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This is a follow-up to a story posted on August 8th. It is from the same source, the news service of the United Kingdom's Press for Change (UKPFC).

Sunday 9th August, 1998

Court Judgement Critiscises UK Government's Lack of Action

by Christine Burns
Vice President, Press for Change

Although the bottom line decision of the recent European Court of Human Rights was a huge disappointment for Trans rights activists in the UK, this week's publication of the full judgement is putting smiles back on many faces at the heart of the campaign.

On July 30th, the European Court ruled, by the narrowest of possible margins (11 to 9), that the United Kingdom had not violated article 8 of the European Convention on Human Rights by failure to properly recognise the status of of Kristina Sheffield and Rachel Horsham.

The court also ruled, by 18 votes to 2, that the two women's rights under article 12 (the right to marry) had also not been violated .. and ruled unanimously that no violation of article 14 had occurred either.

That is, of course, the BAD news .. and as we've tried to discreetly imply over the months, it wasn't altogether unexpected.

The GOOD news is only apparent, however, when you read the actual judgement .. and for that we've had to wait patiently for a whole week, until the text was published on the Court's website.

As we announced earlier this week, the text will be found on PFC's web site at:

http://www.pfc.org.uk/legal/sh-judg.htm

.. and the original is on the rather slower ECHR site at:

http://www.dhcour.coe.fr/eng/SHEFFIELD%20AND%20HORSHAM%20eng.html

.     .     .

The court may have been numerically divided on the finer legal point of whether Kristina and Rachel's cases brought any new facts to the table... but it is as clear as day that no opportunity was spared to present us with as much POLITICAL ammunition as possible.

The main judgement is VERY critical of the British government's failure to do what it was instructed to do as long ago as 1990. Things like this are usually dressed up in doubletalk, but there can be no mistaking the meaning of the court's words on this occasion.

The main judgement also makes it clear that there is no doubt that the examples of privacy violations cited by Kristina in particular are real and significant.

Miss Sheffield's experiences [..] provided a convincing
account of the extreme disadvantages which beset
post-operative transsexuals and of how the current
legal situation operated to the detriment of their privacy
and even exposed them to the risk of penalties for the
offence of perjury.

also, looking back to the commission's findings last year...

The Commission considered that the applicants, even
if they do not suffer daily humiliation and embarrassment,
are nevertheless subject to a real and continuous risk of
intrusive and distressing enquiries and to an obligation
to make embarrassing disclosures. Miss Sheffield's
case showed that this risk was not theoretical.

[..]

In the view of the Commission, appropriate ways could
be found to provide for transsexuals to be given
prospective legal recognition of their gender
re-assignment without destroying the historical
nature of the births register.

The dispute is over whether the disadvantages are frequent and unreasonable-enough to class as a rights violation. The comparison in that respect is with the daily humiliation exemplified by the Frenchwoman "B" (whom they supported in 1992). Remember that in her case the problem lay with a national identity card which countries such as France expect their citizens to produce on demand for just about anything. The other issue is that the court failed to be convinced that the Gooren-Schwaab research was of a sufficiently convincing nature (yet) to be able to conclude that the Government's refusal to alter birth certificates was incorrect ..

The court noted..

...the essence of [Kristina and Rachel's] complaints
concerns the continuing insistence by the authorities
on the determination of gender according to biological
criteria alone and the immutability of the gender
information once it is entered on the register of birth

and ruled..

In the view of the Court, the applicants have not shown
that since the date of adoption of its Cossey judgment
in 1990 there have been any findings in the area of
medical science which settle conclusively the doubts
concerning the causes of the condition of
transsexualism.

The research proferred by the Liberty Amicus brief is also dismissed...

...the Court is not fully satisfied that the legislative
trends outlined by amicus suffice to establish the existence
of any common European approach to the problems
created by the recognition in law of post-operative
gender status. In particular, the survey does not indicate
that there is as yet any common 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,
or the circumstances in which a transsexual may be
compelled by law to reveal his or her pre-operative
gender.

In conclusion...

It cannot be denied that the incidents alluded to
by Miss Sheffield were a source of embarrassment
and distress to her and that Miss Horsham, if she
were to return to the United Kingdom, would equally
run the risk of having on occasions to identify herself
in her pre-operative gender. At the same time, it
must be acknowledged that an individual may with
justification be required on occasions to provide
proof of gender as well as medical history. [..]
However, quite apart from these considerations
the situations in which the applicants may be
required to disclose their pre-operative gender
do not occur with a degree of frequency which
could be said to impinge to a disproportionate
extent on their right to respect for their private
lives.

However, in spite of the apparent negativity of those observations, the judgement (significantly) ENDS on a note which returns to the underying theme of critiscism of the British Government's position ...

(Para 60)

Having reached those conclusions, the Court cannot
but note that despite its statements in the Rees and
Cossey cases on the importance of keeping the need
for appropriate legal measures in this area under
review having regard in particular to scientific and
societal development, it would appear that the
respondent State has not taken any steps to do so.

The fact that a transsexual is able to record his or her
new sexual identity on a driving licence or passport
or to change a first name are not innovative facilities.
They obtained even at the time of the Rees case.

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.

.     .     .

More interesting still are the separately penned statements issued by some of the judges.

First, BRITISH Judge Sir John Freeland agreeing (but only just) with the decision ...

My vote in favour of the finding that there had been
no violation of Article 8 of the Convention in these
cases was cast after much hesitation and even
with some reluctance. The cases disclosed a
wider range of situations in which difficulty and
embarrassment may be caused to post-operative
transsexuals in the United Kingdom than had been
demonstrated to the Court in the Rees and
Cossey cases.

It has not been easy to weigh up the various factors
and I acknowledge that continued inaction on the part
of the respondent State, taken together with further
developments elsewhere, could well tilt the balance
in the other direction. My overall conclusion was,
however, that in the light of scientific and legal
developments so far and in the particular
circumstances of these cases it would not be
right for the Court now to find a violation of Article 8.

(Or, in other words .. "We may have sided with you again, Britain, but don't expect to get off again")

Judges BERNHARDT, THÓR VILHJÁLMSSON, SPIELMANN, PALM, WILDHABER, MAKARCZYK and VOICU, expressing their partial dissent with the judgement, went further ...

We are of the conviction that in the almost twelve
years since the Rees case was decided important
developments have occurred in this area. However,
notwithstanding these changes and the above
cautionary remarks, United Kingdom law has
remained at a standstill. No review of the legal
situation of transsexuals has taken place.
In our opinion the fair balance that is inherent
in the Convention tilts decisively in favour of
protecting the transsexuals' right to privacy.

Referring to the Liberty Amicus brief ..

These figures in themselves -- without needing
to go into the varying details of such legislation
-- demonstrate convincingly that the problems
of such transsexuals are being dealt with in a
respectful and dignified manner by a large
number of Convention countries. We do not
believe that the Court need wait until every
Contracting Party has amended its law in
this direction before deciding that Article 8
gives rise to a positive obligation to
introduce reform.

Continuing on the same theme, and referring to the figures showing that Britain is one of just FOUR states to have done nothing on this issue, to dissenting judges say...

..how can we expect uniformity in such a complex
area where legal change will necessarily take
place against the background of the States'
traditions and culture? However the essential
point is that in these countries, unlike in the
United Kingdom, change has taken place --
whatever its precise form is -- in an attempt
to alleviate the distress and suffering of the
post-operative transsexual and that there
exists in Europe a general trend which seeks
in differing ways to confer recognition on the
altered sexual identity.

And on the issue of the medical research ...

Our quarrel is not with the statement that
Professor Gooren's research into the role
of the brain in conditioning transsexualism
does not enjoy universal support in the
scientific world

[..]

It is not a sufficient answer to this important
development that the scientific community
cannot agree on the explanation of the
causes of transsexualism or that surgery
cannot -- and perhaps will never be able to --
lead to a change in the biological sex.
Respect for privacy rights should not, as
the legislative and societal trends referred
to above demonstrate, depend on exact
science. What is undisputed is that the
harsh and painful path of gender
re-assignment surgery may lead to an
improvement in the medical condition
of the transsexual.

We are convinced therefore in light of the
evolution of attitudes in Europe towards
the legal recognition of the post-operative
transsexual that the States' margin of
appreciation in this area can no longer
serve as a defence in respect of policies
which lead inevitably to embarrassing
and hurtful intrusions into the private
lives of such persons. If the State can
make exceptions in the case of driving
licences, passports and adoptive
children solutions can be found which
respect the dignity and sense of privacy
of post-operative transsexuals.

And finally, in words which no UK activist should forget to repeat as often and as loudly as possible ...

It is no longer possible, from the standpoint
of Article 8 of the Convention and in a Europe
where considerable evolution in the direction
of legal recognition is constantly taking place,
to justify a system such as that pertaining in
the respondent State, which treats gender
dysphoria as a medical condition, subsidises
gender re-assignment surgery but then
withholds recognition of the consequences
of that surgery thereby exposing post-operative
transsexuals to the likelihood of recurring
distress and humiliation.

JUDGE CASADEVALL, in a separate dissenting submission, echoes many of these sentiments and points out that ..

[obtaining] findings in the field of medical science
which settle conclusively the doubts concerning
the causes of transsexualism [would be] a very
difficult thing to require them to do

.. and on the subject of Birth Certificate changes ...

..it would not be too difficult for domestic law to
be changed so as to give the applicants, by
whatever means were deemed appropriate,
legal recognition of their new post-operative
identity, without necessarily destroying or
impairing the historical nature of the British
system for the registration of births (if not by
correction then at least by means of an
addition, a margin note or simply a comment
in order to reflect the present situation).

The judge's real point relates to the British Government's inactivity over the last 11-12 years, having been instructed in 1987 to keep the situation under review. Referring back to paragraph 60 (see above), Casadevall points out that the court ..

noted: "… it would appear that the respondent
State has not taken any steps to do so";

and

observed: "… there is an increased social
acceptance of transsexualism and an
increased recognition of the problems
which post-operative transsexuals encounter";

and

reiterated that: "… this area needs to be kept
under review by Contracting States";

With obvious irony, the judge concludes by saying ..

Unfortunately, the majority of the Court have
not drawn the logical consequences from
those findings and observations.

(Or, in other words, if a state so blatantly demonstrates that it has failed to follow the court's direction, whilst so many other European states have done, what are you to conclude about their attitude towards the spirit of article 8 in this case !)

The last and most intriguing dissenting view of all is from Judge VAN DIJK, although you have to read carefully down to his paragraph four to find it ...

... almost twelve years have passed since the
Court delivered its Rees judgment and almost
eight years since it delivered its Cossey judgment.
However, the British Government have not taken
any substantial action to improve the legal situation
of post-operative transsexuals in the United Kingdom.

Only at a very late stage in the present procedure
have the British (Labour) Government indicated
their willingness to seek a solution within the
framework of a friendly settlement, thus making
it clear that in their opinion also the problems
on which previous Governments had relied
during all those years were not insolvable ones.

READ THAT AGAIN.

The Government were, it seems, ready to negotiate.

The judge continues though ..

what is at stake here is the fundamental right
to self-determination: if a person feels that he
belongs to a sex other than the one originally
registered and has undergone treatment to
obtain the features of that other sex to the
extent medically possible, he is entitled to
legal recognition of the sex that in his
conviction best responds to his identity.

The right to self-determination has not been
separately and expressly included in the
Convention, but is at the basis of several
of the rights laid down therein, especially
the right to liberty under Article 5 and the
right to respect for private life under Article 8.
Moreover, it is a vital element of the "inherent
dignity" which, according to the Preamble to
the Universal Declaration of Human Rights,
constitutes the foundation of freedom,
justice and peace in the world.

(Or, to put it more succinctly, here is ONE judge who has grasped that an individual does not need to have been medically diagnosed and sanctioned in order for their identity to be recognised as a fundamental)

Critiscising the readiness of the court's majority to accept the Government's submission, Judge Van Dijk continues ..

In particular, they should have taken into account,
on the one hand, that the detriment to [Kristina
Sheffield] is not limited to the specific incidents
advanced by her (to be considered quite serious
in themselves), but consists of a continuous risk
of being forced to reveal her pre-operative gender
which she deliberately and at great cost has
abandoned and, on the other hand, that the
Government have not made out any plausible
argument that the interests of third parties
referred to by the majority cannot be met in
another less distressing way for the applicant
and without destroying the historical nature
of the births register.

This is not just nice rhetoric as, in fact, the judge is referring back to the Court's case-law in the case of Dudgeon v. the United Kingdom judgment (22 October 1981) where it held that "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant's right to respect for his private life (...) within the meaning of Article 8 § 1

In other words, the continued presence of the circumstances facing British trans people constitutes an every day, rather than exceptional or occasional burden.

Judge Van Dijk continues by asking why it is that so many other states have been able to alter their system of birth certification without encountering the sort of difficulties which the British Government has always alluded to but failed to qualify ..

It is my firm belief that British society, or the
English legal system, cannot have such specific
features in this respect that these require and
justify an interference of such a scope in the
private lives of post-operative transsexuals
while other European democratic societies
apparently feel no need for such an
interference.

Returning to the Government's previously mentioned last-minute willingness to to negotiate, Judge Van Dijk continues ..

... from the fact that at a certain stage the
present British Government offered to find
a solution within the framework of a friendly
settlement, it may be concluded that the
Government themselves did not think that
the problems advanced by them were
insolvable within the English legal
system.

.     .     .

I could go on quoting .. the more you read of the dissenting views, in particular, the more apparent it is that the general trend, and the pointers being laid down to the new court, are all very plain.

Indeed, the more you read overall, the more apparent it becomes that the final decision was, indeed, a very very narrow one indeed.

For UK activists, of course, the challenge is to now seize the POLITICAL capital provided by the judgement .. which (even where it fails to find favourably) represents today's most comprehensive and accurate summary of the situation, and how it is construed internationally.

The European Court of Human Rights has again let the governent off the hook .. but, in doing so, it has signalled in the bluntest possible terms that it is unlikely to do so again.

The Government has been strongly critiscised for failing to take any action to review the law since they were instructed to do so by the court in 1987 (and again, in case they hadn't heard, in 1990). Furthermore, the balance of the debate is shifting to recognise that the Government have never spelled out what's so impossible about creating a system such as that applied for adoptees .. during a time when its' contemporaries have found no difficulty in creating procedures.

The Sheffield and Horsham cases have also exposed a wider and more serious catalogue of problems than many observers had previously appreciated. As the foreword to the Liberty Amicus brief notes, trans people frequently adopt a lifestyle in which they prefer to opt out of key aspects of society .. leading solitary lifestyles, tolerating discrimination and failing to apply their talents in public life because of a continuous awareness that to do otherwise risks an immediate an intolerable violation of their privacy.

A society in which people are unwilling to appear as witnesses because the court will humiliate them is a society that is deeply flawed. A society which accepts a treatment deemed necessary for the well-being of a citizen and then fails to take account of the result of that treatment can expect to be judged as gratuituously cruel by history. Gradually, the court is recognising these realities.

The majority decision of the court has observed that the "concessions" which the UK Government claims to have granted are no such thing at all. The right to take whatever name you choose has been available to British citizens for hundreds of years. The ability to have a passport or driving license altered existed before the Rees case in 1987. In noting the transparency of these claims to "action", the court has therefore signalled a greater degree of awareness and scepticism than it has formerly shown .. picking up on opinions expressed in the dissenting views of previous judgements.

The value of the dissenting views in this case, therefore ... quite apart from the fact that they represent nearly half the court ... is that they have thrown down the gauntlett for the next court to consider them seriously as fact.

.. And that is why the clock is now ticking for the Government.

The challenge, therefore, is to get this across to politicians, quickly and accurately. Use this article if it helps .. print out the full judgement and mark the passages with a highlighter pen before sending it to your MP .. and ask them to ACT NOW.

Losing this case was sad for everyone concerned .. not least for Kristina Sheffield and Rachel Horsham, who put in so much over such a long time only to see their hopes dashed by the smallest of margins.

Had the wavering British Judge, Sir John Freeland, swung the other way an 11 to 9 vote would have been a 10:10 impasse instead. Had the other judges looked more closely at the supposed scientific opposition to the Gooren-Schwaab paper, they would have found that the objections concerned were actually addressed in that paper and that the objectors had no conflicting research results of their own to offer .. a fact which is significant in the light of the reliance placed upon the need for a scientific aetiology.

Yet for all the sadness, it is impossible to read the full judgement without concluding that a corner has been turned. In 1987 the court rejected the case of Mark Rees by 12 votes to 3. In 1990, the margin for Caroline Cossey's case was reduced substantially to 10 votes to 8. This time around, the FULL court came to an 11 to 9 decision. The trend is obvious .. but a Government which regularly renews its' public committment to principles of human rights and equality should not have to wait for another expensive and gruelling case to be brought before taking action.

The dissenting judges noted correctly that nobody is demanding that the historical record contained in the Births Register should be altered. The birth certificate is only significant because of the consequences of its' continued use .. officially or not .. as the only effective instrument for legally defining a citizen's sex and their status as the child of their parents (with all the inheritance implications that implies).

An adequate solution is to permit the official register to be annotated, as it was prior to 1970, and for copies of the record issued subsequent to that to appear as though the forenames and sex of the bearer had always been as they appear. The "historical" record is no more compromised by this than in the case of a child issued with a "new" birth certificate following adoption. Legal recognition follows logically .. provided the government is then prepared to alter social security and other official records accordingly. Again, nobody argues the possible need to store, elsewhere, what the former sex designation was. The issue is about recognising what it is NOW and not using the previous information in an inappropriate manner.

And nine out of twenty judges .. including Britain's own delegate .. have gone out of their way to spell out that this is a reasonable approach, given the position adopted by the majority of our European neighbours and the rest of the world. The other eleven haven't said that it's UNreasonable .. merely that they can't yet convince themselves that trans people are "real" enough to justify commanding the Government to fall into line.

All in all, therefore, just about as bright a prospect as you could hope for as a second-best to actually winning the case.

But now YOU have to get out and ram that message down people's throats until they fully understand it and take some action.

Happy campaigning

Christine Burns
Vice President, Press for Change
http://www.pfc.org.uk

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