CASE OF B. v. FRANCE
Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 8;Not necessary to examine Art. 3;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;John Freeland;N. Valticos;R. Pekkanen
9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine. 10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment. She completed her military service in Algeria, as a man, and her behaviour at the time was noticeably homosexual. After spending five years teaching reading and writing to young persons from Kabylia, she left Algeria in 1963 and settled in Paris, working in a cabaret under an assumed name. 11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below). 12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused. 13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court "to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette". 14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons: "... Whereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations; Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes; Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals; ..." 15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia: "... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development. ..." 16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows: "This appeal complains that the challenged judgment dismissed the appellant’s application for rectification of civil status, On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘irreversible necessity, independent of the individual, compels this’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development’ ...; Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code. ..." The applicant’s supplementary pleadings opened with the following "introduction": "The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status. The solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual. It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society." It also included an argument relating to the Convention: "VI. In the European legal system this argument [accepting the transsexual’s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point. The European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully Belgium had failed to observe the respect due to the applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an ambiguous being, an appearance’ ... This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual. France has expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ..." 17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons: "Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal; Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation; Whereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld; ..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87) 18. No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged. It has been possible for surgical operations to take place in France since 1979 subject to medical control; before then they were carried out abroad. There is no objection by the National Council of the Medical Association, and the costs of some of these operations are borne by the social security service. Persons who commit intentional attacks on the physical integrity of a human being are criminally liable, as are their accomplices, but although prosecutions are possible, they are exceptional in cases of transsexualism. 19. Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate: acknowledgement of an illegitimate child (Article 62 of the Civil Code), adoption (Article 354), marriage (Article 75), divorce (Article 1082 of the new Code of Civil Procedure), and death (Article 79 of the Civil Code). Civil status registrars are asked to leave sufficient space for these purposes (section 3 of Decree no. 62-921 of 3 August 1962 amending various regulations relating to civil status). 20. Under the first paragraph of section 8 of the Decree of 3 August 1962, "Civil status registers dating less than one hundred years back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République". 21. However, "the public nature of civil status documents shall be ensured by the issue of full copies or extracts" (same section, second paragraph). Full copies of a birth certificate can be issued only to the person concerned, his ascendants or descendants, his spouse, his legal representative, the procureur de la République or any person authorised by him (section 9, first and third paragraphs). However, any person can obtain an extract of another person’s birth certificate (section 10). The information which appears on an extract of birth certificate is subject to certain restrictions. Thus in the case of legal adoption, such an extract must not include any reference to the adoption order or the family of origin (section 12). In addition, the Decree of 26 September 1953 on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies, services and offices or by undertakings, organisations and health insurance institutions under State supervision, extracts of civil status documents shall be replaced by production of a civil status certificate. Such a certificate does not indicate sex. 22. The following provisions govern the rectification of civil status documents: "The birth certificate shall state the day, time and place of birth, the sex of the child and the forenames given, the forenames, surnames, ages, occupations and addresses of the father and mother and, if appropriate, those of the person reporting the birth. If either or both of the father and mother of an illegitimate child are not named to the civil status registrar, no mention relating thereto shall be made in the registers. If the certificate drawn up relates to an illegitimate child, the registrar shall within one month give notice thereof to the judge of the tribunal d’instance for the district of the birth. The forenames of a child appearing on his birth certificate may in the case of a legitimate interest (intérêt légitime) be amended by an order of the tribunal de grande instance made on application by the child or, during his minority, on application by his legal representative. The order shall be made and published subject to the conditions provided for in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered." "Rectification of civil status documents shall be ordered by the president of the court. Rectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court. An application for rectification may be brought by any person concerned or by the procureur de la République; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place. The procureur de la République having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents; for this purpose he shall give the relevant instructions directly to those having custody of the registers." "No citizen may bear a surname or forename other than those stated in his birth certificate; those who have abandoned them shall be obliged to resume them." 23. A large number of French tribunaux de grande instance (T.G.I.) and courts of appeal (C.A.) have granted applications for amendment of entries in civil status registers relating to sex and forenames (see inter alia T.G.I. Amiens, 4.3.1981 ; Angoulême, 18.1.1984; Créteil, 22.10.1981; Lyon, 31.1.1986; Montpellier, 6.5.1985; Nanterre, 16.10.1980 and 21.4.1983; Niort, 5.1.1983; Paris, 24.11.1981, 16.11.1982, 9.7.1985 and 30.11.1988; Périgueux, 10.9.1991; Saint-Etienne, 11.7.1979; Strasbourg, 20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A. Agen, 2.2.1983; Colmar, 15.5.1991 and 30.10.1991; Nîmes, 2.7.1984; Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984) or relating to forenames only (T.G.I. Lyon, 9.11.1990; Metz, 6.6.1991; Paris, 30.5.1990; Saint-Etienne, 26.3.1980; C.A. Bordeaux, 18.3.1991). Some of these decisions specified that the amendment of civil status should not have retroactive effect, in order not to affect earlier legal acts or situations. The great majority of them have become final and binding, the prosecutor’s office not having exercised its right to appeal. Contrary rulings have, however, been given by other courts (see inter alia T.G.I. Bobigny, 18.9.1990; Paris, 7.12.1982; C.A. Bordeaux, 13.6.1972 and 5.3.1987; Lyon, 19.11.1987; Nancy, 5.4.1973, 13.4.1977 and 22.4.1982; Nîmes, 10.3.1986, 7.6.1986, 7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988). 24. The Court of Cassation has had occasion to give decisions on this point some twelve times from 1975 to 31 May 1990. In two judgments of 16 December 1975 (Bull. civ. I, no. 374, p. 312, and no. 376, p. 313; Recueil Dalloz Sirey (D.S.) 1976, p. 397, note Lindon; Juris-Classeur périodique (J.C.P.) 1976, II, 18503, note Penneau) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone (first judgment), but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war (second judgment). On 30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984, p. 165, note Edelman; J.C.P. 1984, II, 20222, submissions of Mr Advocate General Sadon) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report, as "the Court of Appeal [had] found that despite the operations undergone by her, Nadine V. was not of male sex". Two further judgments were given by the Court of Cassation on 3 and 31 March 1987 (Bull. civ. I, no. 79, p. 59, and no. 116, p. 87; D.S. 1987, p. 445, note Jourdain). The latter judgment relates to the present case (see paragraph 17 above). In the former, the court had to rule on the position of a transsexual who was married and the father of a child. While acknowledging that genetically he was still a man, the Nîmes Court of Appeal had on 2 July 1984 ordered rectification of his birth certificate and change of forenames. On appeal by the procureur’s office the Court of Cassation quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned. On 7 March 1988 (Bull. civ. I, no. 176, p. 122), 7 June 1988 (Gazette du Palais (G.P.) 7-8 June 1989, jurisprudence, p. 4) and 10 May 1989 (Bull. civ. I, no. 189, p. 125) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only, on the grounds that the Court of Appeal had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on. On 21 May 1990 the Court of Cassation dealt in the same way with four appeals (J.C.P. 1990, II, 21588, with report by Mr Massip and submissions of Mrs Advocate General Flipo). It stated in particular that: "... transsexualism, even where medically acknowledged, cannot be regarded as a true change of sex, as the transsexual, although having lost certain characteristics of his original sex, has not thereby acquired those of the opposite sex; ..." In the fourth of these appeals the Court of Appeal was criticised for "not having investigated further to see if, in default of rectification of sex, at the very least the substitution of forenames requested ought to have been allowed". The Court of Cassation’s response was that the applicant had "before the Court of Appeal requested a change of forenames only as a consequence of the change of sex she was claiming" and that she had "not shown that she had a legitimate interest within the meaning of the third paragraph of Article 57 of the Civil Code in her forenames being amended even if the change of sex were not allowed". The ground of appeal was therefore rejected, as it had not been argued before the court below. 25. As a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc. However, the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames. This also applies to the "Community" style passports which are gradually replacing "national" passports. 26. The National Institute for Statistics and Economic Studies (Institut national de la statistique et des études économiques, INSEE) allocates everyone a number. The first digit of the number indicates sex (1 for male sex, 2 for female sex). The number appears in the national identification register of natural persons; the social security bodies use it with additional digits for each person insured. The right to make use of this number is governed by Law no. 78-17 of 6 January 1978 on data processing, files and civil liberties. Under section 8 of this Law access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the Conseil d’Etat issued after consultation with the National Commission on Data Processing and Civil Liberties (Commission nationale de l’informatique et des libertés, CNIL). Decree no. 82-103 of 22 January 1982 relating to the said register provides that "with the exception of the cases specifically provided for by law, the register may not be used for the purpose of tracing individuals" (section 7). In an opinion of June 1981 the CNIL defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it. Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education. On the other hand, it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of the Banque de France. A decree of 11 April 1985 likewise authorised social security institutions to make use of the registration number. The CNIL has also, when various rules were being drawn up relating to employees’ pay, allowed the number to be used as a means of correspondence with social security bodies. 27. There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix "Madame", "Mademoiselle" or "Monsieur" on cheques, but in practice they are usually included. However, anyone may require that his surname and forenames only be used. 28. Invoices must include the surnames of the persons they concern but need not indicate their sex (section 3 of Order no. 86-1243 of 1 December 1986).