Friday July 31st, 1998

Sex-change recognition fight lost at Strasbourg

BY CLARE DYER, Legal correspondent

Two transsexuals who were born male but fought a long battle for the right to be legally recognised as female, lost their cases by a narrow margin at the European Court of Human Rights in Strasbourg yesterday.

Kristina Sheffield and Rachel Horsham claimed that Britain’s refusal to allow transsexuals to alter their birth certificates and marry in their adopted sex, violated rights guaranteed by the European Convention on Human Rights.

Britain is one of only four of the 40 signatories to the convention refusing to allow transsexuals to re-register their births to reflect a sex change. The others are Ireland, Andorra and Albania.

Under British law, sex is determined at birth and cannot be changed, apart from where there are rare cases of ambiguous sexuality - where a newborn baby has been assigned the wrong sex.

Ms Sheffield and Ms Horsham had argued that the Government’s refusal to accept their new status as women was a breach of their right to marry and to respect for private and family life.

In March last year the European Commission of Human Rights gave an opinion backing their claim. But yesterday the judges decided by 11 votes to nine that there was no violation of their right to respect for private and family life, and by 18 votes to two that the right to marry was not breached in their case.

The two have no further avenue of appeal, but transsexuals hope that a reformed human rights court, with new judges, to be launched in November, will look more favourably on other cases.

Ms Sheffield, aged 51, from Ealing, west London, said: “Two thousand people in this country are being subjected to ridicule every day and it’s not an offence against human rights.” She claimed her right to privacy was breached because she had had to disclose her original sex, when, for instance, attending court to stand surety for a friend, and applying for car insurance. She had to divorce her wife as a condition of having sex-change surgery, in 1988, and a court had denied her access to her daughter, saying contact with a transsexual was not be in the child’s best interests. She has not seen her daughter for more than 12 years.

Ms Horsham, aged 52, who moved to the Netherlands from Britain in 1974, had surgery in Amsterdam in 1992. She has been issued with a birth certificate showing her new name and sex by the register of births in the Hague, but cannot get her original certificate amended in England. She lives with a male partner she plans to marry, but says the marriage, though valid in the Netherlands, would not be recognised in Britain.

The court ruled that Britain’s refusal to recognise transsexuals in law came within the “margin of appreciation” allowing for states’ different social and cultural mores. The harm to transsexuals from sometimes having to disclose their original sex was not serious enough to override this.

But the judges hinted that Britain ought to consider changing the law, noting that the Government had not taken any steps to review it, despite being urged to do so.

John Wadham, director of the civil rights group Liberty, which backed the transsexuals’ claim, said: “If the Government’s commitment to human rights is as strong as it claims, it’ll change the law.”

Ms Sheffield, a former pilot named Ian, served in the RAF and in the Rhodesian Air Force and worked as a commercial pilot. Following recent court rulings that discrimination against transsexuals at work is unlawful, she won a sex discrimination claim against the freight cargo company Airfoyle. The tribunal will decide on her compensation in September.

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