CASE OF VAN OOSTERWIJCK v. BELGIUM
Preliminary objection allowed (non-exhaustion of domestic remedies)
7. When she lodged her application, Danielle Van Oosterwijck had been working since 1963 in the Secretariat of the Commission of the European Communities; she was at the same time studying at the Free University of Brussels and, in June 1979, obtained a degree in law (licence en droit). Subsequently, she was enrolled as a first-year pupil at the Brussels Bar; she is entered on the roll of pupils as "Van Oosterwijck D.". 8. At birth, on 23 December 1944, the applicant possessed all the physical and biological characteristics of a child of the female sex and she was entered on the birth register of the Uccle district (Brussels) as the daughter of J. Van Oosterwijck, with the forenames Danielle, Juliette, Laure, Colette. However, according to her, from the age of five she became conscious of a dual personality: although physically female she felt herself psychologically of the male sex. After going through a period of depression on this account, she attempted suicide in 1962 and had to be treated in hospital (see paragraph 12 of the Commission’s report). 9. From 1966 onwards, the applicant - who will henceforth be referred to in the masculine, the male sex being the one assumed by Danielle Van Oosterwijck for social purposes at the time the application was lodged with the Commission - sought a solution to his problem by having a "sex-change" carried out on his body. In 1969, two specialists, Doctor Slosse and Doctor Dumont, respectively a neurologist and endocrinologist, found that the symptoms shown by the applicant unquestionably indicated transsexualism. In addition to having before them the report of a Belgian psychiatrist, they had also consulted a British psychiatrist, Doctor Randell. Whilst the doctors considered the use of psychotherapy ineffective in this field, they concluded, in the light of American, English and Danish research, that surgical treatment offered excellent prospects of success. They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted. Accordingly, they decided to apply hormone therapy, followed by surgery. 10. On being advised of the purposes, methods and effects of the treatment, the applicant stated his readiness to accept the risks. He therefore underwent hormone therapy which, after a few months led to appearance of the secondary sexual characteristics of a male, such as hair growth and change of voice. In July and December 1970 in Brussels, two surgeons, Mr. Fardeau and Mr. Longrée, successfully performed on him two operations of sexual conversion (bilateral mammectomy; hysterectomy-bilateral ovariectomy). Mr. Fardeau had previously sought the consent of the Medical Association: on 8 May 1970, the Secretary of the Council of the Brabant Province Branch of the Association had sent him the following reply: "As the problem you raise is a medical one, you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation." Subsequently, the applicant received a phalloplasty carried out in ten stages, from October 1971 to October 1973, by Professor Evans, a surgeon at Queen Mary’s Hospital in London. 11. The treatment has without any doubt substituted an outwardly male physique for a female physique, but the chromosomes remain those of the female sex. Part of the cost was borne by the Medical Service of the Commission of the European Communities; the Communities’ administrative department issued the applicant with an employment card made out in the name of Mr. D. Van Oosterwijck. 12. On 18 October 1973, the applicant filed a "petition for rectification of a civil states certificate ("requête en rectification d’un acte de l’état civil"): he requested the Brussels Court of First Instance to direct that his birth certificate should henceforth read "a child of the male sex with the forenames Daniel, Julien, Laurent, born on ..., son of ...". He relied, inter alia, on a decision delivered on 20 October 1965 by the Ghent Court of First Instance, which had adopted a similar solution in another case (see paragraph 18 below). The ministère public (Attorney-General’s department) submitted on 13 November 1973 that the petition should be disallowed: it was argued that D. Van Oosterwijck had not established, as he was obliged to do under the legislation in force, that the initial record of his sex was tainted by an error, whereas the case decided in Ghent did concern such an error. The Brussels Court dismissed the petition on 30 January 1974 on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate; indeed, the petitioner’s submissions showed just the opposite since he did not claim to have been "fundamentally" a man from the outset. 13. D. Van Oosterwijck appealed to the Brussels Court of Appeal on 14 February 1974. He contended that a transsexual has by definition the sex opposite to that which is apparent at the time of his birth and criticised the Court of First Instance for disregarding the concept of transsexualism. According to him, the rectification being claimed was therefore a pressing legal necessity. He also requested the Court of Appeal to be guided by equity, humanity and the interests both of society and of himself in arriving at its decision. He maintained that, on this basis, the Court would accept that he was a man who no longer possessed the characteristics of a woman; that it was inconceivable not to recognise the consequences of transsexualism where it had been duly established; that the decision under appeal led to results that were absurd and harmful to the social order, for example the possession of patently incorrect identity documents. The parquet (Attorney-General’s department) submitted that the appeal should be dismissed, relying on the following arguments. There was controversy in medical circles regarding the syndrome known as transsexualism. Moreover, the assertion that D. Van Oosterwijck had always belonged "fundamentally" to the male sex was not corroborated by the facts; the Registrar of Births had made no mistake in recording what outward appearances revealed. In point of fact, some lawyers questioned whether, in the absence of an error, the only conceivable legal remedy did not consist of an "action d’état préalable" (a "preliminary action pertaining to personal status"); their views probably had force, but in the present proceedings the issue had not been put in that manner. Admittedly, the appellant had an affliction which caused him considerable suffering in human and personal terms; if this were the only aspect to be considered, it might perhaps have been possible to grant his petition. From the point of view of public policy (ordre public), on the other hand, the petition prompted the most serious reservation: its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects, being irreversible, might subsequently be regretted by the patients themselves. Finally, the perpetual calling in question of certain situations, particularly in the realm of personal status, conflicted with the requirements of a rational organisation of the community: it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships. The Brussels Court of Appeal dismissed D. Van Oosterwijck’s appeal on 7 May 1974. It held that, before it could be rectified, a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed "account to be taken of artificial changes to and individual’s anatomy", such as those in the present case, "even if they correspond[ed] to his deep-seated psychical tendencies". However, "neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism" were capable of evidencing the existence, from the very outset, of "physical characteristics of the male sex or even (of) transsexual tendencies". 14. D. Van Oosterwijck decided not to take his case to the Court of Cassation. According to Appendix II to the Commission’s report, he had previously consulted "a number of qualified persons". In addition, Mr. Ansiaux, a lawyer practising before the Court of Cassation, advised the applicant after the event, on 20 September 1976 and in 1977, that in his view such an appeal would have had no prospects of success (see the verbatim record of the hearings of 24 April 1980 before the Court and paragraph 37 below). 15. The applicant has not, until now, sought authorisation to change his forenames, authorisation which may be granted by the Government in pursuance of an Act of 2 July 1974 supplementing the Act of 11 Germinal, Year XI - 1 April 1803 (see paragraph 20 below). He has an identity card bearing his female forenames, but with a photograph corresponding to his present outward appearance. 16. In Belgium, there is no legislation dealing with transsexualism. In the only case of the kind which appears to have given rise to a criminal prosecution, the Brussels Court of First Instance held, on 27 September 1969, that sex-change treatment and operations did not of themselves constitute criminal offences. They depended on the free decision of doctors and surgeons, acting according to their conscience and with the patients’ consent. 17. The drawing up of civil status certificates, including birth certificates, is regulated by the Civil Code. Under Article 55, declarations of birth have to be made before the Registrar of Births, Marriages and Deaths for the district. The certificate is drawn up immediately in the presence of two witnesses and states, amongst other things, the child’s sex and forenames (Articles 56 and 57). Rectification of civil status certificates is governed by Articles 1383 to 1385 of the Judicial Code. The person concerned has to file a petition with the Court of First Instance (Article 1383). The President of the Chamber designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge-rapporteur; the petitioner is invited to appear at a hearing in order to present his case (Article 1384). The operatives provisions of any judgment ordering rectification are transmitted to the Registrar of Births, Marriages and Deaths who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended; thereafter, the certificate will only be issued bearing the rectifications ordered (Article 1385). The Government referred the Court to a judgment dealing with the construction of these provisions: in the case of a couple who had obtained a judicial separation but later resumed co-habitation, the Verviers Court of First Instance held on 22 September 1969 that "rectifying a civil status certificate" involves making thereto "such additions, deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns", including the situation where "a certificate, though properly prepared in the first place, no longer corresponds to the true state of affairs". 18. Several Belgian courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex-change treatment in circumstances varying somewhat from one case to another. The Courts of First Instance of Charleroi (8 June 1973) and Malines (17 June 1975) dismissed the actions, whereas that of Ghent (20 October 1965) upheld the petition. Another case also resulted in a favourable decision for the petitioner, although the person concerned, unlike D. Van Oosterwijck, had not received a phalloplasty (Ghent Court of First Instance, 24 April 1978). The Court of Cassation has never been called on to consider the issue. 19. According to the Government, any civil status certificate may also be modified so as to coincide with the person’s current situation by means of an action d’état (an action pertaining to personal status). This "bringing into conformity" only has effect as regards the future. Up to the present time, apparently no one has instituted such an action with a view to obtaining recognition of a new sexual identity. 20. Since 23 August 1974, the date on which the above-mentioned Act of 2 July 1974 came into force (see paragraph 15 above), any person who has grounds for changing his forenames may apply to the government authorities setting out his reasons (section 4). If the application is allowed, the government authorities grant leave for the change by Royal Decree; on request by the person concerned, the Registrar of Births, Marriage and Deaths will then enter particulars of the Royal Decree on his registers and endorse them in the margin of the birth certificate. Any short form birth certificate subsequently issued must state the new forenames and not the former ones. At the present time, at last seven transsexuals have taken advantage of this Act, implementation of which in a given case has no legal bearing on the person’s sex. 21. The short-form certificates of civil status which third parties may procure do not state the descent or sex of the persons concerned (Article 45 par. 1, first sub-paragraph, of the Civil Code), but only their place and date of birth, family name and forenames. On the other hand, certified copies of the full certificate may be obtained by the individual himself, his spouse or surviving spouse, his legal representative, his ascendants, descendants or rightful heirs, the public authorities and persons having a family, scientific or other legitimate interest (Article 45 par. 1, second sub-paragraph). Identity cards, passports and driving licences do not specify the sex of the holder.