A Genealogy of Gender Identity - Gender Identity in the ECtHR: Cossey v UK

Part VIII

Caroline Cossey on the cover of Playboy in 1991

This case was decided by the ECtHR in 1990. On the facts it is very similar to the Rees case, with the important differences that this is a case involving a MtF transsexual and that the change of birth certificate was necessary for the purpose of marriage. One cannot help noticing the sexualisation of the male transsexual. The distance from the female transsexual who wanted to become a Minister of the Church of England could not be wider!

Cossey was born in 1954 and registered as male. With the onset of puberty, he started to develop what we would probably refer to as gender dysphoria, though the Court refers to his ‘psychological sex’ as being female. It is noticeable that both in this case and in Rees the Court always uses pronouns matching the current identity of the applicants, in a way that sometimes introduces some ambiguity in the language.

The applicant changed his name to Caroline at the age of 18 and by the age of 20 he had completed his hormonal and surgical transition as well (which the Court, for the first time calls ‘gender reassignment’ at para. 15). He was sexually attracted to men so, absent the surgical transition, we would describe him as a homosexual or gay male. Instead the Court reports that “A medical report dated 8 February 1984 describes Miss Cossey as a pleasant young woman […] able to have sexual intercourse with a man.”

Cossey worked as a successful fashion model. It is interesting that the description of Cossey’s early life evidences no hardship and no discrimination. He is able to obtain medical and surgical treatment on the NHS, change his documents, and have a sex life without the discrimination and condemnation often suffered by young gay males in the 1970s/1980s. In this article from 2017 written on the occasion of the death of Hugh Hefner, Cossey claims his movie career was over when the News of the World outed him as transgender. His career thus far had included an incredited non speaking role in the 1981 Bond movie For Your Eyes Only (see here).

Cossey wrote two autobiographies, one in 1982 and one in 1991. In 1992 he got married to a Canadian man.

The problems leading to the Court case started in 1983 when Cossey applied to marry an Italian man. The Registrar General rejected his request for a marriage licence on the basis that, as a matter of English law, Cossey was still legally male and same sex marriage was not allowed and birth certificates could be amended to record a change of anatomical sex to the extent allowed by medical science. So the legal situation had not changed, as we know, from the Rees case decided four years before.

In 1989 Cossey claimed to have married another man at a London synagogue, but the marriage lasted less than a month. That marriage was, of course, declared void by the High Court, with the decree nisi finalised in 1990. The application to the Commission (at the time cases had to be submitted to the Commission first, which decided on their admissibility to the Court) was again under Article 8 and Article 12 (Right to Marry) of the Convention.

As the application is similar to the one made in the Rees case, the Court first was interested in determining whether this case could be distinguished from the Rees case on its facts. It should be remembered that there is no doctrine of precedent in international law, so that the Court was not bound to follow its own precedent. It is also true though that the Court rarely departs from its own previous judgments without a reason, mainly that the cases are distinguishible on the facts. The Court decided the two cases were NOT distinguishible on the facts, because the fact Rees was a FtM transsexual and Cossey a MtF transsexual and the second wished to marry while the first one did not was irrrelevant. What mattered is that both sought to amend their birth certificate for different reasons.

So the first reason why Cossey could have hoped for the Court reaching a different decision was shut down by the Court. Another reason why the Court may depart from a previous judgment is because of the ‘living instrument’ interpretative stance of the Court. This is also not an easy claim, as only four years had passed since the Rees Judgment.

In fact at the end of the consideration of the claim on the basis of what previously decided four years previous, the Court stated:

The Court has been informed of no significant scientific developments that have occurred in the meantime; in particular, it remains the case - as was not contested by the applicant - that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex.

There have been certain developments since 1986 in the law of some of the member States of the Council of Europe. However, the reports […]reveal […] the same diversity of practice as obtained at the time of the Rees judgment. Accordingly this is still, having regard to the existence of little common ground between the Contracting States, an area in which they enjoy a wide margin of appreciation. In particular, it cannot at present be said that a departure from the Court’s earlier decision is warranted in order to ensure that the interpretation of Article 8 on the point at issue remains in line with present-day conditions.

[….]

The Court accordingly concludes that there is no violation of Article 8 (art. 8).

The Court would, however, reiterate the observations it made in the Rees judgment (p. 19, para. 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review.

The Court equally rejected the claim of violation of Article 12, as British law at the time did not allow same sex marriage. Cossey had argued that he was effectively prevented to marry at all. The Court does not accept this argument as there is nothing in law preventig Cossey, who is legally and biologically a male, to marry a biological female. Of course the unspoken element in this case is the sexual orientation of Cossey, the only element that prevented him from marrying a woman, or better, from wanting to marry a woman. Once again, the Court appeals to inconsistent practice between the Member States to grant the UK a wide margin of appreciation on how to guarantee Article 12 rights in its domestic law:

Although some Contracting States would now regard as valid a marriage between a person in Miss Cossey’s situation and a man, the developments which have occurred to date […] cannot be said to evidence any general abandonment of the traditional concept of marriage. In these circumstances, the Court does not consider that it is open to it to take a new approach to the interpretation of Article 12 (art. 12) on the point at issue. It finds, furthermore, that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry.

On a superficial reading, nothing new happens between the Rees and the Cossey cases. But the dissenting opinions tell a different story. In Rees, there were three dissenting judges. In Cossey, there is the partly dissenting joint opinion of two judges; a different partly dissenting joint opinion of another two judges; the dissenting opinion of another three judges; and, most importantly, a lenghty dissenting opinion of the highly respected Judge Martens from the Netherlands. Martens’ dissenting opinions are legendary and he authored a book titled Martens Dissenting.

Judge Martens approaches the dissenting opinion as a chance to theorise on transsexualism as an issue with important human rights consequences. He starts with a specific section on “General Remarks on Transsexualism as a Problem of Human Rights”. In his opinion, two conditions have to be necessarily fulfilled in order to guarantee transsexuals’ human rights:

1. by means of hormone treatment and gender reassignment surgery his (outward) physical sex must be brought into harmony with his psychological sex;

2. the new sexual identity which he has thus acquired must be recognised not only socially but also legally.

It is clear how far gender ideology has travelled from this statement. Now the Court, as we shall see, would consider imposing a surgical change as a violation of the indvidual’s human rights.

But in other aspects, Martens’ dissenting opinion trods familiar grounds in gender ideology. The discrimination that they suffer is seen as caused by not accepting changing sex as a “deeply rooted taboo” as opposed to the recognition that is biologically impossible to do so; transsexuals are seen as “tragic human beings who have suffered so much” and therefore deserve full legal recognition. Martens also, as an international judge is likely to do, considers the state of development of the law in several jurisdiction, to see if one can glean a development of a common approach. In this he singles out the laws in Sweden, Germany and Italy allowing for the legal recognition of surgical sex changes.

On the basis of this assessment of foreign developments, Judge Martens concludes that:

The principle which is basic in human rights and which underlies the various specific rights spelled out in the Convention is respect for human dignity and human freedom. Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality. A transsexual does use those very fundamental rights. He is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to. After these ordeals, as a post-operative transsexual, he turns to the law and asks it to recognise the fait accompli he has created. He demands to be recognised and to be treated by the law as a member of the sex he has won; he demands to be treated without discrimination, on the same footing as all other females or, as the case may be, males. This is a request which the law should refuse to grant only if it truly has compelling reasons, for in the light of what has been said in paragraphs 2.2 and 2.4 above such a refusal can only be qualified as cruel. But there are no such reasons.

One cannot underestimate the importance of this passage. Judge Martens stresses self determination as the crucial element. This has become self identification, with the decoupling between body modification, which Judge Martens still considered the conditio sine qua non for legal recognition, and legal change of sex. And one cannot fail to notice that Judge Martens seems simply incapable of understanding that allowing a male to change his legal sex to female has consequences for third parties, especially females, so that there are reasons to refuse such recognition. He simply does not see women as being potentially affected by reconceptualising ‘woman’ in law from a human female only into a male that has surgically modified himself to resemble a female body and who lives as a woman, with all the sexist implications that this had in the late 1970s/early 1980s.

As a matter of legal analysis, Judge Martens disagrees with the Court that this is not a matter of interfence with Article 8 rights, but a demand for positive rights. In Martens’ opinion, the law preventing transsexuals to change their legal sex on the Register of Births constitutes an interference with their Article 8 rights. It is worth quoting the passage, as the privacy arguments will be picked up in the development of the jurisprudence of the Court and the legislative history of th UK, all the way to the drafting of the Gender Reassignment Act of 2004. Martens says:

Sexual identity is not only a fundamental aspect of everyone’s personality but, through the ubiquity of the sexual dichotomy, also an important societal fact. For post-operative transsexuals sexual identity has, understandably, a very special and sensitive importance because they acquired theirs deliberately, at a high cost in mental and bodily suffering. To be condemned to live, as far as that identity is concerned, in opposition to and thus “outlawed” by their country’s legal system must therefore cause permanent and acute personal distress to post-operative transsexuals in the United Kingdom. That is to say nothing of the lifelong dread to which the BSD-system [recognising bírth sex as the only legal sex] condemns them, by obliging them, every time that their sex is legally relevant, to make the painful choice between either hiding what legally is “the truth” - with all the legal consequences of such untruthfulness, such as making themselves liable to a criminal charge, dismissal or a demand for nullification of the legal act in question - or revealing that legal “truth” and facing at least the possibility of very humiliating or even hostile reactions.

In the section on Article 12, in which Judge Martens also dissents from the reasoning of the Court, there is an interesting excursus on the biology of sex:

It is true that Article 12, by speaking of “men and women”, clearly indicates that marriage is the union of two persons of opposite sex. That does not necessarily mean, however, that “sex” in this context must be interpreted as “biological sex”. Nor can it be maintained that “tradition” implies that “sex” in this context can only mean “the biological sexual constitution of an individual which is fixed at birth”. That interpretation has, therefore, to be supported by further arguments, the more so as it is far from self-evident that, when seeking a definition of what is meant by “sex” in this context, one should choose one which depends on the situation obtaining when the would-be spouses were born, rather than when they want to marry, especially as the sexual condition of an individual is determined by several factors (viz. chromosomal factors; gonadal factors; genital factors; psychological factors) nearly all of which are (more or less) capable of changing.

Only the chromosomal factor is not. But why should this particular factor be decisive? Why should an individual who - although having since birth the chromosomes of a male - at the moment he wants to marry no longer has testes or a penis but, on the contrary, shows all the (outward) genital and psychological factors of a female (and who is socially accepted as such), nevertheless, for the purpose of determining whether that individual should be allowed to marry a man, be deemed to be still a man himself? To attach so much weight to the chromosomal factor requires further explanation. That explanation, moreover, should be based on at least one relevant characteristic of marriage, for only then could it serve as a legal justification for the differentiation between the individual just described and an individual who is similar in all respects, save for having since birth the chromosomes of a female. The Court’s judgment does not offer such an explanation. Neither does the judgment in Corbett v. Corbett, which the Court seems to have espoused.

Even if, for the sake of argument, one were to adopt Mr Justice Ormrod’s view [in the Corbett case] that “sex is clearly an essential determinant of the relationship called marriage”, as well as his opinion that this is so because “the capacity for natural heterosexual intercourse” is essential for marriage, one cannot but treat both individuals referred to on the same footing as regards their fitness to marry a man: both are, as far as heterosexual intercourse is concerned, capable of performing the essential role of a woman; for that role chromosomes are completely irrelevant.

In other words, it is arbitrary and unreasonable in this context to ignore successful gender reassignment surgery and to retain the criterion of biological sex.

I do not think one has to be a rabid feminist to find distasteful that for Judge Martens “the essential role of a woman” in heterosexual intercourse is clearly to be penetrated, therefore a post-operative transsexual can fulfil that essential role.

In summary, Judge Martens considers that societal developments, as evidenced in legislative changes in several countries, should suffice for demanding that the Court departs from its own previous judgment in Rees. In Judge Martens’ words:

There is an ever-growing awareness of the essential importance of everyone’s identity and of recognising the manifold differences between individuals that flow therefrom. With that goes a growing tolerance for, and even comprehension of, modes of human existence which differ from what is considered “normal”. With that also goes a markedly increased recognition of the importance of privacy, in the sense of being left alone and having the possibility of living one’s own life as one chooses. These tendencies are certainly not new, but I have a feeling that they have come more into the open especially in recent years.

This case, which on the face of it departs little from the previous decision of the Court, contains, in the dissenting opinions, many of the arguments that will be developed in the following ten years, culminating in Goodwin v UK.

In this case also for the first time the transgender body takes centre stage, at least in the dissenting opinions. We have moved away from the clear recognition that transsexual people have a disconnect between biological and psychological sex to questioning the very idea that sex at birth is a fixed entity. The ground is laid for introducing gender identity.