AS TO THE ADMISSIBILITY OF
by Wena and Anita PARRY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 28 November 2006 as a Chamber composed of:
Mr J. Casadevall,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 23 November 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are British nationals who were born in 1939 and 1940 respectively, and live in Port Talbot. They are represented before the Court by the Student Law Office, lawyers practising in Newcastle-upon-Tyne.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants married in 1960. They have had three children, born in 1961, 1963 and 1973. They remain lawfully married. Both have deep religious convictions; the first applicant was ordained as a church minister in 1970.
The first applicant was born male. However, the first applicant felt from an early age a strong desire to live as a woman. In 1998, the first applicant started to take steps to come to terms with this need. The first applicant was ultimately advised by doctors that he would require gender reassignment surgery; this was carried out at public expense on the National Health Service (although it is not entirely clear when this took place). She continues to undergo hormone replacement treatment and other forms of treatment such as laser treatment and electrolysis. She changed her name by deed poll from William David Parry to Wena Dean Parry in 1998. She has completed all of her surgical interventions and contends that she is in all private and public relationships a woman.
The second applicant has stood by the first applicant, and they contend that they remain together as “a loving and married couple.”
Following the introduction of the Gender Recognition Act 2004 (‘GRA 2004’), the first applicant made an application to the Gender Recognition Panel (‘the Panel’) on 1 January 2005 for the issue of a Gender Recognition Certificate (‘GRC’).
Because the first applicant is married, the Panel could only issue an interim GRC, which they did on 25 May 2005. The only purpose of such a certificate is to enable the first applicant to seek annulment of a lawful marriage. On annulment, she would then be able to obtain a full GRC, a formal recognition of her acquired gender.
Neither applicant wishes to annul their marriage, so the first applicant is unable to obtain a full GRC.
B. Relevant domestic law and practice
1. Gender Recognition Act 2004
The Gender Recognition Act 2004 (‘GRA 2004’) provides a mechanism whereby transsexuals may have their new genders recognised. Section 2 provides that a Gender Recognition Panel must grant an application if it is satisfied that the applicant: (1) has, or has had, gender dysphoria; (2) has lived in the acquired gender throughout the preceding two years; and (3) intends to continue to live in the acquired gender until death.
By section 3, an application must include a report from a registered medical practitioner, or a chartered psychologist, either of whom must be practising in the field of gender dysphoria. This report must include details of diagnosis. A second report must also be included, which need not be from a medical professional practising in the field of gender dysphoria, but could be from any registered medical practitioner. At least one of the reports must include details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics.
Section 4 sets down the consequences of an application being successful. It reads in material part as follows:
“(1) If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant.
(2) Unless the applicant is married, the certificate is to be a full gender recognition certificate.
(3) If the applicant is married, the certificate is to be an interim gender recognition certificate.
(4) Schedule 2 (annulment or dissolution of marriage after issue of interim gender recognition certificate) has effect.
Section 5 governs the situation where an interim certificate has been granted. It reads in relevant part as follows:
“(1) A court which -
(a) makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage, or
(b) (in Scotland) grants a decree of divorce on that ground,
must, on doing so, issue a full gender recognition certificate to that party and send a copy to the Secretary of State.
(2) If an interim gender recognition certificate has been issued to a person and either-
(a) the person’s marriage is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or
(b) the person’s spouse dies within that period,
the person may make an application for a full gender recognition certificate at any time within the period specified in subsection (3) (unless the person is again married).
(3) That period is the period of six months beginning with the day on which the marriage is dissolved or annulled or the death occurs.
(4) An application under subsection (2) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted, or of the death of the spouse and the date on which it occurred.
(5) An application under subsection (2) is to be determined by a Gender Recognition Panel.
(6) The Panel –
(a) must grant the application if satisfied that the applicant is not married, and
(b) otherwise must reject it.
(7) If the Panel grants the application it must issue a full gender recognition certificate to the applicant.”
The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce.
The other provisions of the GRA 2004 only apply where a full gender recognition certificate is concerned. These include, for instance, section 9, which provides that:
“(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
By Paragraph 3 of Part 1 of Schedule 3 to the GRA 2004, the issue of a full gender recognition certificate obliges the Registrar General to make an entry in the (new) Gender Recognition Register and to mark the original entry in the register of births referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. Paragraph 5 makes provision for certified copies to be made of any entry in the GRR and to be issued to anyone who would be entitled to a certified copy of the original entry relating to the transsexual person. It will not be apparent from the certified copy that it is compiled from the GRR. A short certificate of birth compiled from the GRR must, by Paragraph 6, not disclose that it is compiled from the GRR. Both copies of and short-form certificates therefore look the same as any other birth certificates; they therefore act, to all outward intents and purposes, as new birth certificates.
Not all provisions of the GRA 2004 require status or situations existing prior to gender recognition to be changed or dissolved. For instance, provisions as to parenthood (section 12), succession (section 15) and peerages (section 16) explicitly provide that the person’s gender has become the acquired gender does not effect their status or rights flowing therefrom.
2. Marriage in English law
Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage is void unless the parties are “respectively male and female.”
In Corbett v Corbett  Probate Reports 83 it was held that marriage could only be between a woman and a man, determined on genital, gonadal and chromosomal factors, and should not take into account the party’s psychological beliefs, however genuine and profound.
Section 11(c) of the Matrimonial Causes Act 1973 and Corbett v Corbett have recently been reconsidered by the House of Lords in Bellinger v Bellinger  UKHL 21. Their Lordships considered that the words “male” and “female” were to be given their ordinary meaning and referred to a person’s biological gender as determined at birth so that, for purposes of marriage, a person born with one sex could not later become a person of the opposite sex. They therefore held that it was not possible under English law for a person to marry another person who was of the same gender at birth, even if one of them had undergone gender reassignment surgery. They did, however, issue a declaration that Section 11(c) of the 1973 Act represented a continuing obstacle to the ability of the (male to female) transsexual petitioner to enter into a valid marriage with a man, and that it was therefore incompatible with her rights under Articles 8 and 12 of the Convention.
3. Civil Partnership Act 2004
The Civil Partnership Act (the CPA 2004) came into force on 5 December 2005. It has the effect of allowing same sex couples to acquire a legal status for their relationships, with legal rights and responsibilities. It is, however, devoid of any religious element.
The applicants complained under Article 8 of the Convention that the GRA 2004 represented an unjustified interference with their right to respect for private and family life, because: (1) the first applicant was unable to obtain legal recognition of her acquired gender unless she terminates her marriage to the second applicant, which constituted an interference with her right under Article 8 to such recognition; (2) and the United Kingdom required that their marriage be dissolved before recognition was given to the acquired gender of the first applicant, which constituted an unjustified interference with their private and family life.
The applicants complained that their rights under Article 12 of the Convention have been violated because the United Kingdom had made the recognition of the first applicant’s acquired gender contingent on the dissolution of their marriage.
The applicants complained under Article 9 of the Convention that the requirement that they annul their marriage in order for the first applicant to receive recognition of her acquired gender is an unjustified interference with their fundamental religious beliefs, in which marriage is central.
The applicants complained under Article 1 of Protocol 1 to the Convention as to the interference with their right to peaceful enjoyment of possessions contingent on the annulment of their marriage and entry into a civil partnership because of the expenses incurred thereby.
The applicants complained under Article 14 of the Convention read in conjunction with all of the Articles set out above of discrimination on the basis of status, in the first applicant’s case as a post-operative transsexual who was lawfully married, and in the second applicant’s case as a person lawfully married to a post-operative transsexual.
The applicant complained that they had no effective remedy available open to them, in breach of Article 13 of the Convention.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
The Government submitted that the applicants had failed to exhaust domestic remedies under Article 35 § 1 of the Convention as they had made no attempt to pursue a claim in the domestic courts that their Convention rights have been violated, in particular by seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998.
The applicants argued that a remedy which was not enforceable or which was dependent on the discretion of the executive fell outside the concept of effectiveness notwithstanding that it might furnish adequate redress where it had a successful outcome. They refuted the notion that a declaration of a violation by the Strasbourg Court was the same as a finding of incompatibility by the domestic courts, as inter alia the findings and procedures were fundamentally different in nature.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI).
Insofar as the Government argue that the applicants should be required under Article 35 § 1 to seek a declaration that the legislation is incompatible with the Convention, this is an argument that has been raised in a number of recent cases (see e.g.. B. and L. v. the United Kingdom, no. 36536/02, (dec.) 29 June 2004). To date however, the Court has found that a declaration of incompatibility issued by the domestic courts to the effect that a particular legislative provision infringed the Convention cannot be regarded as an effective remedy within the meaning of Article 35 § 1. As stated in Hobbs v. the United Kingdom, no. 63684/00, (dec.) 18 June 2002):
“In particular, a declaration is not binding on the parties to the proceedings in which it is made. Furthermore, by virtue of section 10(2) of the 1998 Act, a declaration of incompatibility provides the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. The minister concerned can only exercise that power if he considers that there are ‘compelling reasons’ for doing so.”
Similar reasoning was applied in Walker v. the United Kingdom (no. 37212/02 (dec.), 16 March 2004) and Pearson v. the United Kingdom (no. 8374/03 (dec.), 27 April 2004).
It remains the case that there is no legal obligation on the minister to amend a legislative provision which has been found by a court to be incompatible with the Convention. It is possible that at some future date evidence of a long-standing and established practice of ministers giving effect to the courts’ declarations of incompatibility might be sufficient to persuade the Court of the effectiveness of the procedure. At the present time, however, there is insufficient material on which to base such a finding.
The Court does not consider that these applicants could have been expected to have exhausted, before bringing their application to Strasbourg, a remedy which is dependent on the discretion of the executive and which the Court has previously found to be ineffective on that ground.
Consequently, the Government’s preliminary objection is rejected.
II. ARTICLE 8 OF THE CONVENTION
The applicants complained that the GRA 2004 breached their right to respect to family and private life in making the grant of a full gender recognition certificate conditional on their divorce. They invoked Article 8 of the Convention which provides as relevant:
“1. Everyone has the right to respect for his private and family life, ...
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 parties’ submissions
The Government accepted that the decision to require a person to end his or her marriage before that person could obtain a full gender recognition certificate engaged the Article 8 right to respect for private life but not that concerning family life as the right to marry is governed by Article 12. They submitted that the effect on past marriages of a change in gender was left within the margin of appreciation as had been expressly mentioned in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002 VI, § 103). This was entirely appropriate given the different approaches taken by Contracting States to the treatment of same-sex relationships and, even more so, to the recognition of same-sex marriages. It appeared that only three Contracting States permitted the latter while 11 allowed only for civil partnerships. Furthermore a substantial majority of Contracting States that allowed transsexuals to change their legal gender required those persons to bring any existing marriage to an end.
The Government submitted that the law of marriage in English law referred to marriage between different sexes and was a sensitive area with profound cultural and religious connotations. It was thus legitimate for the Government to have regard to social, religious, ethical and cultural views within a society when introducing legislation such as the GRA 2004. During the passage of the legislation they and the legislature had been well aware of the concerns now expressed by the applicants for preservation of existing marriages after a change of gender by one of partners but decided that it was appropriate for a clear ‘bright line’ rule to be maintained, reserving marriage for couples of different sexes. This was a proportionate response bearing in mind that the Civil Partnership Act 2004 permitted transsexuals to enter into a civil partnership with their former spouse, thereby enabling them to enjoy the same financial and other legal benefits associated with marriage. Indeed it permitted persons in the applicants’ position to enter such a partnership on the same day on which their marriage was annulled. They considered that there were only a few, very modest costs associated with the proceedings for nullity (some GBP 300 in court fees) and civil partnership processes(about GBP 70), together with drawing up new wills (some GBP 200 for a couple).
The applicants submitted that there had been an interference with both their private life and family life, the latter clearly compassing the relationship that arose from a lawful and genuine marriage. They emphasised that they had been married for some 40 years and brought up children together.
The applicants argued that the Christine Goodwin case (cited above) did not support the Government’s view, as in context the passage was concerned with striking down a bar on marriage and was taking into account the position of third parties, as for example, where an existing spouse does not wish to continue the marriage. As regards the wide margin of appreciation claimed by the Government, they submitted that it was irrelevant that there was no uniformity in approach between Contracting States, as regarded same-sex marriages as they were not claiming a right to get married but to remain married. However, in their view, social values in this area were developing exceptionally fast, with a clear trend for equal treatment of opposite and same-sex couples, more countries moving towards same-sex marriages or civil partnerships, with a majority now recognising such unions (citing Lord Mance in Secretary of State for Work and Pensions v. M  UKHL 11).
The applicants further argued that the provision did not have any legitimate purpose, refuting the notion that it would be immoral to allow their established marriage, which had given rise to children, to continue. There was no proportionality either as there was no connection between the aim of the measure and the steps taken to meet it. They submitted that allowing subsisting marriages to continue on a “deemed” basis, as in other areas of the legislation e.g. concerning parenthood, would have no effect on a prohibition of persons of the same sex entering into marriage. Finally, civil partnership did not provide them with the equivalent of marriage; they lacked the historic, social and religious contexts of marriage, which was a lynchpin of social organisation. The status of civil partnerships also remained uncertain in civil law, with no provision stating that the rights and responsibilities flowing from a civil partnership are the same as those that flow from marriage and with no indication as to how the courts will approach the legal differences between the two states.
B. The Court’s assessment
The Court recalls that the Grand Chamber judgment in Christine Goodwin v. the United Kingdom (cited above) found that there was a breach of Article 8 in the failure of the United Kingdom to provide legal recognition for post-operative transsexuals. Following that judgment, the United Kingdom have introduced a system whereby transsexuals may apply for a gender recognition certificate. The first applicant, may, if she wishes to obtain legal recognition, apply for such a certificate. In her case, however, she must as a precondition end her marriage to the second applicant.
The legislation clearly puts the applicants in a quandary – the first applicant must, invidiously, sacrifice her gender or their marriage. In those terms, there is a direct and invasive effect on the applicants’ enjoyment of their right to respect for their private and family life. It would be artificial, and unduly pedantic, to exclude the latter, when the process of annulment would in and of itself affect the status of family life which the applicants currently enjoy as a married couple. However, it must be taken into account, as the Government have asserted, that Article 12 is the lex specialis for the right to marry.
It therefore falls to be examined whether the respondent State has failed to comply with a positive obligation to ensure the rights of the applicants through the means chosen to give effect legal recognition to gender re-assignment. In this context, the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, § 37).
In the present case, the Court notes that the requirement that the applicants annul their marriage flows from the position in English law that only persons of the opposite gender may marry; same-sex marriages are not permitted. Nonetheless it is apparent that the applicants may continue their relationship in all its current essentials and may also give it a legal status akin, if not identical to marriage, through a civil partnership which carries with it almost all the same legal rights and obligations. It is true that there will be costs attached to the various procedures. However the Court is not persuaded that these are prohibitive or remove civil partnership as a viable option.
The Court concludes, as regards the right to respect for private and family life, that the effects of the system have not been shown to be disproportionate and that a fair balance has been struck in the circumstances.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 25 §§ 3 and 4 of the Convention.
III. ARTICLE 12 OF THE CONVENTION
The applicants complained that they were required to end their marriage by the GRA 2004, invoking Article 12 of the Convention which provides:
“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.”
A. The parties’ submissions
Referring also to their arguments above, the Government submitted that the right of a man and a woman to marry was confined to marriage between persons of a different sex (e.g. B. and L. v. the United Kingdom, no. 36536/02, judgment of 13 September 2005, § 34). This principle applied equally to the consideration whether there was any right to remain married where the gender of one of the parties to the marriage changed. In any event, they submitted that Article 12 rights were not interfered with by the GRA 2004 as the applicants were not required to bring to an end their marriage. It was a matter of choice for the second applicant as to whether to obtain a full GRC. Furthermore, the right under Article 12 was subject to the operation of ‘national laws’ which in the United Kingdom provided that marriage was a relationship between persons of the opposite sex. This rule did not impair or restrict the very essence of their rights to marry as they would both be free to marry a person of the opposite gender once a full GRC had issued.
The applicants submitted that the right to marry must include the right to ongoing recognition of that marriage. They submitted that there were no other circumstances in which the State purports to be able to cease to recognise a marriage that it accepts was lawfully entered into and denied that there was any element of choice involved in deciding whether to terminate their marriage, as it could not be said that the first applicant could by an act of will stop following her identity. The Government’s arguments concerning the non-existence of a right to marriage of same-sex couples was beside the point as the applicants however were not in that position but a couple lawfully married who wished to remain so and no Court case covered that situation. They referred to their arguments above as to the growing international trend and submitted that the very essence of their right was restricted as in order to access rights under the GRA 2004 the applicants would be required to bring their marriage to an end.
B. The Court’s assessment
Article 12 secures the fundamental right of a man and woman to marry and to found a family. The exercise of the right to marry gives rise to social, personal and legal consequences and Article 12 expressly provides for regulation of marriage by national law. Given the sensitive moral choices concerned and the importance to be attached in particular to the protection of children and the fostering of secure family environments, this Court must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society (B. and L., cited above, § 346). The matter of conditions for marriage in national law cannot, however, be left entirely to Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. Any limitations introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see Rees v. the United Kingdom, judgment of 17 October 1986, Series A no. 106, § 50; F. v. Switzerland, judgment of 18 December 1987, Series A no. 128, § 32).
In the present case, the Court notes that the applicants were lawfully married under domestic law. They wished to remain married. Though there were children to the marriage, there is no suggestion that they, or any other individual, would be adversely affected if they did so. In seeking to comply with the Court’s judgment in Christine Goodwin v. the United Kingdom (cited above) in which it had been found that the biological criteria governing the capacity to marry imposed an effective bar on transsexuals’ exercise of their right to marry, the legislature have now provided a mechanism whereby a transsexual can obtain recognition in law of the change and thus be able, for the future, to marry a person of the new opposite gender. The Court observes that the legislature was aware of the fact that there were a small number of transsexuals in subsisting marriages but deliberately made no provision for those marriages to continue in the event that one partner made use of the gender recognition procedure.
In domestic law marriage is only permitted between persons of opposite gender, whether such gender derives from attribution at birth or from a gender recognition procedure. Same-sex marriages are not permitted. Article 12 of the Convention similarly enshrines the traditional concept of marriage as being between a man and a woman (Rees, cited above, § 49). While it is true that there are a number of Contracting States which have extended marriage to same-sex partners, this reflects their own vision of the role of marriage in their societies and does not, perhaps regrettably to many, flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950.
The Court cannot but conclude therefore that the matter falls within the appreciation of the Contracting State as how to regulate the effects of the change of gender in the context of marriage (Christine Goodwin, cited above, § 103). It cannot be required to make allowances for the small number of marriages where both partners wish to continue notwithstanding the change in gender of one of them. It is of no consolation to the applicants in this case but nonetheless of some relevance to the proportionality of the effects of the gender recognition regime that the civil partnership provisions allow such couples to achieve many of the protections and benefits of married status. The applicants have referred forcefully to the historical and social value of the institution of marriage which give it such emotional importance to them; it is however that value as currently recognised in national law which excludes them.
It follows that this part of the application is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. REMAINING COMPLAINTS
The applicants also complained under Article 9 that the requirement to dissolve their marriage interfered with strongly held religious beliefs; under Article 1 of Protocol 1 concerning costs flowing from their change in status; under Article 14 that the provisions of the GRA 2004 requiring their marriage to end were discriminatory under Article 14 (together with other provisions invoked); and under Article 13 that they had no effective remedy in respect of the other violations of which they complain.
The Court notes, firstly, as regards Article 9, that the provisions do not purport to regulate marriage in any religious sense and that it depends on each particular religion the extent to which they permit same-sex unions. The manner in which the State chooses to grant its own formal legal recognition to relationships does not, in the circumstances of this case, engage its responsibility under this provision.
As regards Article 1 of Protocol No. 1 to the Convention, insofar as there would be financial repercussions following from any nullity or partnership procedures, any interference with the right to peaceful enjoyment of possessions would be lawful and disclosing a fair balance between the conflicting interests of the individual and society as a whole. The Court doubts that the applicants can, for the purposes of Article 14 of the Convention, claim that they are in a comparable position to others who are unaffected by the new legislation but to the extent that any possible issue of difference of treatment arises, this is justified on the same grounds identified above in the context of Articles 8 and 12 of the Convention. Lastly as regards Article 13 of the Convention, it has found no arguable claim arising of a breach of one of the other rights of the Convention and consequently Article 13 is not engaged (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
It follows that this part of the application is manifestly ill-founded as a whole and must also be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. Early Josep Casadevall