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Published online by Cambridge University Press: 27 February 2017
Goodwin v. United Kingdom. App. No. 28957/95. At <http://www.echr.coe.int/Eng/Judgments.htm>.
European Court of Human Rights, Grand Chamber, July 11, 2002.
I. v. United Kingdom. App. No. 25680/94. At <http://www.echr.coe.int/Eng/Judgments.htm>. European Court of Human Rights, Grand Chamber, July 11, 2002.
Under English law, people may change their names and use those new names for official purposes. At the same time, specified biological criteria determine the sex of individuals under the law for various purposes, including marriage and retirement pensions. In Goodwin v. United Kingdom and I. v. United Kingdom, the question presented was whether such biological criteria impermissibly operate to the prejudice of postoperative transsexuals. The grand chamber of the European Court of Human Rights unanimously concluded that the practice of restricting gender in national law to the one registered at birth infringed both the right to respect for private life and the right to marry, contrary to the guarantees of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
1 Goodwin v. United Kingdom., App. No. 28957/95 (Eur. Ct. H.R. July 11, 2002) [hereinafter Goodwin judgment] . The decisions and other materials of the European Court of Human Rights are available online at the Court’s Web site, <http://www.echr.coe.int>. For convenience, citations will be to Goodwin, rather than to its companion case, unless otherwise stated.
2 I, v. United Kingdom, App. No. 25680/94 (Eur. Ct. H.R.July 11, 2002).
3 Nov. 4, 1950, ETS No. 5, 213 UNTS 222.
4 The third section of the European Court of Human Rights, to which these applications were initially allocated, elected to relinquish jurisdiction in favor of the Court’s grand chamber, which heard both cases at the same time before issuing the judgments on the same day.
5 1971 P. 83.
6 This test was broadened in application by the Court of Appeal in Regina v. Tan, 1983 Q.B. 1035.
7 SI 1102 (1999) (adopted pursuant to the decision of the European Court of Justice in P. v. S., 1996 ECR1–2143).
8 Goodwin judgment, supra note 1, para. 54. Developing a statutory framework for issuing revised birth certificates is an essential step toward lasting reform; in all of their most significant judgments, English courts have indicated that the resolution of the plight of transsexuals must be at the behest of Parliament, not through the evolution of the common law.
9 But see infra note 37 and accompanying text.
10 Previous cases include Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A) (1986); Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A) (1990);B. v. France, No.232–C Eur. Ct. H.R. (ser. A) (1992); and Sheffield v. United Kingdom, 1998–V Eur. Ct. H.R. 1221.
11 Goodwin judgment, supra note 1, para. 60.
12 It was also argued that the United Kingdom had violated Article 14 of the Convention, which bars discrimination based on sex. Id., para. 105. The Court did not consider these arguments, however, since it regarded the key to be the nonrecognition of the change in gender and its impact on applicants’ private lives—an issue to be addressed under Article 8. Id., para. 108.
13 Id., para. 63.
14 Id., para. 70.
15 Id., para. 71.
16 Id., para. 74 (citations omitted).
17 Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) at para. 31 (1978).
18 Goodwin judgment, supra note 1, para. 90.
19 In a recent case before the English Court of Appeal, a dissenting judge argued that the family justice system should be flexible enough to accommodate freedom of choice and thus gender reassignment Bellinger v. Bellinger, 2002 All E.R. 311 (Thorpe, L.J., dissenting). This case is pending before the House of Lords on appeal. The majority of the court maintained, however, that any change in the law would have to be at the instigation of Parliament; it was not open to the courts to make radical departures from existing precedent. In several previous cases, see supra note 10, English courts had held that the maintenance of biological criteria for determining gender for marriage did not infringe Article 12.
20 Goodwin judgment, supra note 1, para. 103.
21 Id., para. 120.
22 Id., para. 123.
23 Id., para. 124.
24 Id., para. 85.
25 Sheffield v. United Kingdom, 1998–V Eur. Ct. H.R. 1221, para. 60.
26 106 Eur. Ct. H.R. (ser. A) (1986).
27 184 Eur. Ct. H.R. (ser. A) (1990).
28 1998-V Eur. Ct. H.R. 1221.
29 Goodwin judgment, supra note 1, para. 98.
30 Id., para. 101.
31 2000 O J. (C 364) 1, available at <http://ue.eu.int/df/docs/en/CharteEN.pdf>. This document is the most recent European text on general human rights.
32 Pursuant to Article 30 of the Convention, chambers of the Court may, for this purpose, relinquish jurisdiction in favor of the grand chamber.
33 The text is available online at <http://www.hmso.gov.uk/acts/actsl998/19980042.htm>.
34 Sec. 2(1).
35 Sec. 3(1). If the legislation cannot be interpreted compatibly, the national court may issue a declaration on incompatibility while applying the national law to the facts of the case.
36 It should be noted that the Human Rights Act emphasizes the importance of “freedom of thought, conscience and religion” (sec. 13), which may well provide particular religions with a legal basis for refusing to allow transsexuals to marry. To that extent, and assuming that such prohibitions would be upheld in English courts, the legal right for transsexuals to marry would be effectively limited to civil ceremonies (and to those religions that did not bar such marriages).
37 Lord Chancellor’s Department, Press Notice 441/02 (Dec. 13,2002), a«http://www.gnn.gov.uk/gnn/national.nsf>. Note that the proposed statute would still provide for full disclosure in certain circumstances.
