European Court of Human Rights of Transsexuals

The European Court of Human Rights: Case Analysis, Goodwin v the UK

For over the past 30 years or so, the European Court of Human Rights (ECtHR) was ‘reluctant to recognise any positive duty upon the United Kingdom' towards legal recognition of the new sexual identity of transsexuals.[1] The court has been ‘inclined to permit a very wide margin of appreciation' to the responding state in its previous judgments.[2] The reason for that was absence of European consensus on that issue. However, the situation changed in the case of Goodwin v the United Kingdom,[3] where the court departed from its precedent and stated that circumstances in which post-operative transsexuals live is not bearable anymore, since they are ‘in an intermediate zone as not quite one gender or the other'.[4] The ECtHR also found no good reason ‘for barring transsexuals from enjoying the right to marry'.[5] There were several factors which lead the court to change its mind in this case. These factors, along with the Articles of the Convention, relied upon and those which were found to be violated, are to be discussed in this essay.

Miss Christine Goodwin was born in 1937 as a man, but she lived as a woman since 1984. In 1990 she had a gender reassignment surgery. Long before the surgery she had been married and had been a ‘father' of four children. She argued that she was harassed and humiliated in her workplace by her colleagues. However, as she was deemed not to be a woman, her action for sex discrimination at work was unsuccessful. She was also denied a pension at age 60, the age of entitlement for women in the UK, and thus had to continue paying National Insurance until the age of 65. In a number of occasions, she limited herself the advantages, which she might have been given, had she shown her birth certificate.

One of her other claims was that she could not marry her partner, since Matrimonial Causes Act 1973[6] bars her from that. The act is also supported by case law, for it was established in Corbett v Corbett[7] that sex is to be determined by the application of ‘chromos, gonadal and genital tests'. This use of biological criteria was also approved in R v Tan.[8]

The law requires the sex of the child be entered on the birth certificate.[9] The criteria for determining the sex of the child are not set out in the 1953 Act,[10] but the practice shows that Registrar uses biological criteria, defined above. The corrections can only be made if there is an error. When it comes to the employment, every citizen is given only one unique NI number, hence, transsexuals' sex is recorded as the one at birth.

1) The applicant claimed the violation of Articles 8, 12, 13, 14 of the Convention. Article 8 protects the right to respect for private and family life. Article 12 protects the right to marry and found a family. Article 13, in turn, is about provision of ‘effective remedy before a national authority' to those, whose rights have been infringed. Lastly, Article 14 gives people right to non-discrimination on grounds such as ‘sex, race, colour', etc.

2) The court firstly dealt with Article 8 of the Convention. The applicant submitted that pure biological test for determining sex was contrary to Article 8 of the Convention. The applicant demanded the issue of revised post-operative birth certificates. She also claimed that her failure to receive a promotion was directly related with employer's ability to trace back her employment history and to identify her past on the basis of her NI number. That, according to her, was a violation of Article 8, as well. The government, in turn, submitted that an employer was unable to find out about the sex of the applicant from the NI number, for it was impossible to find any reference to her sex in it. Plus to that, the government stated that harassment in the workplace gave rise to a claim under the Sex Discrimination Act 1975, therefore, protection was given to her by virtue of this act. Court held, unanimously, that there had been a violation of Article 8 of the Convention. The reasoning of all the court's ruling, including other Articles involved, is described in paragraph numbered 3).

2) The second issue before the court was to find out whether there was a violation of Article 12.

From the applicant's submission, it could be understood that another disputed area was marriage. She was displeased with the biological criteria, used in Corbett v Corbett[11], and argued that it is no longer sufficient after the case of Bellinger v Bellinger[12]. Miss Goodwin suggested that even if the Corbett[13] was still a ‘good law', it breached Article 12. The government, on the other hand, referred to the Court's previous case law[14] and averred that the permission of transsexual marriage is not required by Article 12 or 8. Besides, government also asserted that since margin of appreciation was wide, it was a matter for the UK to decide on this issue. Lastly, government reminded that any change may have unwanted consequences, e.g. from the social side. Court held, unanimously, that there had been a violation of Article 12.

2) Penultimate Article, which the court looked at, was Article 14. She complained that the fact that she was not legally recognised as a woman was the cause of several discriminatory restrictions on her privileges. Government submitted that no separate issue arose, so the claim should fail. Court agreed, unanimously, with the government that no separate issue arose under Article 14.

2) The last article to be dealt with was Article 13. Miss Goodwin contended that she had no effective remedy available to her with regard to matters she was complaining about. The UK government disagreed with that by saying that HRA 1998[15] was in force since October 2000 and so Convention rights could be easily relied upon. Court found, unanimously, no breach of Article 13.

3) The reason why the court found a violation of Article 8 can be inferred from paragraphs 78 and 85. The ECtHR noted that the UK's position is illogical because gender re-assignment is lawfully provided, while the person's reassignment is not recognised administratively or legally. The court also justifies its decision by denying giving wide margin of appreciation to the state. Although the court agreed that there was no common European approach, it rather attached the importance to the ‘clear and uncontested evidence of a continuing international trend in favour not only of increase social acceptance of transsexuals but of legal recognition of the new sexual identity.'[16] Liberty survey showed that the UK was behind the rest of the Europe, with some exceptions, in its treatment of transsexuals.[17] Moreover, some countries outside the Council of Europe, like Australia, Canada, Israel, New Zealand, South Africa, most of the USA, gave greater protection to transsexuals.[18] In concluding that the Article 8 was violated, the court stated that ‘the fair balance that is inherent in the Convention now tills decisively in favour of the applicant' compared to public interest, which the government relied on.

3) As in Article 8, the court denied to approve wide margin of appreciation when dealing with alleged violaton of Article 12. Another research by Liberty confirmed that 54% of the Contracting states permitted transsexual marriages.[19] While the ECtHR acknowledged that the state could impose conditions or formalities to apply to marriages, the ECtHR found ‘no justification for barring transsexuals from enjoying the right to marry under any circumstances.'[20] The court found that major social, as well as medical, changes meant that the test of ‘congruent biological factors' was no longer persuasive.[21] The ECtHR also found the assertion, that ‘post-operative transsexuals have not been deprived of the right to marry' as they can marry persons of the sex opposite to theirs on their birth, an artificial one.[22]

3) As stated above, the court agreed with the government that no separate issue arose under the Article 14 of the convention and thus denied violation of Article 14. Finally, just as in the case of Article 14, the court concurred with the government and found no violation of Article 13, on the basis that HRA was in force and it provided effective remedy.

3) The author of this essay found reasons, given by the court, convincing. As the court stated, the major social changes should be taken into account. For instance, what counted immoral at the beginning of 20th century, is no longer so.[23] The author, at the same time, completely agrees with the court's assessment of balancing and weighing of conflicting rights. As B Mahendra put it: ‘Can it be seriously suggested that a man might wish to turn into a woman-undergoing traumatic, and potentially dangerous medical and surgical treatment- in order to receive a pension at an earlier age?'[24] Certainly, the answer to this question is no.

Concluding the information written above, Goodwin was the case resulting in victory of transsexuals in a long-running path of ‘injustice' for them.

Bibliography

Books:

Reed L and J Murdoch (eds), A Guide to Human Rights Law in Scotland (2nd edn Tottel Publishing Ltd, Edinburgh 2008).

Journal Articles:

Mahendra B, ‘Shamed in Strasbourg' [2002] 152 NLJ 1306, 1316.

Sawyer J, ‘Providing the catalyst for change' [2002] 152 NLJ 1089.

Stanley P, ‘European briefing-Rights for transsexuals under the European Convention' [2002] 146 S.J. 707.

Cases:

Armhouse Lee Ltd v Chappell Times Aug 7 1996.

Bellinger v Bellinger [2003] UKHL 21, [2003] 2 A.C. 467.

Corbett v Corbett [1971] P. 110, [1970] 3 W.L.R. 195.

Cossey v the United Kingdom (1991) 13 EHRR 622.

Goodwin v the United Kingdom (2002) 35 EHRR 18.

R v Tan [1983] Q.B. 1053.

Rees v the United Kingdom (1987) 9 EHRR 56.

Sheffield and Horsham v the United Kingdom (1999) 27 EHRR 163.

Legislation:

Births and Deaths Registration Act 1953.

Human Rights Act 1998.

Matrimonial Causes Act 1973.

[1] L Reed and J Murdoch (eds), A Guide to Human Rights Law in Scotland (2nd edn Tottel Publishing Ltd, Edinburgh 2008) at para 6.48. See for examples of cases decided: Rees v the United Kingdom (1987) 9 EHRR 56; Cossey v the United Kingdom (1991) 13 EHRR 622; Sheffield and Horsham v the United Kingdom (1999) 27 EHRR 163.

[2] P Stanley ‘European briefing-Rights for transsexuals under the European Convention' [2002] 146 S.J. 707.

[3] (2002) 35 EHRR 18.

[4] Goodwin (n 3) at para 90.

[5] J Sawyer, ‘Providing the catalyst for change' [2002] 152 NLJ 1089.

[6] Matrimonial Causes Act 1973 s 11(b); s 12 (a).

[7] [1971] P. 110, [1970] 3 W.L.R. 195.

[8] [1983] Q.B. 1053.

[9] Births and Deaths Registration Act 1953 s 1(1).

[10] Births and Deaths Registration Act (n 9).

[11] Corbett (n 7).

[12] [2003] UKHL 21, [2003] 2 A.C. 467.

[13] Corbett (n 7).

[14] Rees, Cossey, Sheffield and Horsham judgments (n 2).

[15] Human Rights Act 1998.

[16] Goodwin (n 4) at para 85.

[17] J Sawyer (n 5).

[18] J Sawyer (n 5).

[19] Goodwin (n 4) at para 57.

[20] Goodwin (n 4) at para 103.

[21] Goodwin (n 4) at para 100.

[22] Goodwin (n 4) at para 101.

[23] See e.g. Armhouse Lee Ltd v Chappell, Times Aug 7 1996.

[24] B Mahendra, ‘Shamed in Strasbourg' [2002] 152 NLJ 1306, 1316.