Strasbourg, 16/07/2002 (Agence Europe) - Two judgements by the Grand Chamber in Strasbourg last week in the case of Goodwin & I. v. the United Kingdom, witnessed the European Court of Human Rights holding unanimously that there had been a violation of Article 8 (right to respect for private and family life) and a violation of Article 12 (right to marry and to found a family) of the European Convention on Human Rights (ECHR).
The two applicants (gender realigned male to female transsexuals) both complained about the obstacles to their being able to marry either as a man or a woman and of not benefiting from women's' pension rights (retirement at 60 instead of 65) and the possibility of their employer discovering their sexual origin in their national insurance documents, as well as the difficulties encountered when having to present documents for examination (that mention one's sex). The Court has given the two parties the legal rights of persons of the sex they have acquired. In these judgements, the Court lays down that States do not have a limit on their discretion in setting up regulation, other than ensuring that this regulation does not impinge on the substance of the rights guaranteed by the ECHR in the right to a private life and the right to marry. Though there were no conclusive findings as to the cause of transsexualism, the Court considered it more significant that the condition had a wide international recognition for which treatment was provided. It was not convinced that the inability of the transsexual to acquire all the biological characteristics took on decisive importance. There was clear and uncontested evidence of a continuing international trend in favour of not only increased social acceptance of transsexuals but also of legal recognition of the new sexual identity of post-operative transsexuals. The Court emphasised Article 8, ensuring protection to the personal sphere of each individual, including the right to establish details of their identity as individual human beings. The Court considered that society might 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. The Court went on to consider whether the allocation of sex in national law to that registered at birth was a limitation impairing the very essence of the right to marry in this case. In that regard, it found that it was artificial to assert that post-operative transsexuals, had not been deprived of the right to marry as, according to law, they remained able to marry a person of their former opposite sex. The applicant in this case lived as a woman and would only wish to marry a man. As she had no possibility of doing so, she could therefore claim that the very essence of her right to marry had been infringed. Though fewer countries permitted the marriage of transsexuals in their assigned gender than recognised the change of gender itself, the Court did not find that this supported an argument for leaving the matter entirely within the Contracting States' margin of appreciation.