarded parental responsibility to the mother considering the fact that the father was homosexual and living with another man as a decisive factor. The decision pursued a legitimate aim: to protect the health and rights of the child, but the Court did not find that there was a reasonable relationship of proportionality between the means employed and the aim pursued, cf. paragraphs 30 and 35-36.
The Court concluded that there was no violation in the above case, Frette v. France, concerning rejection of a homosexual from adopting as a single person because the difference in treatment was objective and reasonably justified. The States are left a wide margin of appreciation in such cases as it turned out to be impossible to find uniform principles in the legal and social orders of the Contracting States on this issue, cf. paragraphs 41 and 43.
Looking at transsexuals’ right to adopt or to be registered as the parent of a child in their de facto family, it can now hardly be accepted by the Court that States – like in the case X, Y and Z v. the United Kingdom – treat transsexuals having had a gender re-assignment surgery and thereafter a legal recognition of the change of gender – another human right now – differently than non-transsexuals given the argumentation used by the Court in the cases Christine Goodwin v. the United Kingdom and I. v. the United Kingdom and the new cases mentioned above concerning Article 14.
The Court has until 11 July 2002 interpreted the right to marry laid down in Article 12 as referring only to the traditional marriage between persons of opposite biological sexes. Therefore, the fact that the State solely has used biological criteria to determine a person’s sex for the purposes of marriage, denying transsexuals the right to contract a valid marriage under domestic law, could not be said to constitute a violation, cf. e.g. Sheffield and Horsham v. the United Kingdom, paragraphs 66-70.
Also on this point the Court has changed its previous course, but this time not with any direct reference to the trend outside Europe, cf. Christine Goodwin v. the United Kingdom paragraph 100, and I. v. the United Kingdom paragraph 80:
»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 ... 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 notes that the exercise of the right to marry gives rise to social, personal and legal consequences, and then considers whether the allocation of gender in national law to that registered at birth is a limitation impairing the essence of the right to marry, cf. Christine Goodwin v. the United Kingdom paragraphs 99, 101 and 103, and I. v. the United Kingdom paragraphs 79, 81 and 83:
»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.«
Having regard to the above considerations, the Court finds no justification for barring transsexuals from enjoying the right to marry under any circumstances. Reference is also made to Article 9 of the Charter of Fundamental Rights of the European Union, which deliberately departs from the wording of Article 12 of the Convention in removing the reference to men and women, cf. Christine Goodwin v. the United Kingdom paragraphs 100 and 103, and I. v. the United Kingdom paragraphs 80 and 83.
Case law shows that transsexuals can now claim respect for their right to private and family life as well as the right to marry when they have had their gender re-assignment operation. The concepts in the Articles 6, 12, and 14 are interpreted autonomously by the Court, and seen as a whole the rights afford complementary protection for transsexuals.
As far as transsexuals are concerned, case law on the right to family life has by interpretation developed a protection for couples where one – or two – of the parties are transsexual. Such couples cohabiting may be considered to be de facto families if they fall within the criteria generally set up by the Court. Relevant factors could for instance be that the couple has been living together for an extensive period of time, perhaps with children (from an earlier relationship), or the couple has entered into a registered partnership, which is possible for example in Denmark.
When a transsexual forms a part of a family this may have some consequences in relation to the registration of being a parent of a child in that family. The consequence must be that a transsexual should have a right to be registered as a parent of a child for instance when his partner has had a child as a result of artificial insemination by donor. But the rights for transsexuals will go even further than that, I believe. As the State is now obliged to give a legal recognition of the transgender operation, transsexuals will for example also get the possibility of adopting children and if not, Article 14 and/or Article 8 will be violated.
Generally, it can be concluded that the concepts of private and family life are expanding – dynamically and jerkily – for the good of transsexuals. The same goes for the right to marry and in the future probably also for the right not to be discriminated. However, the way in which the Court has interpreted Article 8 in the above mentioned new cases, Christine Goodwin v. the United Kingdom and I. v. the United Kingdom, raises the question of whether the Court has made a conscious policy shift when using the Convention as a living instrument to be interpreted in the light of present-day conditions that go much further than affording protection of transsexuals.
When granting new rights to transsexuals, the Court uses a way of interpretation, which is hardly in conformity with the interpretation previously used by the Court. When interpreting the protected right, the Court sets aside the fact that no changes of present-day conditions of the Contracting States of the Council of Europe has occurred since their last judgment. In the two cases reference is made to »the situation within and outside the Contracting States to assess »in the light of present-day conditions« what is now the appropriate interpretation and application of the Convention.«9 After that the Court refers to a survey showing a continuing international trend towards legal recognition – Singapore, Canada, South Africa, Israel, New Zealand, states of the United States of America are mentioned – and to judgments from Australia and New Zealand.
Up till now the outcome of a given case brought before the Court has often been difficult to foresee, among other things because of the autonomous concepts which are interpreted dynamically. As Dijk and Hoof wrote in 1998:
»This judgment [Marckx] shows that evolutive interpretation is closely linked to a search for common European standards on the basis of domestic law and practice in the Member States of the Council of Europe, of other international or European instruments, and of the case-law of the Court itself. Clearly, the assessment as to whether a clear European »trend« or »common ground« exists or not (yet), may be a very difficult one to make. Whilst the Court had no hesitation in finding that compulsory membership of a professional association constituted an interference, ... several cases concerning the legal position of transsexuals gave rise to different views within the Court as to the existence of an emerging European standard in the field.«10
The consequence of the Court’s use of this new expanded concept of present-day conditions – including the Contracting States as well as some other countries outside Europe – is that it will be even more difficult to foresee the outcome of a case, and the Court has, though, authorized itself to choose freely among the States outside Europe in order to develop the rights set up in the Convention. In doing so, it seems difficult to see the limits of this technique of interpretation.
3. In 1998 four out of thirty seven countries did not permit a change of a transsexual’s birth certificate to reflect the re-assigned sex of the person. The United Kingdom and Ireland were the only states where gender re-assignment was legally and publicly funded but not given full legal recognition, cf. Christine Goodwin v. the United Kingdom, paragraphs 55-56, and I. v. the United Kingdom, paragraphs 38-39.
7. Protocol No. 12 of the Convention, which in Article 1 includes a general prohibition of discrimination, is not yet entered into force as only tree (ten is required according to Article 5) member States have ratified the Protocol of 1 March 2003.
8. Post-operative transsexuals being a parent will seldom be related in a biological sense to the child in the family, but it is of cause possible as the transsexual may have had a child before the operation. In situations like in the case X, Y and Z v. the United Kingdom, where the child was conceived as a result of artificial insemination by donor, the transsexual will never be biological related.