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GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW
VOLUME 33 2005 NUMBER^2
LEGAL RECOGNITION OF GENDER CHANGE FOR
TRANSSEXUAL PERSONS IN THE UNITED KINGDOM:
THE HUMAN RIGHTS ACT 1998 AND "COMPATIBILITY"
WITH EUROPEAN HUMAN RIGHTS LAW
Robert E. Rains*
I. INTRODUCTION ......................................... 335
II. BACKGROUND: TRANSSEXUALISM ......................... 338
I1. EARLY U.K. DECISIONS^ ON^ TRANSSEXUALISM^ ...............^339
A. Marital Status: Corbett (1970) ......................... 339 B. Expanding Corbett Beyond MatrimonialLaw: Tan (1983) ... 344
- Professor of Law and Co-Director, Family Law Clinic, The Dickinson School of Law, The Pennsylvania State University. This Article was made possible by a sabbatical granted by the Pennsylvania State University, as well as appointments as a visiting professor at the Buckingham Law School, Buckingham, England, in February 2004 and as an associate research fellow at the Institute of Advanced Legal Studies (IALS) in London in March 2004. The^ author^ wishes^ to thank for their assistance with this project: Dr. Mary Welstead, Dean Charlotte Walsh, Dr. Susan Edwards, and Ms. Sheena McMurtrie, all of Buckingham Law School; Acting Director Jules Winterton and Graham Ritchie of the IALS; Professor Takis Tridimas of Queen Mary College, University of London; Dr. Emran Mian, Bill Manager of the Gender Recognition Bill, the^ U.K. Department for Constitutional Affairs; Francis Coleman, Parliamentary Counsel; the author's former colleague Thom Grexa Phillips and his current colleagues Professors Richard F. Storrow and Susan Beth Farmer.
334 GA. J. INT'L & CoMP. L. [Vol. 33:
IV. CHALLENGING THE UNITED KINGDOM'S TREATMENT OF TRANSSEXUALS IN THE EUROPEAN COURT OF HUMAN RIGHTS ... 346 A. Legal Recognition of^ Sex^ Change:^ Rees^ (1987)^ ..........^^346 B. Rees Revisited: Cossey (1990) ......................... 351 C. Attempting to Side-Step Rees and Cossey: X, Y and Z^ (1997)^ ..................................^356 D. A Fourth Unsuccessful Challenge: Sheffield and Horsham (1998) ......................... 360
V. ADOPTION OF THE HUMAN RIGHTS ACT 1998 ................ 363
VI. REPORT OF THE INTERDEPARTMENTAL WORKING GROUP ON TRANSSEXUAL PEOPLE (2000) ........... ................ 366
VII. A MODERN CHALLENGE TO CORBETr IN THE COURT OF APPEAL: BELLINGER (2001) .............................. 369
V11. THE EUROPEAN COURT OF HUMAN RIGHTS' ABOUT-FACE: GOODWIN AND I (2002) ................................. 378
IX. BELLINGER IN THE HOUSE OF LORDS (2003) .. .............. 384 A. The Holdings ...................................... 384 B. Implications of "Incompatibility". ................... 386
X. A THIRD MANDATE: THE EUROPEAN COURT OF JUSTICE, K.B. (2004) ................................... 390
XI. THE GENDER RECOGNITION ACT 2004 ..................... 392
XII. THE UNSETTLED AND UNSATISFACTORY STATE OF AMERICAN LAW ....................................... 402
XIII. CONCLUDING THOUGHTS ................................ 410
GA. J. INT'L & COMP. L.
Rather, the European Convention is structured to place primary responsibil- ity for its enforcement on the signatory states themselves.' Article 1 provides, "The High Contracting Parties shall secure to everyone within their jurisdic- tion the rights and^ freedoms^ defined^ in^ Section^ I^ of^ this^ Convention."
10
Further, Article (^13) requires each member state to provide "an effective remedy before a national authority" for redressing violations of the Convention." However, for decades the prevailing view within the legal system of the United Kingdom was that the European Convention was not-to use an American constitutional law concept-incorporated into the law of the United Kingdom. This view was succinctly expressed by Lord Bridge in a 1991 decision:
It is accepted, of course, by the applicants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it. 2
Seven years later, the United Kingdom took the next step and enacted a law to apply the European Convention within the United Kingdom and make "protection of human rights primarily the responsibility of the UK courts"; 13
that law is the Human Rights Act 1998. The Human Rights Act 1998 became effective on October 2, 2000, just over a half century after the United Kingdom signed the European Convention and thereby made the Convention part of British law.'" As stated by a prominent British academic, the Convention became "internally binding" in the United Kingdom in October 2000 by virtue of the Human Rights^ Act^ 1998.
9 HENRYJ. STEINER* & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLrICS, MORALS 797 (2d ed. 2000). 10 European Convention for the Protection of (^) Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, art. 1, 213 U.N.T.S. 221, 224 [hereinafter European Convention]. "Id. art. 13,213 U.N.T.S. at 232. 12 Exparte (^) Brind, 1 A.C. 696,747 (P.C. (^) 1991). 13 HUMAN (^) RIGHTS ACT 1998: A PRACTICAL (^) GUIDE 295-96 (Rambert de Mello (^) ed., 2000). 14 Andrew Bainham, Exciting Times (^) in England-Human Rights, Children (^) and Divorce, INT'L FAM. L., July 2001, at 71, 71. "5 Nigel Lowe, New InternationalConventions Affecting the Law Relating to Children-A Causefor Concern?, INT'LFAM, L., Nov. 2001, at 171, 171.
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LEGAL RECOGNITION OF GENDER CHANGE
Key provisions of the European Convention relate directly or indirectly to matters of great concern to family law. Article 8 protects the right to respect for private and family life.' 6 Article 12 guarantees the right to marry 17 and Article 14 is a prohibition against discrimination. 8 Thus enactment of the Human Rights Act 1998 clearly had the potential to effect significant changes in British family law.' 9 How extensive those changes would be, and how quickly they would be effectuated, could not be known in 1998. Britain is still at the early stages of implementation, and the process of making British domestic law "compatible" with the European Convention is a significantly different process than constitutional adjudication in the United States.^
20
Nevertheless, two decisions of the ECHR in 2002,2" effectively reversing several earlier cases, 22 have compelled a reexamination of^ British^ law^ as^ it relates to the status of transsexual persons. The Law Lords of the House of Lords have determined that the longstanding British law that one's gender 3 at birth remains immutable,^24 is^ "incompatible"^ with^ the^ European^ Convention.^
25
This confluence of legal mandates-the Human Rights Act 1998, the ECHR decisions in 2002, and the Law Lords' decision^ in^ 2003-have^ led^ directly^ to
16 European Convention, supra note 10, art. 8, 213 U.N.T.S. at 230. '7 18 Id. Id. (^) art.art. 12,14, 213213 U.N.T.S.U.N.T.S. (^) atat 232.232. 19 In the context of this Article, "British family law" does not generally include^ Scottish family law, which varies in significant ways from the family law of the rest of Great Britain. 20 See generally Gerda Kleijkamp, Comparing the Application and Interpretation of the United States Constitution and the EuropeanConvention on Human Rights, 12 TRANSNAT'L L. & CONTEMP. PROBS. 307 (2002). 2' Goodwin v. United Kingdom, App. No. 28957/95, 35 Eur. H.R. Rep. 447 (2002); 1. v. United Kingdom, App. No. 25680/94, 36 Eur. H.R. Rep. 967 (2002). 22 Rees v. United Kingdom, (^) App. No. 9532/81, 9 Eur. H.R. Rep. (^) 56 (1986); Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R.^ Rep. 622^ (1990);^ X, Y^ and^ Z^ v.^ United Kingdom, App. No.^ 21830/93,^24 Eur.^ H.R.^ Rep.^143 (1997);^ Sheffield and^ Horsham^ v.^ United Kingdom, App. Nos. 22885/93, 23390/94, 27 Eur. H.R. Rep. 163 (1998). 23 There is much dispute as to whether (^) the proper legal term is "gender" or "sex." (^) This Article generally uses "gender" unless the context appears to demand otherwise. 24 Corbett v. Corbett, [ 1970]2 All E.R. 33, 47 (P.); Regina v. Tan, [1983] 2 All E.R. 12, 19 (C.A.); Bellinger v. Bellinger, [2002] 1 All E.R. 311,333 (C.A. 2001), affd, [2003] 2 All E.R. 593 (H.L.). 2' Bellinger v. Bellinger, [2003] 2 All E.R. 593, 605 (H.L.).
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LEGAL RECOGNITION OF (^) GENDER CHANGE
The indicia of human sex or gender (for present purposes the two terms are interchangeable) can be listed, in no particular order, as follows. (1) Chromosomes: XY pattern in males, XX in females. (2) Gonads: testes in (^) males, ovaries in females. (3) Internal sex organs other than the gonads: for instance, sperm ducts in males, uterus in females. (4) External genitalia. (5) Hormonal patterns and secondary sexual characteristics, (^) such as facial hair and body shape: no one suggests these criteria should be a primary factor in assigning sex. (6) Style of upbringing and living. (7) Self-perception.... In the vast majority of cases these indicia in an individual all point in the same direction. There is (^) no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter- sexual.... Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent. Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex.... The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.^3 "
Ell. EARLY U.K. DECISIONS ON TRANSSEXUALISM
A. MaritalStatus: Corbett (1970)
The first reported opinion in Great Britain on the gender of a post-operative transsexual person for purposes of marriage was the 1970 opinion of the High
30 Bellinger, [2003] 2 All E.R. at 597.
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Court by Judge Ormrod in Corbett v. Corbett,^3 which (^) set a mold that has yet to be broken by the British courts. The story of the short-lived marriage of Arthur Cameron Corbett and April Ashley is not a happy one. (^) The parties were in general agreement concerning the primary facts. The husband, Corbett, was married when he met Ashley in November 1960.32 Ashley had been born George Jamieson in 1935.^33 As early as 1956, Jamieson began taking the female hormone oestrogen^34 and appearing with a troupe of female impersonators using the stage names "Toni/April. '3^5 In May 1960, in Casablanca, Jamieson underwent a "sex-change operation.^ ", As described by Judge (^) Ormrod, the surgery
consisted in the amputation of the testicles and most of the scrotum, and the construction of a so-called 'artificial (^) vagina', by making (^) an opening in front of the anus, and turning in the skin of the penis after removing the muscle and other tissues from it, to form a pouch or cavity occupying approximately the position of the vagina in a female, that is between the bladder and the rectum. Parts of the scrotum were used to produce an approxima- tion in appearance to female external genitalia.3 7
There was no dispute that at the time he met Ashley, Corbett was (^) aware that Ashley had been born a male and had subsequently undergone a "sex-change operation."^3 There followed (^) a tumultuous on-again, off-again relationship between Corbett and Ashley over the next three years.^39 During that time, Corbett procured a divorce from his wife, (^) and Ashley obtained a woman's insurance card from the Ministry of National Insurance.' Ashley was not able, however, to persuade the superintendent registrar (^) to change her birth certificate.4 1^ On September 10, 1963, Corbett and Ashley had a hastily
31 Corbett v. Corbett, (1970] 2 All E.R. 33 (P.). 32 Id. at 37-39. 33 id. (^) at (^) 35. 34 This Article uses the British spelling of "estrogen" when discussing the British cases. '5 See (^) Corbett, [1970] 2 All E.R. at 36. (^36) Id. (^37) Id. '8 Id. at 37. '9 40 Id. Id. (^) atat 37-38.38-39. 41 Id. at 38.
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also strongly suggest that an investigation into "her" chromo- somal sex be carried out by some expert .... 52
A subsequent chromosomal examination showed Ashley to have XY (i.e., male) chromosomes. Judge Ormrod thus concluded that Ashley "is correctly described as a male transsexual, possibly with some comparatively minor physical abnormality. 54 Judge Ormrod noted that there are several criteria for assessing "the sexual condition" of an individual:
All the medical witnesses accept that there are, at least, four criteria for assessing the sexual condition of^ an^ individual.^ These are- (i) Chromosomal factors. (ii) Gonadal factors (presence or absence of testes or ovaries). (iii) Genital factors (including internal sex organs). (iv) Psychological factors. Some of the witnesses would add- (v) Hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique etc which are thought to^ reflect^ the balance^ between^ the^ male^ and female sex hormones in the body).^55
However, while the court found these medical criteria relevant, the court cautioned that the criteria^ "do^ not necessarily^ decide[^ ]the^ legal^ basis^ of^ sex determination. 56 Parsing the issue even more finely, Judge Ormrod dis- avowed the notion that he was determining Ashley's" 'legal sex'... at large," but rather asserted that he was only determining "what is meant by the word 'woman' in the context of^ a marriage.^ 5 7 Judge Ormrod reasoned that the critical issue was Ashley's sex at the time of marriage, rather than^ her gender,^ because
52 Id.^ at^ 41. " Id. at 46. 54 Id. at 44. 55 Id. 6 Id. (emphasis added). (^17) Id. at (^) 48.
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sex is clearly an essential determinant^ of^ the^ relationship^ called marriage, because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of^ opposite sex.
58
Using language which resonates in the current debate over same-sex marriage, and which is certain to infuriate many, Judge Ormrod concluded:
Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be^ biological,^ for^ even^ the^ most extreme degree^ of transsexualism in a male or the most severe hormonal^ imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.^59
Exactly what the learned judge meant by "the essential role of a woman in marriage" was left unexplained.^ However, based^ on his^ conclusion that^ Ashley could not perform that essential role, Judge Ormrod pronounced "the^ so-called marriage of 10th September 1963" to be void.' One cannot help but wonder whether Judge Ormrod believed that^ Ashley^ could perform^ the^ essential^ role of a man in marriage, whatever that^ role^ might^ be. Although it was unnecessary for the court to address the secondary issue of incapacity or wilful refusal to^ consummate^ the marriage,^ it^ briefly^ did.^ Judge Ormrod found Corbett's version of events (that his advances had been refused) more plausible than Ashley's (that there had been some penetration). 6 ' Ultimately, Judge^ Ormrod^ held^ that^ the^ credibility^ of^ the^ parties^ did^ not^ matter
58 Id. 59 Id. 60 Id. at 49. 61 Id.
LEGAL RECOGNITION OF GENDER CHANGE
convicted of living on the earnings of male prostitution in violation of section 5 of the Sexual Offences Act 1967, based on the earnings of Gloria Greaves.7 ° On appeal, the Court of Appeal recognized that Gloria Greaves' s status as a male was an essential ingredient of the offences asserted against Gloria and Brian Greaves. 7 ' Additionally, the court acknowledged that Corbett was limited to defining the sex of a post-operative transsexual for purposes of marriage. 7 ' The appellants argued that the Corbett rationale should not apply in the context of the two sexual offences acts if the individual "had become philosophically or psychologically or socially female."^73 The Court of Appeal summarily disposed of this argument in one relatively brief paragraph:
We reject this submission without hesitation. In our judgment, both common sense and the desirability of certainty and consis- tency demand that the decision in Corbett v Corbett should apply for the purpose, not only of marriage, but also for a charge under § 30 of the (^) Sexual Offences Act 1956 or § 5 of the Sexual Offences Act 1967. The same test would apply also if a man had indulged in buggery with another biological man. That the Corbett v Corbett decision would apply in such a case was accepted on behalf of the appellant. It would, in our view, create an unacceptable situation if the law were such that a marriage between Gloria Greaves and another man was a nullity, on the ground that Gloria Greaves was a man; that buggery to which she consented with such other person was not an offence for the same reason; but that Gloria Greaves could live on the earnings of a female prostitute without offending against § 30 of the 1956 Act because for that purpose he/she was not a man and that the like position would arise in the case of someone charged with living on his earnings as a male prostitute.^74
Thus, notwithstanding Judge Ormrod's apparent effort to speak only to the essentials of marriage in Corbett, his analysis was applied beyond the realm
70 Id. (^) at (^) 14. (^71) Id. at (^) 19. 72 id. (^73) id. (^74) Id.
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of civil law into the criminal^ realm^ in^ the^ name^ of^ "common^ sense^ ...^ certainty and consistency."^75 Even^ in^ a world^ in^ which^ marriage^ is^ generally limited^ to being between two persons of the opposite sex,^ can^ it^ truly be asserted^ that^ the supposed reasons for nullifying a marriage between a male and a male-to- female transsexual person have equal force in determining the sex^ or^ gender of a prostitute^ or^ one^ who^ profits^ from^ prostitution?^ It^ is^ certainly^ true^ that^ for whatever-probably myriad-reasons,^ Corbett^ and^ Ashley^ were^ unable^ to fulfill each other's aspirations of^ marital^ bliss.^ However,^ unquestionably, Corbett knew that Ashley had been born^ male^ and,^ if^ it^ had^ been^ an^ issue^ for Corbett, he presumably realized that Ashley could not have borne him children.^76 Clearly, even if Brian Greaves knew that Gloria Greaves was^ born^ a^ male,^77 there is no reason^ to^ believe that^ Gloria's^ customers^ shared^ this^ knowledge. There is no such suggestion in the case, and furthermore, the^ advertisements for Gloria's services referred to a "lovely tan^ coloured^ mistress," the^ "most equipped mistress in Town," and "madam."^7 " Hence, one can only surmise that customers sought and obtained^ rather^ specialized^ services^ from^ a^ person whom they believed to be female. Based on the nature of the advertised services, it is highly doubtful that they expected-or desired-Gloria to^ bear them children. The^ fact^ that^ Gloria^ was^ born^ male thus^ appears^ to^ have been utterly irrelevant to the criminal enterprise in which Gloria and Brian were engaged.
IV. CHALLENGING THE UNITED KINGDOM'S TREATMENT OF TRANSSEXUALS IN THE EUROPEAN COURT OF HUMAN RIGHTS
A. Legal Recognition of Sex Change: Rees (1987)
Overlapping the Tan case chronologically, was the inevitable claim^ by^ a female-to-male transsexual^ asserting that^ Britain's^ refusal^ to^ recognize^ him
(^75) Id. 76 Could the bearing of children be the undefined "essential role^ of^ a^ woman^ in^ marriage" alluded to by Judge Ormrod? If so, there surely are many female wives who^ are^ disinclined^ or unable for various reasons to perform that "essential role." Likewise, there surely are many male husbands similarly disinclined or unable to engage in procreation. Yet, as a general rule, the law does not deem their marriages null^ and^ void. 7' The relationship (^) between Brian and Gloria Greaves is not (^) explained in the reported decision. 78 Tan, [1983] 2 All E.R. at 15.
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was not of the sex recorded.' "92 Except for his birth certificate, all of Rees's documents eventually showed him to be male.^93 The prefix "Mr." was added to his passport (^) in 1984. 94 Rees lodged an application in 1979 with the European Commission on Human Rights complaining that U.K. law did not confer on (^) him the legal status corresponding to his actual condition. 95 He asserted violations of Articles 3, 8, and 12 of the European Convention. 96 In 1984, the Commission declared the complaints "admissible" under Articles 8 and 12 (but not under Article 3). In a report later in 1984, the Commission expressed the unanimous opinion that there had been a breach of Article 8, but not of Article 12.98 As the United Kingdom did not accept the Commission's (^) report, there followed a hearing commencing in March 1986 before the ECHR. 99 The ECHR devoted most of its analysis to the claimed breach of Article 8," which states, "Everyone has the right to respect for his private and family life, his home and his (^) correspon- dence."' The gravamen of Rees's complaint was based on the refusal of the United Kingdom to classify him legally as a male and to issue him a new birth certificate showing that classification.' 12 Whenever he was in a situation where he was required to produce his birth certificate, doing so caused him "embarrassment (^) and humiliation."' 3
Initially the ECHR noted that "although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective respect for private life." More importantly, the ECHR observed that any such positive obligations are subject to the State's "margin of appreciation. ''^4 The ECHR opined that the refusal to issue a new birth certificate cannot be considered an
92 Id. (^93) Id. (^94) id. 9' Id. at 62. (^96) ld. 97 Id. Article (^3) prohibits torture and inhumane (^) or degrading treatment or punishment. European Convention, supra note 10, art. 3, 213 U.N.T.S. at 224. 98 Rees, 9 Eur. H.R. Rep. at 62. 100^ "^ Id. Id. at 62-68. 'Ol European Convention, supra note 10, art. 8, § 1, 213 U.N.T.S. at 230. 102 Rees, 9 Eur. H.R. Rep. at 63. 103 Id. 104 id.
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"interference"' ' 5^ hence^ the issue^ was^ whether^ the United^ Kingdom^ had^ a "positive obligation" to (^) do so, subject to its "margin (^) of appreciation."'0 6^ As the ECHR^ had^ previously^ explained^ in^ its^ Abdulaziz^ v.^ United^ Kingdom judgment in 1985:
However, especially as far as those positive^ obligations^ are concerned, the notion of 'respect' [for family life] is not clear cut: having regard to the diversity of the practices followed^ and the situations obtaining^ in^ the^ Contracting^ States,^ the^ notion's requirements will vary considerably from case to case. Accord- ingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in^ determining^ the^ steps^ to^ be^ taken to ensure compliance with the Convention with^ due^ regard^ to^ the needs and resources of the community and^ of^ individuals.'0 7
Moreover, the^ ECHR^ noted^ that^ there^ was^ significant disparity^ among member States in addressing the issue. Several states allowed^ "transsexuals the option of changing their personal^ status^ to^ fit^ their^ newly-gained^ identity," but not in^ a^ uniform^ manner.1^08 Other^ states^ had^ no^ such option.'^ Because there existed "little common ground^ between^ the^ Contracting^ States^ in this^ area and.., the law appears to be in a transitional stage," the ECHR deemed^ that Contracting Parties enjoy a "wide margin of appreciation."". ° The ECHR recognized that "[i]n determining whether^ or^ not^ a^ positive obligation exists, regard must 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 United Kingdom would not recognize^ Rees^ as^ a^ man^ for all social purposes; rather he would be^ regarded^ as a^ woman^ as^ far^ as^ marriage (per Corbett),^ pension^ rights,^ and^ certain^ employment^ purposes."^2 The
105 Id. (^106) id. 107 Abdulaziz, Cabales and Balkandali v. United Kingdom, App. Nos. 9214/80,^ 9473/81, 9472/81, 7 Eur. H.R. Rep. 471, 497 (1985). 108 Rees, 9 Eur. H.R. Rep. at 63-64. 109 Id. at 64. 110 Id. 111 Id. 112 Id. at 65.
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The ECHR quickly dispatched Rees's assertion that the United Kingdom violated his right to marry under Article 12 of the European Convention. It viewed Article 12 as referring to "the traditional marriage between persons of opposite biological sex."' 23 Indeed, Article 12 contains the^ explicit^ limitation that "[mien 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."' 2 4^ While those national laws cannot restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired, the United Kingdom's restriction on transsexuals marrying persons of their original sex^ cannot^ be^ said^ to^ have such^ an^ effect.^
25
While the ECHR unanimously found no violation of Article 12, the right to marry, three of fifteen judges dissented from the finding of no violation of Article 8, the right to respect for private life. 126 The dissenting judges would have found that the United Kingdom could readily have allowed an annotation in the birth register to the effect that there had been a change in Mr. Rees's sexual identity and that it could be possible for him to obtain a short birth certificate indicating only his new sexual identity.' 27 Neither of these changes, in the dissenting judges' view, would have entailed a change in the British system of recording^ civil status.^
(^21)
B. Rees Revisited: Cossey (1990)
Only three years after the Rees decision, the ECHR was once again confronted with a claim by a British transsexual that the United Kingdom's policies violated Articles 8 and 12 of the European Convention. Barry Kenneth Cossey was born in 1954 and registered in the birth register as a male. 29 As a teenager, Cossey "understood that, although she had male external genitalia, she was psychologically of the female sex."'"^3 In 1972, Cossey assumed the first name of Caroline, which she confirmed by "deed poll" in 1973.131 A deed poll is enrolled in the Central Office of the Supreme
123 Id. at 68. 124 European Convention, supra note 10, art. 12, 213 U.N.T.S. at 232. 125 Rees, 9 Eur. H.R. Rep. at 68. 126 Id. 127 Id. at 69. 128 Id. at 70. 129 Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R. Rep. 622, 624 (1990). 130 Id. (^131) id.
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Court, and a new name thus enrolled is valid for purposes of legal identifica- tion and may be used for a variety of purposes such as the issuance of a passport and registration on the electoral roll. 132 In 1974, having already had hormone treatments, Cossey underwent gender reassignment surgery in London.' 33 According to the ECHR, "[a]s a post-operative female transsexual, she is able^ to^ have^ sexual^ intercourse^ with^ a^ man.,
' 134
In 1976, the United Kingdom^ issued Cossey^ a^ passport^ as^ a^ female.^
135
Cossey subsequently had^ a^ successful^ career^ as^ a^ fashion^ model.^
3 6
In 1983, Cossey and an Italian man wished to marry, but the registrar general informed Cossey that such a marriage would be void under English law. 37 In early 1984, Cossey lodged an application with the European Commission on Human Rights asserting that the United Kingdom was violating her rights under Article (^8) of the European Convention, the right to respect for private and family (^) life. 3 8^ She additionally invoked Article 12, the right to marry. 139 Interestingly, Cossey married another man in 1989, but that marriage was pronounced void by the English (^) High Court less than a year later."' As described by the ECHR, there had been no real change (^) of law or practice in the United Kingdom since the decision in the Rees case. The National Health Service carried out gender reassignment treatments, and adults generally were allowed to obtain new, legal names which could be used on a driver's license or passport. (^4) ' Nevertheless, the United Kingdom would not change or annotate an entry in a birth register for a post-operative transsexual absent medical evidence of an initial error; nor would it issue (^) a new birth
2 Id. at 625. I3Id. at 624. 134 Id. This (^) finding appears to directly (^) contradict Judge Ormrod's (^) conclusion in Corbett that such intercourse is, at least, a legal impossibility. (^135) Id. 136 Id. Indeed, (^) so successful was Cossey's (^) sexual transformation that she (^) appeared as a"Bond girl" in the James Bond movie, For Your Eyes Only and on the cover of Playboy magazine. See Well Known TS: Caroline Cossey (TULA) Model, Activist, at http://www.angelfire.com/ak/ mysketchbook/famous.htmi (last visited Mar. 3, 2005). 137 Cossey, (^) 13 Eur. (^) H.R. Rep. at (^) 624-25. (^138) Id. (^) at 629. t39 (^) id. '40 Id. at 625. ,41Id. at (^) 625-26.
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