CONSEIL
DE L’EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM
(Application no. 28957/95)
JUDGMENT
STRASBOURG
11 July 2002
This judgment is final but may be subject to editorial revision.
2 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
In the case of Christine Goodwin v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber
composed of the following judges:
Mr L. WILDHABER, President,
Mr J.-P. COSTA,
Sir Nicolas BRATZA,
Mrs E. PALM,
Mr L. CAFLISCH,
Mr R. TÜRMEN,
Mrs F. TULKENS,
Mr K. JUNGWIERT,
Mr M. FISCHBACH,
Mr V. BUTKEVYCH,
Mrs N. VAJIĆ,
Mr J. HEDIGAN,
Mrs H.S. GREVE,
Mr A.B. BAKA,
Mr K. TRAJA,
Mr M. UGREKHELIDZE,
Mrs A. MULARONI, judges,
and also of Mr P. J. MAHONEY, Registrar,
Having deliberated in private on 20 March and 3 July 2002,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 28957/95) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a United Kingdom national,
Ms Christine Goodwin (“the applicant”), on 5 June 1995.
2. The applicant, who had been granted legal aid, was represented by
Bindman & Partners, solicitors practising in London. The United Kingdom
Government (“the Government”) were represented by their Agent,
Mr D. Walton of the Foreign and Commonwealth Office, London.
3. The applicant alleged violations of Articles 8, 12, 13 and 14 of the
Convention in respect of the legal status of transsexuals in the United
Kingdom and particularly their treatment in the sphere of employment,
social security, pensions and marriage.
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 3
4. The application was declared admissible by the Commission on
1 December 1997 and transmitted to the Court on 1 November 1999 in
accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the
Convention, the Commission not having completed its examination of the
case by that date.
5. The application was allocated to the Third Section of the Court
(Rule 52 § 1 of the Rules of Court).
6. The applicant and the Government each filed observations on the
merits (Rule 59 § 1).
7. On 11 September 2001, a Chamber of that Section, composed of the
following judges: Mr J.-P. Costa, Mr W. Fuhrmann, Mr P. Kūris,
Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza and Mr K. Traja, and
also of Mrs S. Dollé, Section Registrar, relinquished jurisdiction in favour
of the Grand Chamber, neither of the parties having objected to
relinquishment (Article 30 of the Convention and Rule 72).
8. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the
Rules of Court. The President of the Court decided that in the interests of
the proper administration of justice, the case should be assigned to the
Grand Chamber that had been constituted to hear the case of I. v. the United
Kingdom (application no. 25680/94) (Rules 24, 43 § 2 and 71).
9. The applicant and the Government each filed a memorial on the
merits. In addition, third-party comments were received from Liberty, which
had been given leave by the President to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 61 § 3).
10. A hearing in this case and the case of I. v. the United Kingdom
(no. 25680/94) took place in public in the Human Rights Building,
Strasbourg, on 20 March 2002 (Rule 59 § 2).
There appeared before the Court:
(a) for the Government
Mr D. WALTON, Agent,
Mr RABINDER SINGH, Counsel,
Mr J. STRACHAN, Counsel,
Mr C. LLOYD,
Ms A. POWICK,
Ms S. EISA, Advisers;
(b) for the applicant
Ms L. COX, Q.C., Counsel,
Mr T. EICKE, Counsel,
Ms J. SOHRAB, Solicitor.
4 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
The applicant was also present.
The Court heard addresses by Ms Cox and Mr Rabinder Singh.
11. On 3 July 2002, Mrs Tsatsa-Nikolovska and Mr Zagrebelsky who
were unable to take part in further consideration of the case, were replaced
by Mrs Mularoni and Mr Caflisch.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
12. The applicant is a United Kingdom citizen born in 1937 and is a
post-operative male to female transsexual.
13. The applicant had a tendency to dress as a woman from early
childhood and underwent aversion therapy in 1963-64. In the mid-1960s,
she was diagnosed as a transsexual. Though she married a woman and they
had four children, her conviction was that her “brain sex” did not fit her
body. From that time until 1984 she dressed as a man for work but as a
woman in her free time. In January 1985, the applicant began treatment in
earnest, attending appointments once every three months at the Gender
Identity Clinic at the Charing Cross Hospital, which included regular
consultations with a psychiatrist as well as on occasion a psychologist. She
was prescribed hormone therapy, began attending grooming classes and
voice training. Since this time, she has lived fully as a woman. In October
1986, she underwent surgery to shorten her vocal chords. In August 1987,
she was accepted on the waiting list for gender re-assignment surgery. In
1990, she underwent gender re-assignment surgery at a National Health
Service hospital. Her treatment and surgery was provided for and paid for
by the National Health Service.
14. The applicant divorced from her former wife on a date unspecified
but continued to enjoy the love and support of her children.
15. The applicant claims that between 1990 and 1992 she was sexually
harassed by colleagues at work. She attempted to pursue a case of sexual
harassment in the Industrial Tribunal but claimed that she was unsuccessful
because she was considered in law to be a man. She did not challenge this
decision by appealing to the Employment Appeal Tribunal. The applicant
was subsequently dismissed from her employment for reasons connected
with her health, but alleges that the real reason was that she was a
transsexual.
16. In 1996, the applicant started work with a new employer and was
required to provide her National Insurance (“NI”) number. She was
concerned that the new employer would be in a position to trace her details
as once in the possession of the number it would have been possible to find
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 5
out about her previous employers and obtain information from them.
Although she requested the allocation of a new NI number from the
Department of Social Security (“DSS”), this was rejected and she eventually
gave the new employer her NI number. The applicant claims that the new
employer has now traced back her identity as she began experiencing
problems at work. Colleagues stopped speaking to her and she was told that
everyone was talking about her behind her back.
17. The DSS Contributions Agency informed the applicant that she
would be ineligible for a State pension at the age of 60, the age of
entitlement for women in the United Kingdom. In April 1997, the DSS
informed the applicant that her pension contributions would have to be
continued until the date at which she reached the age of 65, being the age of
entitlement for men, namely April 2002. On 23 April 1997, she therefore
entered into an undertaking with the DSS to pay direct the NI contributions
which would otherwise be deducted by her employer as for all male
employees. In the light of this undertaking, on 2 May 1997, the DSS
Contributions Agency issued the applicant with a Form CF 384 Age
Exemption Certificate (see Relevant domestic law and practice below).
18. The applicant's files at the DSS were marked “sensitive” to ensure
that only an employee of a particular grade had access to her files. This
meant in practice that the applicant had to make special appointments for
even the most trivial matters and could not deal directly with the local office
or deal with queries over the telephone. Her record continues to state her sex
as male and despite the “special procedures” she has received letters from
the DSS addressed to the male name which she was given at birth.
19. In a number of instances, the applicant stated that she has had to
choose between revealing her birth certificate and foregoing certain
advantages which were conditional upon her producing her birth certificate.
In particular, she has not followed through a loan conditional upon life
insurance, a re-mortgage offer and an entitlement to winter fuel allowance
from the DSS. Similarly, the applicant remains obliged to pay the higher
motor insurance premiums applicable to men. Nor did she feel able to report
a theft of 200 pounds sterling to the police, for fear that the investigation
would require her to reveal her identity.
II. RELEVANT DOMESTIC LAW AND PRACTICE
6 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
A. Names
20. Under English law, a person is entitled to adopt such first names or
surname as he or she wishes. Such names are valid for the purposes of
identification and may be used in passports, driving licences, medical and
insurance cards, etc. The new names are also entered on the electoral roll.
B. Marriage and definition of gender in domestic law
21. Under English law, marriage is defined as the voluntary union
between a man and a woman. In the case of Corbett v. Corbett ([1971]
Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to
be determined by the application of chromosomal, gonadal and genital tests
where these are congruent and without regard to any surgical intervention.
This use of biological criteria to determine sex was approved by the Court
of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given
more general application, the court holding that a person born male had
been correctly convicted under a statute penalising men who live on the
earnings of prostitution, notwithstanding the fact that the accused had
undergone gender reassignment therapy.
22. Under section 11(b) of the Matrimonial Causes Act 1973, any
marriage where the parties are not respectively male and female is void. The
test applied as to the sex of the partners to a marriage is that laid down in
the above-mentioned case of Corbett v. Corbett. According to that same
decision a marriage between a male-to-female transsexual and a man might
also be avoided on the basis that the transsexual was incapable of
consummating the marriage in the context of ordinary and complete sexual
intercourse (obiter per Mr Justice Ormrod).
This decision was reinforced by Section 12(a) of the Matrimonial Causes
Act 1973, according to which a marriage that has not been consummated
owing to the incapacity of either party to consummate may be voidable.
Section 13(1) of the Act provides that the court must not grant a decree of
nullity if it is satisfied that the petitioner knew the marriage was voidable,
but led the respondent to believe that she would not seek a decree of nullity,
and that it would be unjust to grant the decree.
C. Birth certificates
23. Registration of births is governed by the Births and Deaths
Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires
that the birth of every child be registered by the Registrar of Births and
Deaths for the area in which the child is born. An entry is regarded as a
record of the facts at the time of birth. A birth certificate accordingly
constitutes a document revealing not current identity but historical facts.
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 7
24. The sex of the child must be entered on the birth certificate. The
criteria for determining the sex of a child at birth are not defined in the Act.
The practice of the Registrar is to use exclusively the biological criteria
(chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in
the above-mentioned case of Corbett v. Corbett.
25. The 1953 Act provides for the correction by the Registrar of clerical
errors or factual errors. The official position is that an amendment may only
be made if the error occurred when the birth was registered. The fact that it
may become evident later in a person's life that his or her “psychological”
sex is in conflict with the biological criteria is not considered to imply that
the initial entry at birth was a factual error. Only in cases where the apparent
and genital sex of a child was wrongly identified, or where the biological
criteria were not congruent, can a change in the initial entry be made. It is
necessary for that purpose to adduce medical evidence that the initial entry
was incorrect. No error is accepted to exist in the birth entry of a person
who undergoes medical and surgical treatment to enable that person to
assume the role of the opposite sex.
26. The Government point out that the use of a birth certificate for
identification purposes is discouraged by the Registrar General, and for a
number of years birth certificates have contained a warning that they are not
evidence of the identity of the person presenting it. However, it is a matter
for individuals whether to follow this recommendation.
D. Social security, employment and pensions
27. A transsexual continues to be recorded for social security, national
insurance and employment purposes as being of the sex recorded at birth.
1. National Insurance
28. The DSS registers every British citizen for National Insurance
purposes (“NI”) on the basis of the information in their birth certificate.
Non-British citizens who wish to register for NI in the United Kingdom
may use their passport or identification card as evidence of identity if a birth
certificate is unavailable.
29. The DSS allocates every person registered for NI with a unique NI
number. The NI number has a standard format consisting of two letters
followed by three pairs of numbers and a further letter. It contains no
indication in itself of the holder's sex or of any other personal information.
The NI number is used to identify each person with a NI account (there are
at present approximately 60 million individual NI accounts). The DSS are
thereby able to record details of all NI contributions paid into the account
during the NI account holder's life and to monitor each person's liabilities,
contributions and entitlement to benefits accurately. New numbers may in
8 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
exceptional cases be issued to persons e.g. under the witness protection
schemes or to protect the identity of child offenders.
30. Under Regulation 44 of the Social Security (Contributions)
Regulations 1979, made under powers conferred by paragraph 8(1)(p) of
Schedule 1 to the Social Security Contributions and Benefits Act 1992,
specified individuals are placed under an obligation to apply for a NI
number unless one has already been allocated to them.
31. Under Regulation 45 of the 1979 Regulations, an employee is under
an obligation to supply his NI number to his employer on request.
32. Section 112(1) of the Social Security Administration Act 1992
provides:
“(1) If a person for the purpose of obtaining any benefit or other payment under the
legislation ...[as defined in section 110 of the Act]... whether for himself or some other
person, or for any other purpose connected with that legislation (a)
makes a statement or representation which he knows to be false; or
(b) produces or furnishes, or knowingly causes or knowingly allows to be produced
or furnished, any document or information which he knows to be false in a material
particular, he shall be guilty of an offence.”
33. It would therefore be an offence under this section for any person to
make a false statement in order to obtain a NI number.
34. Any person may adopt such first name, surname or style of address
(e.g. Mr, Mrs, Miss, Ms) that he or she wishes for the purposes of the name
used for NI registration. The DSS will record any such amendments on the
person's computer records, manual records and NI number card. But, the
DSS operates a policy of only issuing one NI number for each person
regardless of any changes that occur to that person's sexual identity through
procedures such as gender re-assignment surgery. A renewed application for
leave to apply for judicial review of the legality of this policy brought by a
male-to-female transsexual was dismissed by the Court of Appeal in the
case of R v. Secretary of State for Social Services ex parte Hooker (1993)
(unreported). McCowan LJ giving the judgment of the Court stated (at
page 3 of the transcript):
“...since it will not make the slightest practical difference, far from the Secretary of
State's decision being an irrational one, I consider it a perfectly rational decision. I
would further reject the suggestion that the applicant had a legitimate expectation that
a new number would be given to her for psychological purposes when, in fact, its
practical effect would be nil.”
35. Information held in the DSS NI records is confidential and will not
normally be disclosed to third parties without the consent of the person
concerned. Exceptions are possible in cases where the public interest is at
stake or the disclosure is necessary to protect public funds. By virtue of
Section 123 of the Social Security Administration Act 1992, it is an offence
for any person employed in social security administration to disclose
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 9
without lawful authority information acquired in the course of his or her
employment.
36. The DSS operates a policy of normally marking records belonging to
persons known to be transsexual as nationally sensitive. Access to these
records is controlled by DSS management. Any computer printer output
from these records will normally be referred to a special section within the
DSS to ensure that identity details conform with those requested by the
relevant person.
37. NI contributions are made by way of deduction from an employee's
pay by the employer and then by payment to the Inland Revenue (for
onward transmission to the DSS). Employers at present will make such
deductions for a female employee until she reaches the pensionable age of
60 and for a male employee until he reaches the pensionable age of 65. The
DSS operates a policy for male-to-female transsexuals whereby they may
enter into an undertaking with the DSS to pay direct to the DSS any NI
contributions due after the transsexual has reached the age of 60 which have
ceased to be deducted by the employer in the belief that the employee is
female. In the case of female-to-male transsexuals, any deductions which
are made by an employer after the age of 60 may be reclaimed directly from
the DSS by the employee.
38. In some cases employers will require proof that an apparent female
employee has reached, or is about to reach, the age of 60 and so entitled not
to have the NI deductions made. Such proof may be provided in the form of
an Age Exemption Certificate (form CA4180 or CF384). The DSS may
issue such a certificate to a male-to-female transsexual where such a person
enters into an undertaking to pay any NI contributions direct to the DSS.
2. State pensions
39. A male-to-female transsexual is currently entitled to a State pension
at the retirement age of 65 applied to men and not the age of 60 which is
applicable to women. A full pension will be payable only if she has made
contributions for 44 years as opposed to the 39 years required of women.
40. A person's sex for the purposes of pensionable age is determined
according to biological sex at birth. This approach was approved by the
Social Security Commissioner (a judicial officer, who specialises in social
security law) in a number of cases:
In the case entitled R(P) 2/80, a male-to-female transsexual claimed
entitlement to a pensionable age of 60. The Commissioner dismissed the
claimant's appeal and stated at paragraph 9 of his decision:
“(a) In my view, the word “woman” in section 27 of the Act means a person who is
biologically a woman. Sections 28 and 29 contain many references to a woman in
10 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
terms which indicate that a person is denoted who is capable of forming a valid
marriage with a husband. That can only be a person who is biologically a woman.
(b) I doubt whether the distinction between a person who is biologically, and one
who is socially, female has ever been present in the minds of the legislators when
enacting relevant statutes. However that may be, it is certain that Parliament has never
conferred on any person the right or privilege of changing the basis of his national
insurance rights from those appropriate to a man to those appropriate to a woman. In
my judgment, such a fundamental right or privilege would have to be expressly
granted. ...
(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are
not all on her side. She lived as a man from birth until 1975, and, during the part of
that period when she was adult, her insurance rights were those appropriate to a man.
These rights are in some respects more extensive than those appropriate to a woman.
Accordingly, an element of unfairness to the general public might have to be tolerated
so as to allow the payment of a pension to her at the pensionable age of a woman.”
41. The Government have instituted plans to eradicate the difference
between men and women concerning age of entitlement to State pensions.
Equalisation of the pension age is to begin in 2010 and it is anticipated that
by 2020 the transition will be complete. As regards the issue of free bus
passes in London, which also differentiated between men and women
concerning age of eligibility (65 and 60 respectively), the Government have
also announced plans to introduce a uniform age.
3. Employment
42. Under section 16(1) of the Theft Act 1968, it is a criminal offence
liable to a sentence of imprisonment to dishonestly obtain a pecuniary
advantage by deception. Pecuniary advantage includes, under
section 16(2)(c), being given the opportunity to earn remuneration in
employment. Should a post-operative transsexual be asked by a prospective
employer to disclose all their previous names, but fail to make full
disclosure before entering into a contract of employment, an offence might
be committed. Furthermore, should the employer discover the lack of full
disclosure, there might also be a risk of dismissal or an action by the
employer for damages.
43. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall
County Council, the European Court of Justice (ECJ) held that
discrimination arising from gender reassignment constituted discrimination
on grounds of sex and, accordingly, Article 5 § 1 of Council Directive
76/207/EEC of 9 February 1976 on the implementation of the principle of
equal treatment for men and women as regards access to employment,
vocational training and promotion and working conditions, precluded
dismissal of a transsexual for a reason related to a gender reassignment. The
ECJ held, rejecting the argument of the United Kingdom Government that
the employer would also have dismissed P. if P. had previously been a
woman and had undergone an operation to become a man, that
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 11
“... where a person is dismissed on the ground that he or she intends to undergo or
has undergone gender reassignment, he or she is treated unfavourably by comparison
with persons of the sex to which he or she was deemed to belong before undergoing
gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a
failure to respect the dignity and freedom to which he or she is entitled and which the
Court has a duty to safeguard.” (paragraphs 21–22)
44. The ruling of the ECJ was applied by the Employment Appeal
Tribunal in a decision handed down on 27 June 1997 (Chessington World of
Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).
45. The Sexual Discrimination (Gender Re-assignment) Regulations
1999 were issued to comply with the ruling of the European Court of Justice
in P. v. S. and Cornwall County Council (30 April 1996). This provides
generally that transsexual persons should not be treated less favourably in
employment because they are transsexual (whether pre- or post-operative).
E. Rape
46. Prior to 1994, for the purposes of the law of rape, a male-to-female
transsexual would have been regarded as a male. Pursuant to section 142 of
the Criminal Justice and Public Order Act 1994, for rape to be established
there has to be “vaginal or anal intercourse with a person”. In a judgment of
28 October 1996, the Reading Crown Court found that penile penetration of
a male to female transsexual's artificially constructed vagina amounted to
rape: R. v. Matthews (unreported).
F. Imprisonment
47. Prison rules require that male and female prisoners shall normally be
detained separately and also that no prisoner shall be stripped and searched
in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the
Prison Rules 1999 respectively).
48. According to the Report of the Working Group on Transsexual
People (Home Office April 2000, see further below, paragraphs 49-50),
which conducted a review of law and practice, post-operative transsexuals
where possible were allocated to an establishment for prisoners of their new
gender. Detailed guidelines concerning the searching of transsexual
prisoners were under consideration by which post-operative male to female
transsexuals would be treated as women for the purposes of searches and
searched only by women (see paragraphs 2.75-2.76).
G. Current developments
1. Review of the situation of transsexuals in the United Kingdom
12 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
49. On 14 April 1999, the Secretary of State for the Home Department
announced the establishment of an Interdepartmental Working Group on
Transsexual People with the following terms of reference:
“to consider, with particular reference to birth certificates, the need for appropriate
legal measures to address the problems experienced by transsexuals, having due
regard to scientific and societal developments, and measures undertaken in other
countries to deal with this issue.”
50. The Working Group produced a report in April 2000 in which it
examined the current position of transsexuals in the United Kingdom, with
particular reference to their status under national law and the changes which
might be made. It concluded:
“5.1. Transsexual people deal with their condition in different ways. Some live in
the opposite sex without any treatment to acquire its physical attributes. Others take
hormones so as to obtain some of the secondary characteristics of their chosen sex. A
smaller number will undergo surgical procedures to make their bodies resemble, so far
as possible, those of their acquired gender. The extent of treatment may be determined
by individual choice, or by other factors such as health or financial resources. Many
people revert to their biological sex after living for some time in the opposite sex, and
some alternate between the two sexes throughout their lives. Consideration of the way
forward must therefore take into account the needs of people at these different stages
of change.
5.2. Measures have already been taken in a number of areas to assist transsexual
people. For example, discrimination in employment against people on the basis of
their transsexuality has been prohibited by the Sex Discrimination (Gender
Reassignment) Regulations 1999 which, with few exceptions, provide that a
transsexual person (whether pre- or post-operative) should not be treated less
favourably because they are transsexual. The criminal justice system (i.e. the police,
prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is
possible within operational constraints. A transsexual offender will normally be
charged in their acquired gender, and a post-operative prisoner will usually be sent to
a prison appropriate to their new status. Transsexual victims and witnesses will, in
most circumstances, similarly be treated as belonging to their acquired gender.
5.3. In addition, official documents will often be issued in the acquired gender
where the issue is identifying the individual rather than legal status. Thus, a
transsexual person may obtain a passport, driving licence, medical card etc, in their
new gender. We understand that many non-governmental bodies, such as examination
authorities, will often re-issue examination certificates etc. (or otherwise provide
evidence of qualifications) showing the required gender. We also found that at least
one insurance company will issue policies to transsexual people in their acquired
gender.
5.4. Notwithstanding such provisions, transsexual people are conscious of certain
problems which do not have to be faced by the majority of the population.
Submissions to the Group suggested that the principal areas where the transsexual
community is seeking change are birth certificates, the right to marry and full
recognition of their new gender for all legal purposes.
5.5. We have identified three options for the future;
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 13
– to leave the current situation unchanged;
– to issue birth certificates showing the new name and, possibly, the new gender;
– to grant full legal recognition of the new gender subject to certain criteria and
procedures.
We suggest that before taking a view on these options the Government may wish to
put the issues out to public consultation.”
51. The report was presented to Parliament in July 2000. Copies were
placed in the libraries of both Houses of Parliament and sent to 280
recipients, including Working Group members, Government officials,
Members of Parliament, individuals and organisations. It was publicised by
a Home Office press notice and made available to members of the public
through application to the Home Office in writing, E-mail, by telephone or
the Home Office web site.
2. Recent domestic case-law
52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001],
3 FCR 1, the appellant who had been classified at birth as a man had
undergone gender re-assignment surgery and in 1981 had gone through a
form of marriage with a man who was aware of her background. She sought
a declaration under the Family Law Act 1986 that the marriage was valid.
The Court of Appeal held, by a majority, that the appellant's marriage was
invalid as the parties were not respectively male and female, which terms
were to be determined by biological criteria as set out in the decision of
Corbett v. Corbett [1971]. Although it was noted that there was an
increasing emphasis upon the impact of psychological factors on gender,
there was no clear point at which such factors could be said to have effected
a change of gender. A person correctly registered as male at birth, who had
undergone gender reassignment surgery and was now living as a woman
was biologically a male and therefore could not be defined as female for the
purposes of marriage. It was for Parliament, not for the courts, to decide at
what point it would be appropriate to recognise that a person who had been
assigned to one sex at birth had changed gender for the purposes of
marriage. Dame Elizabeth Butler-Sloss, President of the Family Division
noted the warnings of the European Court of Human Rights about continued
lack of response to the situation of transsexuals and observed that largely as
a result of these criticisms an interdepartmental working group had been set
up, which had in April 2000 issued a careful and comprehensive review of
the medical condition, current practice in other countries and the state of
English law in relevant aspects of the life of an individual:
“[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps
were being taken by any government department, to take forward any of the
recommendations of the Report, or to prepare a consultation paper for public
discussion.
14 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
[96.] To our dismay, we were informed that no steps whatsoever have been, or to
the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward.
It appears, therefore, that the commissioning and completion of the report is the sum
of the activity on the problems identified both by the Home Secretary in his terms of
reference, and by the conclusions of the members of the working group. That would
seem to us to be a failure to recognise the increasing concerns and changing attitudes
across western Europe which have been set out so clearly and strongly in judgments of
Members of the European Court at Strasbourg, and which in our view need to be
addressed by the UK...
[109.] We would add however, with the strictures of the European Court of Human
Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of
the present position and the plight of transsexuals requires careful consideration. The
recommendation of the interdepartmental working group for public consultation
merits action by the government departments involved in these issues. The problems
will not go away and may well come again before the European Court sooner rather
than later.”
53. In his dissenting judgment, Lord Justice Thorpe considered that the
foundations of the judgment in Corbett v. Corbett were no longer secure,
taking the view that an approach restricted to biological criteria was no
longer permissible in the light of scientific, medical and social change.
“[155.] To make the chromosomal factor conclusive, or even dominant, seems to
me particularly questionable in the context of marriage. For it is an invisible feature of
an individual, incapable of perception or registration other than by scientific test. It
makes no contribution to the physiological or psychological self. Indeed in the context
of the institution of marriage as it is today it seems to me right as a matter of principle
and logic to give predominance to psychological factors just as it seem right to carry
out the essential assessment of gender at or shortly before the time of marriage rather
than at the time of birth...
[160.] The present claim lies most evidently in the territory of the family justice
system. That system must always be sufficiently flexible to accommodate social
change. It must also be humane and swift to recognise the right to human dignity and
to freedom of choice in the individual's private life. One of the objectives of statute
law reform in this field must be to ensure that the law reacts to and reflects social
change. That must also be an objective of the judges in this field in the construction of
existing statutory provisions. I am strongly of the opinion that there are not
sufficiently compelling reasons, having regard to the interests of others affected or,
more relevantly, the interests of society as a whole, to deny this appellant legal
recognition of her marriage. I would have allowed this appeal.”
He also noted the lack of progress in domestic reforms:
“[151.] ...although the [interdepartmental] report has been made available by
publication, Mr Moylan said that there has since been no public consultation.
Furthermore when asked whether the Government had any present intention of
initiating public consultation or any other process in preparation for a parliamentary
Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as
to whether the Government intended to legislate. My experience over the last 10 years
suggests how hard it is for any department to gain a slot for family law reform by
primary legislation. These circumstances reinforce my view that it is not only open to
the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as
the evidence and the submissions in this case justify.”
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 15
3. Proposals to reform the system of registration of births, marriages
and deaths
54. In January 2002, the Government presented to Parliament the
document “Civil Registration: Vital Change (Birth, Marriage and Death
Registration in the 21st
Century)” which set out plans for creating a central
database of registration records which moves away from a traditional
snapshot of life events towards the concept of a living record or single
“through life” record:
“In time, updating the information in a birth record will mean that changes to a
person's names, and potentially, sex will be able to be recorded.” (para. 5.1)
“5.5 Making changes
There is strong support for some relaxation to the rules that govern corrections to
the records. Currently, once a record has been created, the only corrections that can be
made are where it can be shown that an error was made at the time of registration and
that this can be established. Correcting even the simplest spelling error requires formal
procedures and the examination of appropriate evidence. The final records contains
the full original and corrected information which is shown on subsequently issued
certificates. The Government recognises that this can act as a disincentive. In future,
changes (to reflect developments after the original record was made) will be made and
formally recorded. Documents issued from the records will contain only the
information as amended, though all the information will be retained. ...”
H. Liberty's third party intervention
55. Liberty updated the written observations submitted in the case of
Sheffield and Horsham concerning the legal recognition of transsexuals in
comparative law (Sheffield and Horsham v. the United Kingdom judgment
of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021,
§ 35). In its 1998 study, it had found that over the previous decade there had
been an unmistakable trend in the member States of the Council of Europe
towards giving full legal recognition to gender re-assignment. In particular,
it noted that out of thirty seven countries analysed only four (including the
United Kingdom) did not permit a change to be made to a person's birth
certificate in one form or another to reflect the re-assigned sex of that
person. In cases where gender re-assignment was legal and publicly funded,
only the United Kingdom and Ireland did not give full legal recognition to
the new gender identity.
56. In its follow up study submitted on 17 January 2002, Liberty noted
that while there had not been a statistical increase in States giving full legal
recognition of gender re-assignment within Europe, information from
outside Europe showed developments in this direction. For example, there
had been statutory recognition of gender re-assignment in Singapore, and a
similar pattern of recognition in Canada, South Africa, Israel, Australia,
New Zealand and all except two of the States of the United States of
16 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
America. It cited in particular the cases of Attorney-General v. Otahuhu
Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where
in New Zealand and Australia transsexual persons' assigned sex was
recognised for the purposes of validating their marriages: In the latter case,
Mr Justice Chisholm held:
“I see no basis in legal principle or policy why Australian law should follow the
decision in Corbett. To do so would, I think, create indefensible inconsistencies
between Australian marriage law and other Australian laws. It would take the law in a
direction that is generally contrary to development in other countries. It would
perpetuate a view that flies in the face of current medical understanding and practice.
Most of all, it would impose indefensible suffering on people who have already had
more than their share of difficulty, with no benefit to society...
...Because the words 'man' and 'woman' have their ordinary contemporary meaning,
there is no formulaic solution to determining the sex of an individual for the purpose
of the law of marriage. That is, it cannot be said as a matter of law that the question in
a particular case will be determined by applying a single criterion, or limited list of
criteria. Thus it is wrong to say that a person's sex depends on any single factor, such
as chromosomes or genital sex; or some limited range of factors, such as the state of
the person's gonads, chromosomes or genitals (whether at birth or at some other time).
Similarly, it would be wrong in law to say that the question can be resolved by
reference solely to the person's psychological state, or by identifying the person's
'brain sex'.
To determine a person's sex for the law of marriage, all relevant matters need to be
considered. I do not seek to state a complete list or suggest that any factors necessarily
have more importance than others. However the relevant matters include, in my
opinion, the person's biological and physical characteristics at birth (including gonads,
genitals and chromosomes); the person's life experiences, including the sex in which
he or she was brought up and the person's attitude to it; the person's self-perception as
a man or a woman; the extent to which the person has functioned in society as a man
or a woman; any hormonal, surgical or other medical sex re-assignment treatments the
person has undergone, and the consequences of such treatment; and the person's
biological, psychological and physical characteristics at the time of the marriage...
For the purpose of ascertaining the validity of a marriage under Australian law the
question whether a person is a man or a woman is to be determined as of the date of
marriage...”
57. As regarded the eligibility of post-operative transsexuals to marry a
person of sex opposite to their acquired gender, Liberty's survey indicated
that 54% of Contracting States permitted such marriage (Annex 6 listed
Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece,
Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia,
Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not
(Ireland and the United Kingdom did not permit marriage, while no
legislation existed in Moldova, Poland, Romania and Russia). The legal
position in the remaining 32% was unclear.
III. INTERNATIONAL TEXTS
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 17
58. Article 9 of the Charter of Fundamental Rights of the European
Union, signed on 7 December 2000, provides:
“The right to marry and the right to found a family shall be guaranteed in
accordance with the national laws governing the exercise of these rights.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
59. The applicant claims a violation of Article 8 of the Convention, the
relevant part of which provides as follows:
“1. Everyone has the right to respect for his private ... life...
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. Arguments of the parties
1. The applicant
60. The applicant submitted that despite warnings from the Court as to
the importance for keeping under review the need for legal reform the
Government had still not taken any constructive steps to address the
suffering and distress experienced by the applicant and other post-operative
transsexuals. The lack of legal recognition of her changed gender had been
the cause of numerous discriminatory and humiliating experiences in her
everyday life. In the past, in particular from 1990 to 1992, she was abused at
work and did not receive proper protection against discrimination. She
claimed that all the special procedures through which she had to go in
respect of her NI contributions and State retirement pension constituted in
themselves an unjustified difference in treatment, as they would have been
unnecessary had she been recognised as a woman for legal purposes. In
particular, the very fact that the DSS operated a policy of marking the
records of transsexuals as sensitive was a difference in treatment. As a
result, for example, the applicant cannot attend the DSS without having to
make a special appointment.
61. The applicant further submitted that the danger of her employer
learning about her past identity was real. It was possible for the employer to
trace back her employment history on the basis of her NI number and this
had in fact happened. She claimed that her recent failure to obtain a
promotion was the result of the employer realising her status.
18 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
62. As regarded pensionable age, the applicant submitted that she had
worked for 44 years and that the refusal of her entitlement to a State
retirement pension at the age of 60 on the basis of the pure biological test
for determining sex was contrary to Article 8 of the Convention. She was
similarly unable to apply for a free London bus pass at the age of 60 as other
women were but had to wait until the age of 65. She was also required to
declare her birth sex or disclose her birth certificate when applying for life
insurance, mortgages, private pensions or car insurance, which led her not to
pursue these possibilities to her advantage.
63. The applicant argued that rapid changes, in respect of the scientific
understanding of, and the social attitude towards, transsexualism were
taking place not only across Europe but elsewhere. She referred, inter alia,
to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of 14
April 1982 of Italy, and Article 29 of the Civil Code of Turkey as amended
by Law No. 3444 of 4 May 1988, which allowed the amendment of civil
status. Also, under a 1995 New Zealand statute, Part V, Section 28, a court
could order the legal recognition of the changed gender of a transsexual
after examination of medical and other evidence. The applicant saw no
convincing reason why a similar approach should not be adopted in the
United Kingdom. The applicant also pointed to increasing social acceptance
of transsexuals and interest in issues of concern to them reflected by
coverage in the press, radio and television, including sympathetic
dramatisation of transsexual characters in mainstream programming.
2. The Government
64. Referring to the Court's case-law, the Government maintained that
there was no generally accepted approach among the Contracting States in
respect of transsexuality and that, in view of the margin of appreciation left
to States under the Convention, the lack of recognition in the United
Kingdom of the applicant's new gender identity for legal purposes did not
entail a violation of Article 8 of the Convention. They disputed the
applicant's assertion that scientific research and “massive societal changes”
had led to wide acceptance, or consensus on issues, of transsexualism.
65. The Government accepted that there may be specific instances where
the refusal to grant legal recognition of a transsexual's new sexual identity
may amount to a breach of Article 8, in particular where the transsexual as a
result suffered practical and actual detriment and humiliation on a daily
basis (see the B. v. France judgment of 25 March 1992, Series A no. 232-C,
pp. 52-54, §§ 59-63). However, they denied that the applicant faced any
comparable practical disadvantages, as she had been able inter alia to obtain
important identification documents showing her chosen names and sexual
identity (e.g. new passport and driving licence).
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 19
66. As regards the specific difficulties claimed by the applicant, the
Government submitted that an employer was unable to establish the sex of
the applicant from the NI number itself since it did not contain any encoded
reference to her sex. The applicant had been issued with a new NI card with
her changed name and style of address. Furthermore, the DSS had a policy
of confidentiality of the personal details of a NI number holder and, in
particular, a policy and procedure for the special protection of transsexuals.
As a result, an employer had no means of lawfully obtaining information
from the DSS about the previous sexual identity of an employee. It was also
in their view highly unlikely that the applicant's employer would discover
her change of gender through her NI number in any other way. The refusal
to issue a new NI number was justified, the uniqueness of the NI number
being of critical importance in the administration of the national insurance
system, and for the prevention of the fraudulent use of old NI numbers.
67. The Government argued that the applicant's fear that her previous
sexual identity would be revealed upon reaching the age of 60, when her
employer would no longer be required to make NI contribution deductions
from her pay, was entirely without foundation, the applicant having already
been issued with a suitable Age Exemption Certificate on Form CF384.
68. Concerning the impossibility for the applicant to obtain a State
retirement pension at the age of 60, the Government submitted that the
distinction between men and women as regarded pension age had been held
to be compatible with European Community law (Article 7(1)(a) of
Directive 79/7/EEC; European Court of Justice, R. v. Secretary of State for
Social Security ex parte Equal Opportunities Commission Case C-9/91
[1992] ECR I-4927). Also, since the preserving of the applicant's legal
status as a man was not contrary as such to Article 8 of the Convention, it
would constitute favourable treatment unfair to the general public to allow
the applicant's pension entitlement at the age of 60.
69. Finally, as regards allegations of assault and abuse at work, the
Government submitted that the applicant could have pressed charges under
the criminal law against harassment and assault. Harassment in the
workplace on the grounds of transsexuality would also give rise to a claim
under the Sex Discrimination Act 1975 where the employers knew of the
harassment and took no steps to prevent it. Adequate protection was
therefore available under domestic law.
70. The Government submitted that a fair balance had therefore been
struck between the rights of the individual and the general interest of the
community. To the extent that there were situations where a transsexual
may face limited disclosure of their change of sex, these situations were
unavoidable and necessary e.g. in the context of contracts of insurance
where medical history and gender affected the calculation of premiums.
B. The Court's assessment
20 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
1. Preliminary considerations
71. This case raises the issue whether or not the respondent State has
failed to comply with a positive obligation to ensure the right of the
applicant, a post-operative male to female transsexual, to respect for her
private life, in particular through the lack of legal recognition given to her
gender re-assignment.
72. The Court recalls that the notion of “respect” as understood in
Article 8 is not clear cut, especially as far as the positive obligations
inherent in that concept are concerned: having regard to the diversity of
practices followed and the situations obtaining in the Contracting States, the
notion's requirements will vary considerably from case to case and the
margin of appreciation to be accorded to the authorities may be wider than
that applied in other areas under the Convention. In determining whether or
not a positive obligation exists, regard must also 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 search for which balance is inherent in the
whole of the Convention (Cossey v. the United Kingdom judgment of
27 September 1990, Series A no. 184, p. 15, § 37).
73. The Court recalls that it has already examined complaints about the
position of transsexuals in the United Kingdom (see the Rees v. the United
Kingdom judgment of 17 October 1986, Series A no. 106, the Cossey v. the
United Kingdom judgment, cited above; the X., Y. and Z. v. the United
Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions
1997-II, and the Sheffield and Horsham v. the United Kingdom judgment of
30 July 1998, Reports 1998-V, p. 2011). In those cases, it held that the
refusal of the United Kingdom Government to alter the register of births or
to issue birth certificates whose contents and nature differed from those of
the original entries concerning the recorded gender of the individual could
not be considered as an interference with the right to respect for private life
(the above-mentioned Rees judgment, p. 14, § 35, and Cossey judgment,
p. 15, § 36). It also held that there was no positive obligation on the
Government to alter their existing system for the registration of births by
establishing a new system or type of documentation to provide proof of
current civil status. Similarly, there was no duty on the Government to
permit annotations to the existing register of births, or to keep any such
annotation secret from third parties (the above-mentioned Rees judgment,
p. 17, § 42, and Cossey judgment, p. 15, §§ 38-39). It was found in those
cases that the authorities had taken steps to minimise intrusive enquiries (for
example, by allowing transsexuals to be issued with driving licences,
passports and other types of documents in their new name and gender). Nor
had it been shown that the failure to accord general legal recognition of the
change of gender had given rise in the applicants' own case histories to
detriment of sufficient seriousness to override the respondent State's margin
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 21
of appreciation in this area (the Sheffield and Horsham judgment cited
above, p. 2028-29, § 59).
74. While the Court is not formally bound to follow its previous
judgments, it is in the interests of legal certainty, foreseeability and equality
before the law that it should not depart, without good reason, from
precedents laid down in previous cases (see, for example, Chapman v. the
United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 70). However, since
the Convention is first and foremost a system for the protection of human
rights, the Court must have regard to the changing conditions within the
respondent State and within Contracting States generally and respond, for
example, to any evolving convergence as to the standards to be achieved
(see, amongst other authorities, the Cossey judgment, p. 14, § 35, and
Stafford v. the United Kingdom [GC], no. 46295/99, judgment of 28 May
2002, to be published in ECHR 2002-, §§ 67-68). It is of crucial importance
that the Convention is interpreted and applied in a manner which renders its
rights practical and effective, not theoretical and illusory. A failure by the
Court to maintain a dynamic and evolutive approach would indeed risk
rendering it a bar to reform or improvement (see the above-cited Stafford
v. the United Kingdom judgment, § 68). In the present context the Court has,
on several occasions since 1986, signalled its consciousness of the serious
problems facing transsexuals and stressed the importance of keeping the
need for appropriate legal measures in this area under review (see the Rees
judgment, § 47; the Cossey judgment, § 42; the Sheffield and Horsham
judgment, § 60).
75. The Court proposes therefore to look at the situation within and
outside the Contracting State to assess “in the light of present-day
conditions” what is now the appropriate interpretation and application of the
Convention (see the Tyrer v. the United Kingdom judgment of 25 April
1978, Series A no. 26, § 31, and subsequent case-law).
2. The applicant's situation as a transsexual
76. The Court observes that the applicant, registered at birth as male, has
undergone gender re-assignment surgery and lives in society as a female.
Nonetheless, the applicant remains, for legal purposes, a male. This has had,
and continues to have, effects on the applicant's life where sex is of legal
relevance and distinctions are made between men and women, as, inter alia,
in the area of pensions and retirement age. For example, the applicant must
continue to pay national insurance contributions until the age of 65 due to
her legal status as male. However as she is employed in her gender identity
as a female, she has had to obtain an exemption certificate which allows the
payments from her employer to stop while she continues to make such
payments herself. Though the Government submitted that this made due
allowance for the difficulties of her position, the Court would note that she
22 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
nonetheless has to make use of a special procedure that might in itself call
attention to her status.
77. It must also be recognised that serious interference with private life
can arise where the state of domestic law conflicts with an important aspect
of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom
judgment of 22 October 1981, Series A no. 45, § 41). The stress and
alienation arising from a discordance between the position in society
assumed by a post-operative transsexual and the status imposed by law
which refuses to recognise the change of gender cannot, in the Court's view,
be regarded as a minor inconvenience arising from a formality. A conflict
between social reality and law arises which places the transsexual in an
anomalous position, in which he or she may experience feelings of
vulnerability, humiliation and anxiety.
78. In this case, as in many others, the applicant's gender re-assignment
was carried out by the national health service, which recognises the
condition of gender dysphoria and provides, inter alia, re-assignment by
surgery, with a view to achieving as one of its principal purposes as close an
assimilation as possible to the gender in which the transsexual perceives that
he or she properly belongs. The Court is struck by the fact that nonetheless
the gender re-assignment which is lawfully provided is not met with full
recognition in law, which might be regarded as the final and culminating
step in the long and difficult process of transformation which the
transsexual has undergone. 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.
79. The Court notes that the unsatisfactory nature of the current position
and plight of transsexuals in the United Kingdom has been acknowledged in
the domestic courts (see Bellinger v. Bellinger, cited above, paragraph 52)
and by the Interdepartmental Working Group which surveyed the situation
in the United Kingdom and concluded that, notwithstanding the
accommodations reached in practice, transsexual people were conscious of
certain problems which did not have to be faced by the majority of the
population (paragraph 50 above).
80. Against these considerations, the Court has examined the
countervailing arguments of a public interest nature put forward as
justifying the continuation of the present situation. It observes that in the
previous United Kingdom cases weight was given to medical and scientific
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 23
considerations, the state of any European and international consensus and
the impact of any changes to the current birth register system.
3. Medical and scientific considerations
81. It remains the case that there are no conclusive findings as to the
cause of transsexualism and, in particular, whether it is wholly
psychological or associated with physical differentiation in the brain. The
expert evidence in the domestic case of Bellinger v. Bellinger was found to
indicate a growing acceptance of findings of sexual differences in the brain
that are determined pre-natally, though scientific proof for the theory was
far from complete. The Court considers it more significant however that
transsexualism has wide international recognition as a medical condition for
which treatment is provided in order to afford relief (for example, the
Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the
diagnosis of transsexualism with “gender identity disorder”; see also the
International Classification of Diseases, tenth edition (ICD-10)). The United
Kingdom national health service, in common with the vast majority of
Contracting States, acknowledges the existence of the condition and
provides or permits treatment, including irreversible surgery. The medical
and surgical acts which in this case rendered the gender re-assignment
possible were indeed carried out under the supervision of the national health
authorities. Nor, given the numerous and painful interventions involved in
such surgery and the level of commitment and conviction required to
achieve a change in social gender role, can it be suggested that there is
anything arbitrary or capricious in the decision taken by a person to undergo
gender re-assignment. In those circumstances, the ongoing scientific and
medical debate as to the exact causes of the condition is of diminished
relevance.
82. While it also remains the case that a transsexual cannot acquire all
the biological characteristics of the assigned sex (Sheffield and Horsham,
cited above, p. 2028, § 56), the Court notes that with increasingly
sophisticated surgery and types of hormonal treatments, the principal
unchanging biological aspect of gender identity is the chromosomal
element. It is known however that chromosomal anomalies may arise
naturally (for example, in cases of intersex conditions where the biological
criteria at birth are not congruent) and in those cases, some persons have to
be assigned to one sex or the other as seems most appropriate in the
circumstances of the individual case. It is not apparent to the Court 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 (see the dissenting opinion of Thorpe LJ in Bellinger v.
Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in
the Australian case, Re Kevin, cited in paragraph 55 above).
24 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
83. The Court is not persuaded therefore that the state of medical science
or scientific knowledge provides any determining argument as regards the
legal recognition of transsexuals.
4. The state of any European and international consensus
84. 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). The latest survey submitted by Liberty in the present case shows
a continuing international trend towards legal recognition (see paragraphs
55-56 above). In Australia and New Zealand, it appears that the courts are
moving away from the biological birth view of sex (as set out in the United
Kingdom case of Corbett v. Corbett) and taking the view that sex, in the
context of a transsexual wishing to marry, should depend on a multitude of
factors to be assessed at the time of the marriage.
85. The Court observes that in the case of Rees in 1986 it had noted that
little common ground existed between States, some of which did permit
change of gender and some of which did not and that generally speaking the
law seemed to be in a state of transition (see § 37). In the later case of
Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a
common European 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. While this would
appear to remain the case, the lack of such a common approach among
forty-three Contracting States with widely diverse legal systems and
traditions is hardly surprising. In accordance with the principle of
subsidiarity, it is indeed primarily for the Contracting States to decide on the
measures necessary to secure Convention rights within their jurisdiction
and, in resolving within their domestic legal systems the practical problems
created by the legal recognition of post-operative gender status, the
Contracting States must enjoy a wide margin of appreciation. 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 postoperative
transsexuals.
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 25
5. Impact on the birth register system
86. In the Rees case, the Court allowed that great importance could be
placed by the Government on the historical nature of the birth record
system. The argument that allowing exceptions to this system would
undermine its function weighed heavily in the assessment.
87. It may be noted however that exceptions are already made to the
historic basis of the birth register system, namely, in the case of
legitimisation or adoptions, where there is a possibility of issuing updated
certificates to reflect a change in status after birth. To make a further
exception in the case of transsexuals (a category estimated as including
some 2,000-5,000 persons in the United Kingdom according to the
Interdepartmental Working Group Report, p. 26) would not, in the Court's
view, pose the threat of overturning the entire system. Though previous
reference has been made to detriment suffered by third parties who might be
unable to obtain access to the original entries and to complications
occurring in the field of family and succession law (see the Rees judgment,
p. 18, § 43), these assertions are framed in general terms and the Court does
not find, on the basis of the material before it at this time, that any real
prospect of prejudice has been identified as likely to arise if changes were
made to the current system.
88. Furthermore, the Court notes that the Government have recently
issued proposals for reform which would allow ongoing amendment to civil
status data (see paragraph 54). It is not convinced therefore that the need to
uphold rigidly the integrity of the historic basis of the birth registration
system takes on the same importance in the current climate as it did in 1986.
6. Striking a balance in the present case
89. The Court has noted above (paragraphs 76-79) the difficulties and
anomalies of the applicant's situation as a post-operative transsexual. It must
be acknowledged that the level of daily interference suffered by the
applicant in B. v. France (judgment of 25 March 1992, Series A no. 232)
has not been attained in this case and that on certain points the risk of
difficulties or embarrassment faced by the present applicant may be avoided
or minimised by the practices adopted by the authorities.
90. Nonetheless, the very essence of the Convention is respect for
human dignity and human freedom. Under Article 8 of the Convention in
particular, where the notion of personal autonomy is an important principle
underlying the interpretation of its guarantees, protection is given to the
personal sphere of each individual, including the right to establish details of
their identity as individual human beings (see, inter alia, Pretty v. the
United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić
v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be
published in ECHR 2002-...). In the twenty first century the right of
26 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
transsexuals to personal development and to physical and moral security in
the full sense enjoyed by others in society cannot be regarded as a matter of
controversy requiring the lapse of time to cast clearer light on the issues
involved. In short, the unsatisfactory situation in which post-operative
transsexuals live in an intermediate zone as not quite one gender or the other
is no longer sustainable. Domestic recognition of this evaluation may be
found in the report of the Interdepartmental Working Group and the Court
of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53).
91. The Court does not underestimate the difficulties posed or the
important repercussions which any major change in the system will
inevitably have, not only in the field of birth registration, but also in the
areas of access to records, family law, affiliation, inheritance, criminal
justice, employment, social security and insurance. However, as is made
clear by the report of the Interdepartmental Working Group, these problems
are far from insuperable, to the extent that the Working Group felt able to
propose as one of the options full legal recognition of the new gender,
subject to certain criteria and procedures. As Lord Justice Thorpe observed
in the Bellinger case, any “spectral difficulties”, particularly in the field of
family law, are both manageable and acceptable if confined to the case of
fully achieved and post-operative transsexuals. Nor is the Court convinced
by arguments that allowing the applicant to fall under the rules applicable to
women, which would also change the date of eligibility for her state
pension, would cause any injustice to others in the national insurance and
state pension systems as alleged by the Government. No concrete or
substantial hardship or detriment to the public interest has indeed been
demonstrated as likely to flow from any change to the status of transsexuals
and, as regards other possible consequences, the Court considers that society
may 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.
92. In the previous cases from the United Kingdom, this Court has since
1986 emphasised the importance of keeping the need for appropriate legal
measures under review having regard to scientific and societal
developments (see references at paragraph 73). Most recently in the
Sheffield and Horsham case in 1998, it observed that the respondent State
had not yet taken any steps to do so despite an increase in the social
acceptance of the phenomenon of transsexualism and a growing recognition
of the problems with which transsexuals are confronted (cited above,
paragraph 60). Even though it found no violation in that case, the need to
keep this area under review was expressly re-iterated. Since then, a report
has been issued in April 2000 by the Interdepartmental Working Group
which set out a survey of the current position of transsexuals in inter alia
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 27
criminal law, family and employment matters and identified various options
for reform. Nothing has effectively been done to further these proposals and
in July 2001 the Court of Appeal noted that there were no plans to do so
(see paragraphs 52-53). It may be observed that the only legislative reform
of note, applying certain non-discrimination provisions to transsexuals,
flowed from a decision of the European Court of Justice of 30 April 1996
which held that discrimination based on a change of gender was equivalent
to discrimination on grounds of sex (see paragraphs 43-45 above).
93. Having regard to the above considerations, the Court finds that the
respondent Government can no longer claim that the matter falls within
their margin of appreciation, save as regards the appropriate means of
achieving recognition of the right protected under the Convention. Since
there are no significant factors of public interest to weigh against the interest
of this individual applicant in obtaining legal recognition of her gender reassignment,
it reaches the conclusion that the fair balance that is inherent in
the Convention now tilts decisively in favour of the applicant. There has,
accordingly, been a failure to respect her right to private life in breach of
Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION
94. The applicant also claimed a violation of Article 12 of the
Convention, which provides as follows:
“Men 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.”
A. Arguments of the parties
1. The applicant
95. The applicant complained that although she currently enjoyed a full
physical relationship with a man, she and her partner could not marry
because the law treated her as a man. She argued that the Corbett v. Corbett
definition of a person's sex for the purpose of marriage had been shown no
longer to be sufficient in the recent case of Bellinger v. Bellinger and that
even if a reliance on biological criteria remained acceptable, it was a breach
of Article 12 to use only some of those criteria for determining a person's
sex and excluding those who failed to fulfil those elements.
2. The Government
28 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
96. The Government referred to the Court's previous case-law (the
above-cited Rees, Cossey and Sheffield and Horsham judgments) and
maintained that neither Article 12 nor Article 8 of the Convention required a
State to permit a transsexual to marry a person of his or her original sex.
They also pointed out that the domestic law approach had been recently
reviewed and upheld by the Court of Appeal in Bellinger v. Bellinger, the
matter now pending before the House of Lords. In their view, if any change
in this important or sensitive area were to be made, it should come from the
United Kingdom's own courts acting within the margin of appreciation
which this Court has always afforded. They also referred to the fact that any
change brought the possibility of unwanted consequences, submitting that
legal recognition would potentially invalidate existing marriages and leave
transsexuals and their partners in same-sex marriages. They emphasised the
importance of proper and careful review of any changes in this area and the
need for transitional provisions.
B. The Court's assessment
97. The Court recalls that in the cases of Rees, Cossey and Sheffield and
Horsham the inability of the transsexuals in those cases to marry a person of
the sex opposite to their re-assigned gender was not found in breach of
Article 12 of the Convention. These findings were based variously on the
reasoning that the right to marry referred to traditional marriage between
persons of opposite biological sex (the Rees judgment, p. 19, § 49), the view
that continued adoption of biological criteria in domestic law for
determining a person's sex for the purpose of marriage was encompassed
within the power of Contracting States to regulate by national law the
exercise of the right to marry and the conclusion that national laws in that
respect could not be regarded as restricting or reducing the right of a
transsexual to marry in such a way or to such an extent that the very essence
of the right was impaired (the Cossey judgment, p. 18, §§ 44-46, the
Sheffield and Horsham judgment, p. 2030, §§ 66-67). Reference was also
made to the wording of Article 12 as protecting marriage as the basis of the
family (Rees, loc. cit.).
98. Reviewing the situation in 2002, the Court observes that Article 12
secures the fundamental right of a man and woman to marry and to found a
family. The second aspect is not however a condition of the first and the
inability of any couple to conceive or parent a child cannot be regarded as
per se removing their right to enjoy the first limb of this provision.
99. The exercise of the right to marry gives rise to social, personal and
legal consequences. It is subject to the national laws of the Contracting
States but the limitations thereby introduced must not restrict or reduce the
right in such a way or to such an extent that the very essence of the right is
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 29
impaired (see the Rees judgment, p. 19, § 50; the F. v. Switzerland
judgment of 18 December 1987, Series A no. 128, § 32).
100. 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 (as held by Ormrod J.
in the case of Corbett v. Corbett, paragraph 21 above). 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 would also note that Article 9 of the recently adopted Charter of
Fundamental Rights of the European Union departs, no doubt deliberately,
from the wording of Article 12 of the Convention in removing the reference
to men and women (see paragraph 58 above).
101. The right under Article 8 to respect for private life does not
however subsume all the issues under Article 12, where conditions imposed
by national laws are accorded a specific mention. The Court has therefore
considered whether the allocation of sex in national law to that registered at
birth is a limitation impairing the very essence of the right to marry in this
case. In that regard, it finds that it is artificial to assert that post-operative
transsexuals have not been deprived of the right to marry as, according to
law, they remain able to marry a person of their former opposite sex. The
applicant in this case lives as a woman, is in a relationship with a man and
would only wish to marry a man. She has no possibility of doing so. In the
Court's view, she may therefore claim that the very essence of her right to
marry has been infringed.
102. The Court has not identified any other reason which would prevent
it from reaching this conclusion. The Government have argued that in this
sensitive area eligibility for marriage under national law should be left to the
domestic courts within the State's margin of appreciation, adverting to the
potential impact on already existing marriages in which a transsexual is a
partner. It appears however from the opinions of the majority of the Court of
Appeal judgment in Bellinger v. Bellinger that the domestic courts tend to
the view that the matter is best handled by the legislature, while the
Government have no present intention to introduce legislation (see
paragraphs 52-53).
30 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
103. 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. The
margin of appreciation cannot extend so far. While it is for the Contracting
State to determine inter alia the conditions under which a person claiming
legal recognition as a transsexual establishes that gender re-assignment has
been properly effected or under which past marriages cease to be valid and
the formalities applicable to future marriages (including, for example, the
information to be furnished to intended spouses), the Court finds no
justification for barring the transsexual from enjoying the right to marry
under any circumstances.
104. The Court concludes that there has been a breach of Article 12 of
the Convention in the present case.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
105. The applicant also claimed a violation of Article 14 of the
Convention, which provides as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status.”
106. The applicant complained that the lack of legal recognition of her
changed gender was the cause of numerous discriminatory experiences and
prejudices. She referred in particular to the fact that she could not claim her
State pension until she was 65 and to the fact that she could not claim a
“freedom pass” to give her free travel in London, a privilege which women
were allowed to enjoy from the age 60 and men from the age of 65.
107. The Government submitted that no issues arose which were
different from those addressed under Article 8 of the Convention and that
the complaints failed to disclose any discrimination contrary to the above
provision.
108. The Court considers that the lack of legal recognition of the change
of gender of a post-operative transsexual lies at the heart of the applicant's
complaints under Article 14 of the Convention. These issues have been
examined under Article 8 and resulted in the finding of a violation of that
provision. In the circumstances, the Court considers that no separate issue
arises under Article 14 of the Convention and makes no separate finding.
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 31
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
109. The applicant claimed a violation of Article 13 of the Convention,
which provides as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
110. The applicant complained that she had no effective remedy
available to her in respect of the matters complained of above.
111. The Government submitted that no arguable breach of any
Convention right arose to engage the right to a remedy under Article 13. In
any event, since 2 October 2000 when the Human Rights Act 1998 came
into force, the Convention rights could be relied on in national courts and
the applicant would now have a remedy in a national court for any breach of
a Convention right.
112. The Court reiterates that Article 13 of the Convention guarantees
the availability at the national level of a remedy to enforce the substance of
the Convention rights and freedoms in whatever form they might happen to
be secured in the domestic legal order. Its effect is to require the provision
of a domestic remedy to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief (see, amongst other
authorities, the Aksoy v. Turkey judgment of 25 September 1996, Reports
1996-VI, p. 2286, § 95).
113. Having found above that there have been violations of Articles 8
and 12 of the Convention, the applicant's complaints in this regard are
without doubt arguable for the purposes of Article 13 of the Convention.
The case-law of the Convention institutions indicates, however, that
Article 13 cannot be interpreted as requiring a remedy against the state of
domestic law, as otherwise the Court would be imposing on Contracting
States a requirement to incorporate the Convention (see the James and
Others v. the United Kingdom judgment of 21 February 1986, Series A
no. 98, p. 48, § 86). Insofar therefore as no remedy existed in domestic law
prior to 2 October 2000 when the Human Rights Act 1998 took effect, the
applicant's complaints fall foul of this principle. Following that date, it
would have been possible for the applicant to raise her complaints before
the domestic courts, which would have had a range of possible redress
available to them.
114. The Court finds in the circumstances no breach of Article 13 of the
Convention in the present case.
32 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
115. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
116. The applicant claimed pecuniary damage of a total of 38,200
pounds sterling (GBP). This represented a sum of GBP 31,200 in respect of
the pension which she had been unable to claim at age 60 and GBP 7,000 as
the estimated value of the pensioner's bus pass which she had not been
eligible to obtain. The applicant also claimed for non-pecuniary damage the
sum of GBP 40,000 in respect of distress, anxiety and humiliation.
117. The Government submitted that were the Court to find any breach
of the Convention this finding would of itself be sufficient just satisfaction
for the purposes of Article 41 of the Convention.
118. The Court recalls that there must be a clear causal connection
between the pecuniary damage claimed by the applicant and the violation of
the Convention and that this may, in the appropriate case, include
compensation in respect of loss of earnings or other sources of income (see,
amongst other authorities, the Barberà, Messegué and Jabardo v. Spain
judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58,
§§ 16-20; the Cakıcı v. Turkey judgment of 8 July 1999, Reports 1999-IV,
§ 127).
119. The Court observes that the applicant was unable to retire at age 60
as other female employees were entitled and to obtain a state pension or to
claim a bus pass for free travel. The degree of financial detriment suffered
as a result, if any, is not clear-cut however as the applicant, though perhaps
not by choice, continued to work and to enjoy a salary as a result. While it
has adverted above to the difficulties and stresses of the applicant's position
as a post-operative transsexual, it would note that over the period until 1998
similar issues were found to fall within the United Kingdom's margin of
appreciation and that no breach arose.
120. The Court has found that the situation, as it has evolved, no longer
falls within the United Kingdom's margin of appreciation. It will be for the
United Kingdom Government in due course to implement such measures as
it considers appropriate to fulfil its obligations to secure the applicant's, and
other transsexuals', right to respect for private life and right to marry in
compliance with this judgment. While there is no doubt that the applicant
has suffered distress and anxiety in the past, it is the lack of legal
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 33
recognition of the gender re-assignment of post-operative transsexuals
which lies at the heart of the complaints in this application, the latest in a
succession of cases by other applicants raising the same issues. The Court
does not find it appropriate therefore to make an award to this particular
applicant. The finding of violation, with the consequences which will ensue
for the future, may in these circumstances be regarded as constituting just
satisfaction.
B. Costs and expenses
121. The applicant claims for legal costs and expenses GBP 17,000 for
solicitors' fees and GBP 24,550 for the fees of senior and junior counsel.
Costs of travel to the Court hearing, together with accommodation and other
related expenses were claimed in the sum of GBP 2,822. This made a total
of GBP 44,372.
122. The Government submitted that the sum appeared excessive in
comparison to other cases from the United Kingdom and in particular as
regarded the amount of GBP 39,000 claimed in respect of the relatively
recent period during which the applicant's current solicitors have been
instructed which would only relate to the consolidated observations and the
hearing before the Court.
123. The Court finds that the sums claimed by the applicant for legal
costs and expenses, for which no detail has been provided by way of hours
of work and fee rates, are high having regard to the level of complexity of,
and procedures adopted in, this case. Having regard to the sums granted in
other United Kingdom cases and taking into account the sums of legal aid
paid by the Council of Europe, the Court awards for this head 39,000 euros
(EUR), together with any value-added tax that may be payable. The award
is made in euros, to be converted into pounds sterling at the date of
settlement, as the Court finds it appropriate that henceforth all just
satisfaction awards made under Article 41 of the Convention should in
principle be based on the euro as the reference currency.
C. Default interest
124. As the award is expressed in euros to be converted into the national
currency at the date of settlement, the Court considers that the default
interest rate should also reflect the choice of the euro as the reference
currency. It considers it appropriate to take as the general rule that the rate
of the default interest to be paid on outstanding amounts expressed in euro
should be based on the marginal lending rate of the European Central Bank
to which should be added three percentage points.
34 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 8 of the
Convention;
2. Holds unanimously that there has been a violation of Article 12 of the
Convention;
3. Holds unanimously that no separate issue arises under Article 14 the
Convention;
4. Holds unanimously that there has been no violation of Article 13 of the
Convention;
5. Holds unanimously that the finding of violation constitutes in itself
sufficient just satisfaction for the non-pecuniary damage sustained by the
applicant;
6. Holds unanimously that the respondent State is to pay the applicant,
within three months, EUR 39,000 (thirty nine thousand euros) in respect
of costs and expenses, together with any value-added tax that may be
chargeable, to be converted into pounds sterling at the date of
settlement;
7. Holds by fifteen votes to two that simple interest at a rate equal to the
marginal lending rate of the European Central Bank plus three
percentage points shall be payable from the expiry of the abovementioned
three months until settlement;
8. Dismisses unanimously the remainder of the applicant's claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 11 July 2002.
Luzius WILDHABER
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 35
(a) concurring opinion of Mr Fischbach;
(b) partly dissenting opinion of Mr Türmen;
(c) partly dissenting opinion of Mrs Greve.
L.W.
P.J.M
36 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
CONCURRING OPINION OF JUDGE FISCHBACH
Even though I voted with the majority of the Court as concerns point 7 of
the operative part of the judgment, I would have preferred a fixed rate of
default interest to have been set.
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 37
PARTLY DISSENTING OPINION OF JUDGE TÜRMEN
As concerns default interest, I would have preferred, at point 7 of the
operative part of the judgment, for a fixed rate to have been set.
38 CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE GREVE
In the present case I do not share the views of the majority of my
colleagues concerning the default interest to be paid.
There is agreement among the judges that the euro is a suitable reference
currency for all awards under Article 41. The Court wants such awards paid
promptly, and the default interest rate is intended to be an incentive for
prompt payment without it having a punitive character. So far I fully agree.
Under the Court's new policy awards are made in the euro to be
converted into national currencies at the day of settlement. This means that
in the present case the applicant will suffer a loss in the value of her award
if her national currency, the pound sterling, continues to gain strength vis-àvis
the euro. Conversion into national currency first at the day of settlement
in contradistinction to a conversion at the day of the judgement will favour
applicants from the euro countries and applicants that have national
currencies on a par with the euro, or weaker. All other applicants will suffer
a loss under the changed policy. This, in my opinion, conflicts with the
provisions of Article 14 in combination with Article 41. Moreover, it
conflicts with the Court's desire that the awards shall to be as fair as
possible, that is to maintain the value of the award as accurately as possible.
The latter objective is also the rationale for changing the Court's previous
practice of using the default interest rate in each member State as basis for
the Court's decision in individual cases.
The majority is attempting to secure that awards become fair by using
varying interest rates as they evolve throughout the period of default. The
marginal lending rate used by the European Central Bank (ECB) when
lending money overnight to commercial banks plus three percentage points
will be used. This will in the present case, as in many other cases, give the
applicant a lower default interest rate than the rate previously used by the
Court, the national default interest rate.
The marginal lending rate is interest paid by banks to the ECB, when
they need quick emergency loans. That is, it is a rate which forms the
ceiling for the commercial money market; and of little, if any, practical
interest to most of the applicants in the Court. The default interest rates
provided for in each of the States parties to the Convention for their part do
reflect the situation in the national money markets regarding the rates to be
paid by applicants who may have to opt for borrowing money while
awaiting payment of an award of just satisfaction. For this reason national
default interest rates compensate the individuals in a manner not secured by
the new default interest rate opted for by the Court's majority.
Furthermore, I believe that an applicant receiving an award ought to be
able to know herself the applicable default interest rate. The marginal
lending rate used by the ECB when lending money overnight to commercial
banks is not easily available to all applicants in Europe. The rate has been
CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT 39
PARTLY DISSENTING OPINION OF JUDGE GREVE
stable for quite some time but if need be it could be set on a weekly if not
even daily basis. Although it will be for the State to prove that it has
actually paid the applicant in compliance with the judgment, and for the
Committee of Ministers in the Council of Europe to check that this is
correct, I find this to be an added bureaucratic procedure which makes it
more difficult for applicants to keep track themselves. At all events the basis
on which the Court's majority sets the new default interest rate is removed
from the actual rate which an applicant, who needs to borrow money on an
interim basis while awaiting payment of the award in a judgement, will have
to pay. This is not compensated by the new varying interest rate, and this
rather abstract search for fairness does not, in my opinion, merit a
potentially bureaucratic new procedure.