The Sheffield & Horsham case
In the European Court of Human Rights
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On Tuesday 24th February, 1998 the latest in a weary procession of British-born trans people took the long journey to the European Court of Human Rights, in Strasbourg to argue that Her Majesty’s government has violated their rights.
A long journey, indeed … not in miles, but in years.
Rachael Horsham and Kristina Sheffield are just the latest citizens to follow the steps of Press for Change Vice President Mark Rees, Bond Girl / model Caroline Cossey and the whole Whittle family, in a legal wrangle which has been argued extensively and expensively for well over ten years, and which has roots which began in a 1970 divorce case. For, in fact, it was nearly thirty years ago when British transsexual people lost their previously enjoyed ability to have their birth certificates corrected, and began a contradictory legal existence in which the most basic of life’s activities carry an obligation to disclose intimate details of a past medical treatment to strangers who have no other justification or need to know.
British transsexual people cannot take out insurance without declaring themselves. They cannot buy a house with an endowment mortgage without being obliged to do the same. Company and personal pensions require disclosure … a visit to the DSS … any employment in a single-sex environment. Adoption or fostering. The obligation to draw attention to a past, inappropriate and irrelevant label follows British trans people all their days … and beyond. For such is the clerical obsession of their country’s civil servants, they can’t even die with respect.
Mark Rees was the first British-born trans person to risk what it meant, eleven years ago, to fight back … claiming violation of articles 8 and 12 of the European Convention on Human Rights. In 1991 he was followed by the model Caroline Cossey (article 12) … and then in 1997 came Stephen Whittle, his partner Sarah Rutherford, and their first child, in a case which concerned the child’s right to have the man she calls "Daddy" recognised as her father. (Article 8 again).
Each time the claims have been rejected, though on generally decreasing majorities on each occasion, and with the court taking care to leave the door open to the possibility of a rematch at a later date. The judges may be impaled on their own logic, but few dispute the seriousness the problems creted for the plaintiffs.
In that eleven year span a lot has changed, of course. The efforts of Press for Change and others, coupled with a long-overdue emergence of some journalistic maturity, has meant that the questions at issue can be debated more readily in public, and the personal cost of exposure for the plaintiffs is no longer the ordeal it once was. In 1997, Sarah Rutherford was able to declare in fact,
“… it is a truly liberating experience to know that the whole country knows I live with a transsexual man, and that I am proud to love him - and we have had the most amazing support and messages of sympathy - with absolutely no one being horrid.”
For some of us, that simple statement of love and commitment sums up, in a profoundly moving way, the simple wish of all transsexual people. To be accepted, uncompromisingly, for who we are.
Sarah and her partner may have lost their case when the judgement was finally announced last April, but it was a technical rather than a humanitarian decision which shocked many, and the writing is undeniably on the wall for an eventual success. Since the P vs S and Cornwall County Council case in the very differently constituted European Court of Justice, the mould has at lest been cracked. Courts at all levels now can and do find in favour of British trans people.
The Horsham and Sheffield case has many novel factors which mean that it differs from those which went before. It is the first to assert a claim which joins articles 8, 12, 13 and 14 in one argument. It is the first case taken by two trans people at the same time. It is the first transnational case … Rachael Horsham has dual nationality and a marriage which is valid in Holland, where she lives, but not in Britain, where she has citizenship. When the pair’s basic arguments were assessed by the Commission for Human Rights, in March 1997, the case was voted forward to the full court by a majority of 15 to 1. An exceptional event in itself.
The hearing on February 24th is not the end of the trail though. The arguments will be heard … but a decision will not be arrived at until much later in the year … leaving plenty of time to beg the question, “Why is a Labour government, which has just issued an anti-discrimination paper admitting (and even suggesting) that rights violations occur in employment, still fighting a case in which its’ lawyers will have to assert that they don’t ?"
Christine Burns
Vice President, Press for Change
July 1998:
