CASE OF REES v. THE UNITED KINGDOM
No violation of Art. 8;No violation of Art. 12
C. Russo
11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England. 12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics. 13. In September 1971, the applicant - who will henceforth be referred to in the masculine - changed his name to Brendan Mark Rees and subsequently, in September 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix "Mr." was, however, at that time denied to him. 14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service. 15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member’s Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail. 16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the Register". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong’s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual’s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant’s psychological sex was male, he should be assigned male. On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant’s psychological sex was not decisive and that, "in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)", he was "unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded". No further evidence in support of the applicant’s request was subsequently submitted. 17. The applicant considers himself a man and is socially accepted as such. Except for the birth certificate, all official documents today refer to him by his new name and the prefix "Mr.", where such prefix is used. The prefix was added to his name in his passport in 1984. 18. In the United Kingdom sexual reassignment operations are permitted without legal formalities. The operations and treatment may, as in the case of Mr. Rees, be carried out under the National Health Service. 19. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury’s Laws of England, 4th ed., vol. 35, para. 1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes, as did Mr. Rees, a declaration in the form of a "deed poll" which may be enrolled with the Central Office of the Supreme Court. The new names are valid for purposes of legal identification (see Halsbury’s Laws of England, loc. cit., para. 1174) and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll. 20. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms." or "Miss", as appropriate, before his or her adopted names. 21. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"). The entry into force of this Act entailed no material change to the law in force in 1942, the date of the applicant’s birth. The 1953 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. The particulars to be entered are prescribed in regulations made under the 1953 Act. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act. The particulars so prescribed are the name and surname, sex, date of birth and place of birth of the individual. An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like. 22. The 1953 Act provides for the correction of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child and re-registration of a birth is permitted where the child has been legitimated. In addition, under the Adoption Act 1958, where a child is adopted, the register of births is to be marked with the word "adopted"; the adoption is also registered in the Adopted Children Register and a short certificate of birth may be obtained which contains no reference to parentage or adoption. 23. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person’s "psychological sex" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, 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. 24. The birth registers and the indexes of all the entries are public. However, the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the Registration District. 25. The law does not require that the birth certificate be produced for any particular purpose, although it may in practice be requested by certain institutions and employers. In particular, a birth certificate has in general to accompany a first application for a passport, although not for its renewal or replacement. A birth certificate is also generally (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government. 26. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female. 27. According to the decision of the High Court in Corbett v. Corbett (1971) Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person’s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced. 28. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he is guilty of an offence under Section 3 (1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act. 29. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage. The applicant has drawn the Court’s attention to the following cases. In one case concerning prostitution, a male to female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of Section 30 of the Sexual Offences Act 1956 and Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others 1983, [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male to female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second he had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female to male transsexual, who had not undergone any sex change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd. [1977] Industrial Relations Law Reports p. 121).