3.3
Rights of transsexuals
3.3.1 Introduction In the following cases, the ECtHR discussed whether Member States are obliged, under the Article 8 of the ECHR, to recognize the transsexual persons their changed sex on all of the official documents. Furthermore, the ECtHR discussed whether, under the Article 12 of the ECHR, transsexual persons should be recognized the right to marry a person of the opposite sex.
3.3.2 Application no. 9532/81, Rees v. The United Kingdom, ECtHR (1986) Mr Rees undertook medical treatment to change his sex into male. After successful change of name in his passport and adding of the prefix “Mr”, change of gender on his birth certificate was denied. Under the law of the United Kingdom, a birth certificate is a record of facts at the time of a birth. It reveals historical facts and not current identity since intends to provide accurate and authenticated evidence of the past events and to enable the establishment of the family's connections related to succession, legitimate descent and distribution of property. Later amendments of the birth certificates would only be allowed if an error occurred when the birth was registered or within twelve months from that date. If such amendment was concerning person’s sex, the practice of the Registrar General is to use only biological criteria, i.e. chromosomal, gonadal and genital sex. After exhaustion of national remedies, Mr Rees appeals to the ECtHR. The applicant argued that his right to respect for private and family life983 as well as his right to marry984 were violated by the legislation of the United Kingdom since the birth certificate and the sex stated there becomes relevant when the person would want to contract a (valid) marriage. The Court acknowledged that several Member States had given transsexuals the option to change their personal status after complying with certain conditions. However, it should be taken into account that Member States still enjoy a wide margin of appreciation when regulating this issue because the law is in a transitional period. Member States need to find fair balance between the general interest of the community and that of individuals. Positive obligations under the Article 8 cannot be extended in so far to include changes of sex in birth certificates. Accordingly, the Court ruled that there was no violation of the Article 8 of the Convention. Secondly, the applicant complained that his inability to marry a woman violated Article 12 of the Convention. The Court took the traditional approach and interpreted marriage as allowed only between persons of the opposite biological sex. Further exercise of such right must be subject to 983 Article 984
8 European Convention on Human Rights (Rome, 4 November 1950) Article 12 European Convention on Human Rights (Rome, 4 November 1950)
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