CASE OF COSSEY v. THE UNITED KINGDOM
No violation of Art. 8;No violation of Art. 12
C. Russo;N. Valticos;R. Pekkanen
9. The applicant, who is a British citizen, was born in 1954 and registered in the birth register as a male, under the male Christian names of Barry Kenneth. 10. At the age of 13 the applicant realised that she was unlike other boys and, by the age of 15 or 16, she understood that, although she had male external genitalia, she was psychologically of the female sex. In July 1972 she abandoned her male Christian names and assumed the female Christian name of Caroline, a change which she confirmed by deed poll (see paragraph 16 below) in March 1973. Since July 1972 she has been known under that name for all purposes, has dressed as a woman and has adopted a female role. 11. In December 1974 the applicant, who had previously taken female hormones and had had an operation for breast augmentation involving implants, underwent gender reassignment surgery in a London hospital, to render the external anatomy nearer that of the female gender. A medical report dated 8 February 1984 describes Miss Cossey as a pleasant young woman, states that she has lived a full life as a female, both psychologically and physically, since the surgery and records that a genital examination showed her to have the external genitalia and vagina of a female. As a post-operative female transsexual, she is able to have sexual intercourse with a man. 12. In 1976 the applicant was issued with a United Kingdom passport as a female (see paragraphs 16-17 below). From about 1979 to 1986 she was a successful fashion model, featuring regularly in newspapers, magazines and advertisements. 13. In 1983 Miss Cossey and Mr L., an Italian national whom she had known for some fourteen months, wished to marry each other. By letter of 22 August 1983, the Registrar General informed the applicant that such a marriage would be void as a matter of English law, because it would classify her as male notwithstanding her anatomical and psychological status. Her Member of Parliament advised her in a letter of 30 August 1983 that a change in the law would be required to enable her to marry. A reply on behalf of the Registrar General, dated 18 January 1984, to a further enquiry by the applicant stated that she could not be granted a birth certificate showing her sex as female, since such a certificate records details as at the date of birth (see paragraphs 18-20 below). In 1985 - after the date of her application to the Commission - Miss Cossey and Mr L. ceased to be engaged to be married, though they remained good friends. 14. On 21 May 1989 the applicant purported to marry a Mr X, at a ceremony conducted at a London synagogue. However, their relationship terminated on 11 June of the same year. Following a petition filed by Miss Cossey, who had been advised that this was her only means of obtaining financial relief, the marriage was, by decree nisi made by the High Court on 17 January 1990, pronounced to have been by law void by reason of the parties not being respectively male and female (see paragraphs 23-24 below). That decree was made final on 13 March 1990. 15. In the United Kingdom gender reassignment operations are permitted without legal formalities. The operations and treatment may be carried out under the National Health Service. 16. 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, paras. 1173-1176). 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 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 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. 17. 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. 18. 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"), which 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, that is the name and surname, sex, date of birth and place of birth of the individual. It omits, notably, any particulars relating to parentage or adoption contained in the register. An entry in a birth register and the certificate derived therefrom are records of facts at the time of 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. 19. The 1953 Act provides for the correction, by the registrar or superintendent registrar, 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. Statutory provision is made for the re-registration of the birth of a child who has been legitimated by the subsequent marriage of his parents. Thereafter birth certificates supplied concerning him take the form of a certified copy of the entry of re-registration; no copy of the previous entry may be given except under the direction of the Registrar General. Under the Adoption Act 1976, where a child is adopted, an entry (not including the names of the natural parents) will be made in a separate register known as the Adopted Children Register. In addition, the original entry in the register of births will be marked with the word "Adopted". The Registrar General keeps books to make traceable the connection between the entries in the two registers but these books are not accessible to the public, save on application by the adopted person himself or by order of a court. It is open to anyone to obtain a certified copy of the entry in the Adopted Children Register or a short certificate which contains no particulars relating to parentage. 20. 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. 21. Indexes are maintained of all entries in birth registers. It is open to any member of the public to search the indexes (but not the registers themselves) and obtain a certified copy of any such entry. However, identification of the index reference requires 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. 22. The law does not require that the birth certificate be produced for any particular purpose, although a certificate may in practice be requested by certain institutions and employers. A birth certificate has in general to accompany a first application for a passport, but is not needed for its renewal or replacement or for an application for a driving licence. A birth certificate is also usually (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. In the case of a religious marriage ceremony, the celebrant is not obliged nor is there any statutory power under English law to ask the parties to produce copies of their birth certificates (see also paragraph 25 below). 23. 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. Under section 12 of the same Act, a marriage which is not consummated owing to the incapacity or wilful refusal of one of the parties to consummate it, is voidable. 24. 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, and without regard to any operative intervention. 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. 25. 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 or she 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. 26. 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. 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] 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 she 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 121).