The rights transsexuals may expect with regard to their family under Article 8, which encompasses family law as a well as a right to respect for a private life, have come under increasing scrutiny in the last 10 years. X, Y and Z v United Kingdom60 concerned a transsexual ‘father’ of a child conceived by his partner through artificial insemination by donor. The transsexual, X, applied to the Registrar General to be recognised as the father of the child (he did not wish to have his birth certificate altered). The Registrar General refused.The European Commission on Human Rights held that there had been a violation of Article 8.
The case progressed to The European Court of Human Rights, where it was held by a majority of 14 votes to 6 that there had been no violation of Article 8. The Court had ‘retreated behind the defences’61 that there was no clear consensus among member states, that the law was in a period of transit and that the reverse decision would have lead to confusions and inconsistencies in family law. The changes being introduced by the Government may see British cases with facts similar to X, Y and Z decided differently in the future.The transsexual’s right to change their birth certificate will have significant repercussions in the area of the family, and it may even extend to allowing the registration of a male-to-female transsexual as the father of a child born to her partner by artificial insemination by donor. Whether this will or will not be the case depends on the content of the legislation and the interpretation thereafter provided by the British courts. It seems certain, however, that the reforms will significantly extend the rights currently protected by Article 8 into the area of family life.
Conclusion:A person’s gender is central to his or her personality and aspirations, and to society’s expectations62. A transvestite who achieves a good cosmetic result is doing no public harm. This it not recognised by the immediate legal situation, however, which is therefore at odds with both social norms and scientific evidence. The consistent refusal of the law to accept a person’s commitment to a reassigned sex, involving long periods of major surgery and drug therapy, and confirmed by doctors, constitutes a serious breach of that person’s right to a private life63. He or she should be fully entitled to operate as a member of his or her chosen sex.
The change in legal perspective was perhaps inevitable. Since the Goodwin ruling the European Court of Rights’ definition of the right to respect for a private life in Article 8 has included transsexuals’ ability to gain legal recognition for a change of gender. However, as yet this has only limited effect in the UK. The importance of the Government’s announcement of reform can therefore not be undervalued. Analysing the extent and effectiveness of the forthcoming legislation is impossible at this stage, but it is at least certain to end English law’s absolute physical distinction between men and women.As individuals are now scientifically regarded as lying on a continuum, the new law will come many steps closer to current scientific understanding64. Because of this, it will show a respect for transsexuals’ right to respect for a private life that it has so far failed to do.
The first test will be the case of Elizabeth Bellinger, a male-to-female transsexual, who lost her appeal to recognise the validity of her marriage to Michael Bellinger in the Court of Appeal in July 2000.Both judges who ruled against her in the Court of Appeal called on the government to change the law65. Her case will be heard in the House of Lords in January 2003. However, despite its proposed reforms, the Government is formally opposing her plea, stating that a human rights ruling is not retrospective66. The reform may have consequences outside the sphere of transsexualism. With the door shortly to be opened to transsexual marriage, it is argued that the campaign for the legalisation of homosexual marriage will gain impetus.
Though homosexuality is still considered by the European courts as a significantly different matter than sex reassignment, it may only be a matter of time before their interpretation of Article 8 is extended into this field. If reform is executed as pressure groups hope, there can be no doubt that the current legal situation is about to change for the better. Reform will extend the British definition of transsexuals’ right to respect for a private life to enable them to gain legal recognition for a change of gender.BibliographyFeldman, Civil Liberties and Human Rights in England and Wales (2002) 2nd Ed. , OUP Helen Fenwick, Civil Liberties and Human Rights (2002) 3rd Ed.
Cavendish Publishing Robert Wintemute, Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes (1997) MLR 60:3 May Mason and McCall Smith, Law and Medical Ethics (1999) 5th Ed. Geoffrey Robertson, Freedom, The Individual and the Law (1993) 7th Ed. Penguin Leo Flynn, Gender Equality Laws and Employers’ Dress Codes (1995) ILJ 24, no. 3, Sep.