Waiting for Justice - The Fallout
The aftermath of the ECHR Judgement
April 28th, 1997
… 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
Sarah Rutherford
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A news reporter was rather bemused last week when I admitted to be being superstitious about celebrating the event before it had happened. In her view the result looked pretty certain as we talked about the prospects for the XYZ case the night before the judgement was due.
In September 1995 the Human Rights Commission in Strasbourg had agreed by 13 to 5 that this case did involve a violation of the convention protecting family life. A year later, in August 1996, the full court heard the facts of the case again, against a backdrop of scientific papers shedding new light on the nature of transsexuality and mere months after the European Court of Justice had ruled that transsexual people were entitled to employment protection. Just four weeks ago the Commission had voted by an unprecedented 15 to 1 majority that another rights claim, involving two more transsexual women from Britain, should be heard.
It would be hard to miss a pattern developing here. So why was I not more openly confident?
Well, to tell the truth, in private I was. Yet transsexual people have grown up in a world where authority seems to possess limitless resourcefulness when it comes to finding ways of denying the very simple thing we seek. We learn to take nothing for granted. It was prudent to plan for the possibility that a result in our favour, just nine days before a general election, would almost certainly plunge us into the middle of a row about Europe’s interference in Britain’s sovereignty. Yet as I drove across the Pennines to a business meeting on Tuesday morning, waiting for the news at any second on Radio Four’s Today programme, I was surprised how unshocked I was when the announcer said that Stephen and Sarah had lost. .. And that they’d lost by 14 to 6.
Now in hindsight, of course, we can see the loophole … the hidden European perspective on parenthood … which we’d previously missed. Although Stephen and Sarah may be comparatively discriminated against in the United Kingdom, because our law allows non biological fathers to adopt legal fatherhood on a child’s birth certificate, the same right does not exist universally in the rest of Europe or around the world. So you can, at one level, see the judges’ clinically correct viewpoint that there was no firm basis or consensus against which to compare Stephen’s treatment with that afforded to non-biological father figures in general.
On the other hand, just about the last compliment ever paid to the European Court of Human Rights is that it is legally rigorous. Indeed, its’ critics are usually to be heard claiming the very opposite. The reason why the British Conservative Party is so fundamentally opposed to incorporating the European Convention on Human Rights and Fundamental Freedoms into domestic law is that the type of judgements it encourages are, by nature, value judgements. And value judgements are, for the most part, political ones.
Alexander Hill-Smith QC [1], wrting in a booklet published by the Society of Conservative Lawyers puts it thus:
"The most vital point to be made in relation to the jurisprudence of the court is that the work of the court inevitably comprises the making of value judgements. The judgements of the Court are not really concerned with interpretation. The meaning of the words used is clear enough. The Court is being asked to weigh up a specific factual situation and decide whether the facts fall inside or outside very often a broadly worded exclusions. The phrase "necessary in a democratic society" is frequently used in the Convention. To say whether something is or is not necessary in a democratic society is not a legal question as normally understood in this country; it is in fact a political question. The Court is in effect being asked to decide whether, within the parameters set by the Convention, it approves of certain conduct or not."
Yet European Lawyers also know which side their bread is buttered. Representing their individual countries whilst officially representing the politically awkward implications in a straightforward interpretation of the Convention’s Articles inevitably calls for some deft political footwork of their own at times, and for this purpose the Court has evolved a very handy get-out clause. It’s called the "margin of appreciation".
Alexander Hill-Smith, again …
" …Thus the Court has accepted that there must be given to the actions of a contracting state a certain "margin of appreciation" to act in the manner it thinks best. The concept of the margin of appreciation cannot be stretched too far but it means that the court allows states a certain flexibility in their dealings with individuals. The concept of the margin of appreciation has as its justification the view that the individual nation state is in a better position than an international court to state what moral standards should apply in any particular country."
This is an astonishing get-out clause for a court which is being asked to act as arbiter between an aggrieved citizen and their state of course. It’s like complaining to the teacher that the school bully has stolen your sweets and hearing the teacher decide that, in the playground, the bully is better equipped to judge whether this was right or not! Some defender of justice!
And it was the "margin of appreciation" principle which the court decided to shelter behind in this latest case.
When it suits, of course, the Court can summon extraordinary powers of judicial nerve. The British establishment will probably never forgive, or forget, the Court’s most controversial judgement of all, when it ruled by 10 to 9 in March 1988 that the SAS had breached the right to life of three IRA terrorists, shot dead on the streets of Gibralta.
Yet when a man seeks no more than the right to take a legal responsibility in the upbringing of his partner’s children all that sang froid seems to melt away, for fear (I presume) of the unspoken consequences down the road of letting the gender outlaws into society.
The lesson, if it needed teaching therefore, is that transsexuals seemingly cannot trust the European Court of Human Rights to make a stand on their behalf, no matter how sympathetic the plaintiffs appear.
Which brings us back home …
The good news about the XYZ case is, of course, that the British just love underdogs. And the message is getting home at last that transsexuals in this country are the recipients of some quite extraordinary official prejudice. Even the right wing family values group "Youth Concern and Family Rights" voiced its’ support for Stephen and Sarah last week. In a country that’s desperately looking for some sort of models of traditional values … stability, integrity, commitment … the Whittle family and their kind appear to have what it takes.
We can’t find these qualities in traditional public figures any more. The seriously dysfunctional Royal Family would see a visit from the social workers like a shot if they were not who they are. Politicians are either known to be sexually promiscuous and inveterate liars, or we usually suspect them to be. Few other public figures inspire hope when it comes to personal relationships and morality.
Yet what of transsexuals? People prepared to lose everything to state the truth about themselves. People who will stand up for their rights, and for the rights of their loved ones, in the face of quite terrifying odds. People who want to found stable families, given the chance. People who, like Sarah and Stephen, stick by one-another for eighteen years at a time when others find it easier to get out of a marriage contract than out of a hire purchase agreement.
I joked at a recent PFC planning meeting that perhaps we ought to field fifty Parliamentary candidates so that we qualified for a Party Political Broadcast. There are times, however, when it doesn’t seem such a bizarre proposition. Which would you vote for? A person who’ll say anything to get elected … or a person who stands firm in the face of once-universal opposition, to state the truth about themselves?
So, on balance we may have lost a battle in Europe last week but (in PR and educational terms) nobody can deny the increasing sympathy and understanding for our simple and unwavering proposition. And if that’s the case then it’s actually better for the country to make its’ own mind up … for a new government to enact popular legislation which answers our plea.
Better that than a country and establishment which feels, begrudgingly, that it was forced to legislate against its’ will.
We really cannot have made it easier for politicians either .. we’ve drawn all the risk out of the issue, done the PR, and transformed the matter into one commanding a good deal of public and media support. In short, it’s the perfect "good cause" for a new, clean, government to be seen to address. It doesn’t cost money, it doesn’t put anyone’s noses out of joint, and it leaves the "doer" looking sensible and compassionate.
So as I start the first full week after the XYZ judgement I’m no less optimistic than before. More so in fact. On Friday a new age will begin with a new Parliament. Five full years ahead in which to campaign for an issue whose time has surely come.
We live, most surely, in exciting and changing times.
Christine Burns
(Copyright © 1997)
References :
[1] Alexander Hill-Smith, Human Rights in Britain, Published by the Society of Conservative Lawyers