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CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM (Application no. 28957/95)

JUDGMENT

STRASBOURG 11 July 2002

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

INTRODUCTION 1. This case originated in an application against the United Kingdom lodged with the European Commission of Human Rights on 5 June 1995 by Ms Christine Goodwin. The applicant alleged violations of Articles 8, 12, 13 and 14 of the European Convention of Human Rights in respect of the legal status of transsexuals in the U.K., particularly with reference to their employment, social security, pensions and marriage. A hearing in this case took place in public in Strasburg on 20 March 2002. 2. The European Court of Human Rights, sitting as grand chamber, following private deliberation on 20 March and 3 July 2002, delivers the following judgment;

THE FACTS 3. These proceedings concern the applicant, a post-operative male to female transsexual born in 1937 as a United Kingdom citizen. In the mid-1960’s, the applicant was diagnosed as a transsexual and began treatment in 1985, including hormone therapy, grooming classes and voice training. Following a procedure to shorten her vocal chords, Goodwin underwent gender re-assignment surgery in 1990, as funded by NHS. 4. The applicant claims instances of sexual harassment in her workplace but was unsuccessful in a claim to the Industrial Tribunal, arguing that this is due to the fact that she was still viewed in law to be a man. This decision was not challenged to the Employment Appeals Tribunal. Goodwin was subsequently dismissed from her employment, alleging that this was due to the fact she is a transsexual. 5. When commencing work with a new employer, the applicant was required to provide her National Insurance Number. She alleged that the fact that she keeps the same NI Number

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

from before her re-assignment surgery, her new employer would be able to trace her details and thus her previous identity. She argues that this has led to issues in her new employment. 6. The applicant was informed that she would be ineligible for a State pension at the age of entitlement for women in the U.K, i.e. 60, but instead would be eligible at the age of entitlement for men, i.e. 65. Following an undertaking with the DSS Contribution Agency to directly pay the national insurance contributions which would otherwise be deducted by her employer, the DSS Contribution Agency issued Goodwin with a Form CF 384 Age Exemption Certificate. Her file was further marked as “sensitive,” requiring her to make special appointments for all enquiries. She continues to receive letters from DSS addressed to her male name and her sex is still stated as male for DSS matters. 7. A number of other problematic issues have arisen for the applicant, such as remaining obliged to pay the higher care insurance rate as applicable to men. She has noted that she often must chose between revealing her birth certificate and thus revealing her identity, or foregoing advantages which require the presentation of her birth certificate. The applicant has noted a fear to report any criminal activity to the police as to do so may require her to reveal her identity.

THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 8. The applicant claims a violation of Article 8 of the Convention, which states: 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

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.

The Applicant 9. The applicant makes the argument that the lack of legal recognition of her gender has led to multiple discriminatory processes in her everyday life including the special procedures applied in respect of her NI contributions, the discrimination faced in the workplace, and the failure to refer the her by her female name on identifying documents. The applicant further argues a real danger exists of her current employer tracing her NI number back to her previous identity, and that the refusal of her entitlement to a State pension at the age of 60 due to her gender was a violation of Article 8. 10. The applicant makes the argument that the scientific and societal developments in regard to the rights of transsexuals should have been considered by the U.K. She refers to the increasing social acceptance of such individuals in the press and to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of Italy and Article 29 of the Civil Code of Turkey as amended by Law no. 3444.

The Government 11. The Government maintained that the lack of recognition of the applicant’s new gender identity for legal purposes in the U.K. did not constitute a violation of article 8, with respect

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

to the margin of appreciation afforded by the Court to the member states in interpreting the Convention. Further, although there had been scientific advances in this area, there was no sufficiently broad consensus between the member states of the Council of Europe. 12. The Government submitted that a fair balance had been struck between the rights of Goodwin and the general interest of the public, with reference to the specific difficulties faced by the applicant such as the lack of personal information associated with a NI number, the issuance of an Age Exemption Certificate and the availability under Criminal Law for the applicant to bring claims of harassment at work. 13. The Government also noted that under the European Community Law, it would constitute favourable treatment to allow the applicant to obtain a State retirement pension at the age of 60.

The Court’s Assessment 14. The case at hand illustrates the importance of the positive obligations which arise from Article 8 of the Convention. In deciding whether a violation of article 8 has taken place, the Court must answer two questions. Firstly, has there been an interference with article 8? In answering this question, it must be established whether the State has taken actions which fail to respect private life, or if the State has failed to take positive action to provide the necessary respect for private life. Further, if an interference has been established, is this interference justified in terms of Article 8(2)? The Court will apply these questions to the applicant’s case in order to reach a decision. 15. Private life is a broad concept without an exhaustive definition but must develop with society in light of the evolutive nature of the Convention. This Court indicated in the case of X and Y v the Netherlands that Article 8 imposes a positive obligation on contracting States

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

to secure their citizens the right to respect for their physical and psychological integrity. The State, in continually referring to the applicant by her previous male name and classifying her as a man under the State pension system undermines her integrity, both physically and psychologically. This obligation may also require States to adopt specific provisions to effective and accessible means of protecting the right to private life, which the State failed to implement in the immediate case. 16. It is necessary to discuss the previous cases which have come before this Court which regarded the rights of transsexuals under the Convention in the United Kingdom, where a violation of article 8 has not been found. In Rees v. the United Kingdom the Court held that there was no violation as the changes requested by the applicant to his legal status would have fundamentally altered the register of birth system and thus would affect the entire population significantly. In Cossey v. the United Kingdom the Court reiterated that making changes to the birth registrar would be inappropriate and held that respect for the applicant’s private life did not impose a positive obligation on the United Kingdom in this regard. In both X, Y and Z v. the United Kingdom and Sheffield and Horsham v. the United Kingdom, the Court was not persuaded to depart from the Rees and Cossey judgments and noted that “transsexualism continues to raise complex scientific, legal, moral and social issues in respect of which there is no generally shared approach among the Contracting States.”1 17. The Court did conclude in B. v. France that there had been a violation of Article 8 in a case concerning the recognition of transsexuals. It was observed that in France many official documents revealed “a discrepancy between [the] legal sex and [the] apparent sex of a transsexual” which also appeared on social-security documents and payslips, similar to the situation at hand. The Court accordingly held that the State’s actions had placed the applicant “in a daily situation which was not compatible with the respect due to her private life”. 1 Sheffield and Horsham v The United Kingdom: ECHR 30 Jul 1998 at 58

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

However, the system in France is significantly different to that in the U.K. and would not require such a major change nor would it impact the entire population to such an extent. 18. The Court has noted the importance of viewing this case in light of present-day conditions and changing societal acceptance of transsexuals since the above decisions were made. While conscious of the severity of the daily issues facing transsexuals, decisions made by the Court must be attributable to a preceding body of law. This Court is not formally obliged to follow its previous judgments; however, precedent is necessary to ensure the law is applied equally, ensure certainty and to provide fair notice and legitimate expectations for applicants. Similarly, following precedent will allow contracting States to accurately implement the articles of the Convention. 19. The applicant argues multiple circumstances as outlined above in which she is referred to as a male, despite undergoing gender reassignment surgery and living as a woman. However, the applicant has been able to obtain identification documents such as a passport and driver’s license showing her chosen names and sexual identity. She has also been issued with a new NI card including changed name and address, and the NI number does not contain any encoded reference to her sex. Further, an employer has no lawful means of obtaining information about the applicant’s previous sexual identity from the DSS. The argument that her previous identity would be revealed at the age of 60 when her employer would no longer be required to make NI contribution deductions from her pay has already been resolved with the issuance of an Age Exemption Certificate on Form CF384. 20. Regarding the impossibility of the applicant obtaining a State pension at the age of 60, to do so would constitute favourable treatment unfair to the general public.

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

21. The applicant’s accusations of mistreatment and harassment at the workplace could be dealt with under the criminal law and thus adequate protection was available under domestic law. 22. For the reasons outlined, the Court finds in the circumstances no breach of Article 8 in the present case.

II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 23. The applicant 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.”

The Applicant 24. The applicant complained that she could not marry her male partner as she is still legally as male.

The Government 25. The Government responded by relying on previous case law as outlined above such as Rees and Cossey which maintained that a State is not required to allow a transsexual person to marry someone of their original gender. They referred to the margin of appreciation afforded to the United Kingdom’s courts, identifying such courts as the optimum method for changes in this area to be made in the U.K.

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

The Court’s Assessment 26. In the previous cases of Rees, Cossey and Sheffield and Horsham, a violation of article 12 was not found where the transsexuals in question could not marry a person of the opposite biological sex. However, the Court, in reviewing this situation in current times, notes that society has evolved, as has the interpretation of what constitutes a “family.” This can now be perceived as a more inclusive phrase and the Convention must reflect the changes in society at some level. Have been considerable developments in the medical and scientific fields regarding transsexuality, and the institution of marriage has been majorly altered since the adoption of the Convention. 27. It is noted that postoperative transsexuals still reserve the right to marry someone of their former opposite sex and therefore their right to marry is not completely absolved. However, the applicant in this case is a woman wanting to marry a man, which is generally the most common form of marriage, and has no possibility of doing so. Therefore, the very essence of her right to marry has been infringed. 28. It is noted that the margin of appreciation afforded to contracting states cannot extend so far as to disallow the marriage of transsexuals. The right to marry is subject to national laws of contracting states but the limitations introduced cannot restrict or reduce the right in any such way or to such an extent that the very essence of the right is impaired.2 The Court finds no justification for restricting the applicant or any transsexual from enjoying the right to marry under any circumstances. 29. The Court finds in these circumstances that there has been a breach of Article 12 in the present case.

2 Goodwin v. The United Kingdom: ECHR 11 Jul 2002 paragraph 99

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 30. The applicant 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.”

The Applicant 31. The applicant complained of a number of instances of discrimination based on her gender, for example being referred to by incorrect pronouns on letters, not being entitled to her state pension until the age of 65 and the inability to claim her “freedom pass” to avail of free travel in London until she was 65 – the age it which it becomes available for men, rather than at 60, the requisite age for women.

The Government 32. The government contended that no further issues had been raised under this article that had not already been dealt with under article 8 and that the complaints failed to disclose any discrimination contrary to the above provision.

The Court’s Assessment

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

33. The Court appreciates the severity of the discriminatory experiences faced by the applicant on a daily basis. The discrimination faced at work could have been dealt with on a criminal law basis. The issue surrounding the applicant’s pension age has already been discussed under article 8 and thus does not arise as a separate discriminatory issue in itself. 34. The Court submits that no separate issue arises under article 14 of the Convention and makes no separate finding.

I. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 35. 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.”

The Applicant 36. In respect of the issues already outlined in this judgment, the applicant complained that she did not have an effective remedy available to her.

The Government 37. The government contended that no arguable breach of a Convention right arose and therefore a violation of article 13 could not arise separately. The Human Rights Act 1998 came into effect on 2 October 2000 meaning that Convention rights could be relied upon in

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

national courts. Thus, the applicant would now have an effective remedy at a domestic level in a national court for the breach of any Convention right.

The Court’s Assessment 38. Having found a breach of article 12 above, the applicant’s complaints in this regard would be arguable for the purposes of article 13. Nevertheless, the case of James and Others v. the United Kingdom 1986 established that article 13 cannot be interpreted as requiring a remedy against the state of domestic law as to do so would constitute the Court requiring Contracting states to incorporate the Convention. Since the introduction of the Human Rights Act 1998 on 2nd October 2000, the applicant could raise her complaints before the domestic courts and thus open up the possibility for a number of redress options. 39. The Court therefore finds no breach of Article 13 in the present case

APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. 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.”

The Applicant

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

41. The applicant has claimed pecuniary damage of a total of 38,200 pounds sterling, to include 31,20 pounds for the pension she should have been entitled to at age 60 and 7,000 pounds for the bus pass she also was not entitled to. The applicant further claimed for nonpecuniary damage in respect of distress, anxiety and humiliation to the sum of 40,000 pounds sterling.

The Government 42. The government contended that if the Court should find any violations of the Convention in this instance, such a finding would be sufficiently satisfactory for the purposes of Article 41.

The Court’s Assessment A. Damage 43. A clear connection must be illustrated between the violation of the Convention and the loss suffered by the applicant. This Court has found a violation of article 12 which arguably has not led to a pecuniary loss. While there is no doubt as to the stress suffered by the applicant, there exists a succession f cases by other applicants raising the same issues and for the Court o afford an award to this particular applicant would not be appropriate.

B. Costs and Expenses

CHRISTINE GOODWIN v. THE UNITED KINGDOM JUDGMENT

44. The applicant claims for legal costs and expenses to the value of 44,372 pounds sterling. This includes 17,000 pounds for solicitor’s fees, 24,550 pounds for the fees of senior and junior counsel, and 2,822 pounds for accommodation and travel expenses. 45. The Government contended that such a figure seemed excessive in comparison to other U.K. cases previously submitted to this Court. 46. The Court concedes that the figures claimed by the applican...