BREAKING NEW GROUND IN

INTERNATIONAL LAW PROTECTING TRANSSEXUAL RIGHTS: RIGHTS INTERNATIONAL'S
AMICUS CURIAE BRIEF

IN X., Y. and Z. v. United Kingdom

In the field of sexual orientation law, the European Convention on Human
Rights1 has provided greater legal protection to individuals than most
domestic legal traditions, including US law. For example, in the area of gay
and lesbian rights, the right to privacy under Article 8 of the European
Convention has been interpreted repeatedly by the European Court of Human
Rights to extend to an adult's right to participate in private, consensual
homosexual activity. See Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser.
A) (1981) (protection extended to mutual masturbation, oral-genital contact,
and anal intercourse between adult men); Norris v. Ireland, 142 Eur. Ct.
H.R. (ser. A) (1988) (protection extended to anal intercourse between adult
men); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993) (protection
extended to carnal knowledge "against the order of nature").

In the area of transsexual rights, the European Court's record has been
mixed but promising. The European Court has examined the merits of four
cases addressing the rights of transsexuals: X., Y. and Z. v. United
Kingdom, Application No. 21830/93 (pending); Rees v. United Kingdom, 106
Eur. Ct. H.R. (ser. A) (1986); Cossey v. United Kingdom, 184 Eur. Ct. H.R.
(ser. A) (1990); and B. v. France, 232 Eur. Ct. H.R. (ser. A) (1992). In the
first two cases, Rees and Cossey, the applicants were unsuccessful in
challenging the UK government's refusal to change their birth certificates
to reflect their new gender. However, in the third case, B. v. France, the
applicant was successful. The European Court distinguished this case from
the Rees and Cossey on the basis that there would be substantial
administrative burdens imposed on the UK birth certificate system unlike the
French system which had an integrated, updatable

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
36---------------------------------------

civil status registration system. Also, the UK system had a compelling
interest in maintaining the historical accuracy of birth certificates.

Recently, the European Court has had another opportunity to address
transsexual rights in another context: parenting. This case is very
promising because the rights of two other non-transsexual applicants are
implicated, one of whom is a child. In X., Y. and Z. v. United Kingdom, the
applicants are a family. Applicant X. is a post-operative transsexual who is
the functional but non-biological father of Applicant Z., a daughter.
Applicant Y. is the biological mother of Applicant Z. Applicants X. and Y.
have been in a stable and permanent union for over fifteen years.

When Applicant Z. was born by artificial insemination, Applicant X. was
asked to be recognized as the functional and legal father. However, the UK
Government refused to recognize Applicant X.'s de facto status as the
father. After unsuccessful appeals in the UK courts, the applicants applied
to the European Commission, which found a violation of their right to
privacy and family. The parties were unable to reach a friendly settlement.
Consequently, the Commission referred the case to the European Court. The
case is now pending.

This case is particularly promising in effecting the greater recognition of
transsexual rights because the UK Government's refusal to legally recognize
a transsexual as a father impacts upon the rights of two other persons. The
mother and daughter cannot lawfully rely upon the transsexual father to
provide child support. A child living with a transsexual who is the de facto
parent does not have inheritance rights if her father should die intestate.
Also, the child cannot acquire certain benefits accruing from her parent's
citizenship.

The following amicus curiae brief was submitted to the European Court in X.,
Y. and Z. v. United Kingdom by Rights International.2 The brief analyzes how
different domestic legal traditions affect the rights of transsexuals.3 The
importance of this case extends beyond transsexual rights. A decision
favorable to the applicants in X., Y. and Z. v. United Kingdom also may
impact favorably upon parental and marriage rights of gays and lesbians in
the future. Furthermore, since transsexualism or gender dysphoria is
recognized as a psychiatric disorder, the rights of disabled persons are
also affected. Indeed, this is the first case addressing the rights of the
disabled that has come before the Court.

We hope our readership will find the following helpful.

ENDNOTES

1 The European Convention on Human Rights ("ECHR") creates binding legal
obligations on approximately thirty European nations. The European
Commission and Court of Human Rights interpret the ECHR's guarantees.
Individuals, known as "applicants," have legal standing before the European
Commission of Human Rights to challenge human rights violations after they
have exhausted domestic legal remedies. If a friendly settlement is not
reached between the Contracting State and the applicant, the European
Commission or Contracting State can refer the case to the European Court of
Human Rights. Furthermore, about fifteen European nations have ratified
Protocol No. 9 that allows applicants to refer their cases to the Court. And
eventually, the European Commission will be dismantled under Protocol No. 11
allowing all applicants to take their cases directly to the European Court.

2 Rights International, The Center for International Human Rights Law, Inc.
is an international human rights organization focussing on litigation before
international courts. For further information, e-mail Rights International
at ricenter@igc.apc.org.

3 Per the Court's instructions, Rights International did not address the
specific facts in the case.

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
37---------------------------------------

Before the

EUROPEAN COURT OF HUMAN RIGHTS

NO. 75/1995/581/667 X., Y. AND Z.,

Applicants,

---v.--- THE UNITED KINGDOM,

Respondent.

Written Comments

Submitted by

Rights International,

The Center for International Human Rights Law, Inc.

Under Rule 37 § 2 of the Rules of Court A

Francisco Forrest Martin, President Rights International, The Center for
International Human Rights Law, Inc.

600 Biltmore Way * #1117 * Coral Gables, FL 33134 * USA * Tel (305) 446-7334
P.O. Box 20337 * New York, NY 10011 * USA * Tel (212) 294-2510

E-Mail: ricenter@igc.apc.org

With the assistance of:

Ms. Hope Weiner, law student intern (Cardozo School of Law) Ms. Marguerite
Marty, law student intern (Columbia Law School)

Mr. Joel Diegleman, law student intern (Univ. of Wisconsin School of Law)
Mr. Laurence R. Helfer (Rabinowitz, Boudin, et al.)

Prof. Stephen Schnably (Univ. of Miami School of Law) Prof. Francisco Valdes
(Univ. of Miami School of Law)

TABLE OF CONTENTS

PAGE NO.

INTRODUCTION 1

I. THE LAW RECOGNIZING TRANSSEXUAL RIGHTS IS CRYSTALLIZING AS COURTS AND
LEGISLATURES ARE IDENTIFYING AND ABANDONING FALSEHOODS SURROUNDING PERSONS
WITH GENDER DYSPHORIA.

A. Law from European and Other Democratic Countries

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
38---------------------------------------

B. United States Law

1. Constitutional Guarantee of Equal Protection of the Law 2. Americans with
Disabilities Act.

3. Title VII of the Civil Rights Act of 1964. 4. State Law

II. BECAUSE DISCRIMINATORY TREATMENT AGAINST TRANSSEXUALS IS BASED ON
SUSPECT DISABILITY AND GENDER CLASSIFICATIONS, STATE-PARTIES SHOULD ENJOY
ONLY A NARROW MARGIN OF APPRECIATION IN LIMITING TRANSSEXUAL PARENTAL
RIGHTS.

III. THE ISSUE OF PARENTAL RIGHTS OF TRANSSEXUALS SHOULD BE EXAMINED IN
LIGHT OF WHETHER A STATE'S DOMESTIC LEGAL ORDER IS IN LINE WITH THE DOMESTIC
LAW OF OTHER EUROPEAN STATES AND WHETHER IT IS DEVELOPING WITHIN THE
DISCIPLINE OF EUROPEAN CONVENTION LAW.

A. It is Necessary to Consider Whether a State-Party's Internal Legal Order
Incorporates Strasbourg Law to Ensure a Coherent European Consensus and
Unity.

B. It is Necessary to Examine Whether a State-Party's Internal Legal Order
Incorporates Strasbourg Law in Order to Avoid Additional Harms Accruing to
Other Associated Rights.

C. Effective Operation of Margin of Appreciation Doctrine Requires
Consideration of the United Kingdom's Non-Incorporation of Strasbourg Law.

CONCLUSION

INTRODUCTION

Pursuant to Rule 37 § 2 of the Rules of Court A, Rights International, The
Center for International Human Rights Law, Inc. ("RI"), submits these
written comments having received permission from the President of the
Chamber, Mr. R. Bernhardt, by letter dated 9 May 1996 from the Deputy
Registrar of the Court, Mr. Paul Mahoney. In compliance with the European
Court's directions, RI's comments will "be confined to the laws and
jurisprudence of various European and other democracies on the extent to
which transsexuals are permitted to gain and exercise parental rights."

I. THE LAW RECOGNIZING TRANSSEXUAL RIGHTS IS CRYSTALLIZING AS COURTS AND
LEGISLATURES ARE IDENTIFYING AND ABANDONING FALSEHOODS SURROUNDING PERSONS
WITH GENDER DYSPHORIA.

From the outset, Amicus notes that there is no international and little
domestic law strictly about the rights of transsexuals to exercise parental
rights in part because of misunderstanding and prejudice about the condition
of gender dysphoria in general. Transsexuals face systemic adverse
discrimination in a wide variety of contexts. In the face of this widespread
discrimination, there is an emerging trend to ameliorate their condition
vis-a-vis the law.

Issues surrounding parental rights usually are settled according to the
child's best interest. 2 CORPUS JURIS SECUNDUM, Adoption of Persons, §49.
"In determining custody, the primary considerations are the best interests
and welfare of the child. . . . In determining the best interest of the
child, the court considers several factors, such as the conduct of the
parent in meeting the responsibility of establishing a significant
relationship with the child and of providing for the child. In connection
with this determination, the court may consider the fact that one of the
natural parents gave consent to an adoption by a third party as evidence of
that party's parental attitude." 14 CORPUS JURIS

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
39---------------------------------------

SECUNDUM, Children, §34. Amicus will examine transsexual rights in different
contexts in order to suggest how the Court should approach transsexual
parental rights in particular.

A. Law from European and Other Democratic Countries

Several individual European states already have domestic legislation or
case-law recognizing gender reassignment on civil status documents. Five
European states have legislation allowing gender reassignment: Sweden (Law
of 21 April 1972), Germany (Law of 10 September 1980), Italy (Law of 14
April 1982), the Netherlands (Law of 14 April 1985), and Turkey (Art. 2, Law
of 12 May 1988). H. Delvaux, Legal Consequences of Sex Reassignment in
Comparative Law, in TRANSSEXUALISM, MEDICINE AND LAW, Proceedings from 23rd
Colloquy on European Law, Vrije Universiteit Amsterdam 14-16 Apr. 1993
(1995) (hereinafter, TML) 75, 81. Under former Czechoslovakian law, (Law No.
20/1966), treatment for gender dysphoria was allowed; as of 1993, the new
Czech Republic was incorporating provisions of this former law into more
detailed legislation. Id. at 158.

Prof. Doek has noted the legal implications of such legislation: the
legislation does not change law concerning child custody, child support, and
inheritance. J. Doek, General Report, in TML, 203, 218. Most importantly,
Prof. Doek notes that this legislation implicitly recognizes the right to
marry and to adopt children. Id. at 219. Indeed, German law expressly allows
a transsexual to remain in their marriage. Under German law, not only can
persons who do not undergo gender reassignment legally change their name
while remaining married, a post-operative transsexual can have their civil
status documentation changed and also marry. M. Will, Legal Conditions of
Sex Reassignment by Medical Intervention -- Situation in Comparative Law, in
TML. Polish law appears also to allow transsexuals to marry. "Second Ever
Transsexual Couple Weds in Poland," Polish Press Agency, 31 August 1992
(cited in newspaper, ZYCIE WARSZAWY).

Besides legislation, courts in Belgium, Spain, France, Poland, Portugal, and
Switzerland have allowed gender reassignment on birth registers. Will,
supra, at 90; Doek, supra, at 219. Under Greek case-law, alteration of civil
status regarding gender for hermaphroditism is allowed after an operation.
Delvaux, supra, at 161. In Finland, the Supreme Administrative Court
recognized gender reassignment as reflected in a transsexual's social
security documents. Will, supra, at 82. And, Romania has allowed gender
reassignment surgery. See "Romania: Romania Court Clears Transylvanian Sex
Change," Reuters News Service, 19 April 1995 (cited in newspaper, TINERETUL
LIBER) (Romanian court regarded transsexualism as disability requiring sex
reassignment).

In the United Kingdom, strikingly enough, a Court of Appeal in 1981 allowed
a transsexual visitation rights with his daughter. G. v. G. (1981) 11 Family
Law 149 (CA) (1981). However, the Court of Appeal held that if, when
visiting with his daughter, he "dressed in a way which [was] bizarre or
aggressively feminine . . . it will be shown that his appreciation of the
child's welfare [was] defective." Id. at 49 (cited in D.C. Bradley:
Transsexualism -- Ideology, Legal Policy and Political Culture," in TML, at
64).

European regional law increasingly is recognizing the rights of transsexuals
in general. The European Court of Justice just recently extended sex
discrimination to cover transsexuals in the context of employment, holding
that "to tolerate such discrimination would be tantamount . . . to a failure
to respect the dignity and freedom to which he or she is entitled, and which
the Court has a duty to safeguard." Case C-13/94, P. v. S. and Cornwall
County Council, Eur.Ct.Justice, Judgment of 30 April 1996 at 22 (slip
opinion). And, the Parliamentary Assembly of the Council of Europe has
recommended the introduction of legislation giving legal recognition to
gender reassignment. Recommendation No. 1117 on the Condition of
Transsexuals (29 Sept. 1989). The European Parliament also has called upon
the Council of Europe to enact a convention for protecting transsexuals.
Resolution on Discrimination Against Transsexuals. Doc A3-16/89, OJ No C
256, 9 Oct. 1989. And, this Court's jurisprudence appears to be moving
towards a greater recognition of the rights of transsexuals as reflected in
the narrowing vote margins of the Court. See Rees v. United Kingdom, 106
Eur.Ct.H.R. (ser. A) (1986) (12-3 vote against finding birth registration
system incompatible with Art. 8); Cossey v. United Kingdom, 184 Eur.Ct.H.R.
(ser. A) (1990) (10-8 vote against finding birth registration system
incompatible with Art. 8); B. v. France, 232 Eur.Ct.H.R. (ser. A) (1992)
(15-6 vote

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
40---------------------------------------

for recognition of new gender in integrated, updatable civil status
registration system).

Canadian law allows the change of forename and other aspects of civil
status. Arts. 71-74, Civil Code of Québec of 1991. Delvaux, supra, at 158.
South Australian law authorizes gender reassignment treatment and surgery as
well as allows the modification of civil status documents. Sexual
Reassignment Act, No.49 (1988) (S. Austl. Stat.).

B. United States Law

Compared to European domestic and regional law, US legislators and judges
historically have embedded myths and hostility towards transsexuals into US
law, as discussed below.

1. Constitutional Guarantee of Equal Protection of the Law

The Fourteenth Amendment to the US Constitution guarantees equal protection
of the law. Discrimination against transsexuals implicates two types of
discrimination: gender and disability. Therefore, Amicus will examine the
law governing disability and gender discrimination.

The US Supreme Court has held that governmental discrimination on the basis
of disability need only meet the requirements of a minimal rational basis
test. City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432
(1985). In Cleburne, the US Supreme Court held discrimination on the basis
of handicap will be presumed to be valid if it is rationally related to a
legitimate governmental interest. In applying a minimal rational basis test
to disability discrimination, the US Supreme Court based its decision on the
fact that this discrimination had been motivated by a protective concern for
mentally retarded persons.

[T]he distinctive legislative response, both national and state, to the
plight of those who are mentally retarded demonstrates not only that they
have unique problems, but also that the lawmakers have been addressing their
difficulties in a manner that belies a continuing antipathy or prejudice and
a corresponding need for more intrusive oversight by the judiciary.

Id. at 443. It is important to note that the reasoning in Cleburne thus does
not support the application of the rational basis test to discrimination
toward people with gender dysphoria, since unlike much discrimination toward
the mentally retarded, discrimination against people with gender dysphoria
is not paternalistic or protective. "[I]f 'equal protection of the laws'
means anything, it must at least mean that a bare . . . desire to harm a
politically unpopular group cannot constitute a legitimate governmental
interest." Romer v. Evans, 64 U.S.L.W. 4353, 4356 (U.S. 21 May 1996)
(striking down state law prohibiting civil rights for gays and lesbians).
Furthermore, Cleburne makes evident that government discrimination against a
group can fail even under the minimal rational basis test. City of Cleburne,
Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (lack of rational
basis for requiring special use permit for home for mentally retarded held
violative of Equal Protection guarantee).

Gender discrimination must meet the more difficult requirements of a
"heightened rational basis test:" viz, legislative classifications based on
gender must be substantially related to a sufficiently important
governmental interest. Craig v. Boren, 429 U.S. 190 (1976). Like disability
discrimination, gender discrimination historically has been paternalistic --
not necessarily motivated by malice. However, as the US Supreme Court noted
in Frontiero v. Richardson, 411 U.S. 677 (1973), even paternalistic
discrimination can be just as harmful as malicious discrimination:
"Traditionally, [gender] discrimination was rationalized by an attitude of
'romantic paternalism' which, in practical effect, put women not on a
pedestal, but in a cage." Id. at 684.

Unlike much of both gender and disability discrimination in general,
discrimination against transsexuals has been irrational and malicious, and
adverse discriminatory use of such a class is suspect.

Examples of suspect classifications include racial and ethnic
classifications. A suspect class generally has the following
characteristics: a history of purposeful adverse discrimination, prejudice
unrelated to performance, a defining innate or immutable characteristic of
its members, and/or a lack of political

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
41---------------------------------------

power. As a class, transsexuals share all these characteristics, as
discussed in the cases below.

Suspect classifications must receive strict judicial scrutiny. The "strict
scrutiny test" traditionally is formulated as requiring a narrowly tailored
means to achieve a compelling state interest. Cleburne, 473 U.S. at 440. To
be narrowly tailored requires that the means is neither under-inclusive nor
over- exclusive in obtaining the proffered governmental goal. As discussed
in Cleburne, suspect classifications are so seldom related to a legitimate
state interest that laws based on them are presumed to be motivated by
antipathy, malice, and prejudice. Therefore, Amicus argues that as a matter
of principle, a strict scrutiny test should be applied against
discrimination against transsexuals.

US federal constitutional law now is beginning to reflect a more correct
understanding of transsexualism. In a case last year, Brown v. Zavaras, 63
F.3d 967 (10th Cir. 1995), a US Court of Appeals examined the failure of
prisons to provide hormone treatments to transsexual prisoners. The
plaintiff challenged the prison's failure on the basis that this failure was
unlawful discrimination on the basis of sex. The Appeals Court looked at
previous discrimination cases dealing with transsexuals. In one case,
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977), a Court of
Appeals had held that transsexuality did not meet "traditional indicia of a
suspect classification because transsexuals are not a discrete and insular
minority, and because the plaintiff did not establish that "'transsexuality
is an immutable characteristic determined solely by the accident of birth'
like race, or national origin." Id. at 971 (quoting Holloway v. Arthur
Andersen & Co., 566 F.2d at 663). However, the US Court of Appeals in Brown
v. Zavaras observed that "[r]ecent research concluding that sexual identity
may be biological suggests reevaluating Holloway." Id. at 971. 1 Although
the Zavaras court did not find transsexuals a suspect class, it declined to
do so because the plaintiff's allegations were too conclusory to allow a
proper equal protection analysis. The Court, however, did find a violation
of the constitutional right against cruel and unusual punishment. See also
Phillips v. Michigan, 731 F.Supp. 792 (W.D.Mich. 1990) aff'd 932 F.2d 969
(6th Cir. 1991) (same).

2. Americans with Disabilities Act.

The Americans with Disabilities Act ("ADA") prohibits disability
discrimination; however, Congress expressly excluded "transsexualism" from
the ADA's coverage. How members of Congress incorrectly understood gender
dysphoria is best reflected by noting with what other excluded disorders
Congress placed gender dysphoria. The ADA lumped pedophilia, exhibitionism,
voyeurism, and transvestism together with gender dysphoria. 42 U.S.C.
§12211(b). In light of the substantial consensus among the
medical/psychiatric communities, 2 Congress' exclusion of gender dysphoria
strongly suggests that the exception was motivated more by irrational
prejudices than appropriate social policy concerns.

Indeed, legal scholars have criticized Congress' exception of gender
dysphoria. See e.g., A. Hegel, The ADA as a Moral Code, 94 COLUM L. REV.
1451 (1994) (ADA effectively identifies sexual "deviant" as new pariah).
Most significantly, Sen. Jesse Helms, who has consistently opposed anti-
discrimination legislation, led the Senate forces in successfully excluding
gender dysphoria from the ADA's coverage. Despite the contrary findings of
the American Psychiatric Association, Sen. Helms stated that transsexualism
as well as other sex-related differences were, " 'moral problems, not mental
handicaps;' that they are 'addictions' with 'moral content' whose presence
might render an individual unfit for working life." Id. at 1476-77 (citing
134 CONG. REC. 2401 (daily ed. 17 March 1988)).

3. Title VII of the Civil Rights Act of 1964

Title VII prohibits sex discrimination in employment. In nearly every Title
VII case involving transsexualism, the court either failed to acknowledge
that gender dysphoria was a legitimate medical and psychiatric disability or
failed to recognize the current gender of a post-operative transsexual. See
e.g., Ulane v. Eastern Airlines, Inc. 742 F.2d 1081 (7th Cir. 1984), cert.
denied, 471 U.S. 1017 (1985) (Title VII definition of "sex" does not include
transsexualism); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir.
1982) (same); Holloway v. Arthur Anderson & Co., 566 F.2d 659 (9th Cir.
1977) (transsexualism considered sexual orientation -- not gender status).
In these and other Title VII cases, judges incorrectly conflated sex,
gender, and sexual orientation, which lead to unnecessary, non- principled,
underinclusive, and unjust results. F.Valdes, Queers, Sissies, Dykes, and
Tomboys:

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
42---------------------------------------

Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation"
in Euro-American Law and Society, 83 CAL. L. REV. 1 (1994).

4. State Law

Thirteen states expressly allow changes for gender reassignment on birth
registrations: Alabama, Arizona, California, Hawaii, Illinois, Louisiana,
Maryland, Michigan, New Jersey, North Carolina, Pennsylvania, Virginia, and
Texas. Will, supra, at 81. Only Tennessee and Ohio do not. Remaining states
approach the issue by means of case or administrative law. In the area of
family law, a New Jersey state court held that a marriage between a man and
a post-operative female transsexual was valid. M.T. v. J.T. , 140 N.J.
Super. 77 (1976) (rejecting Corbett holding that biological sex is "fixed at
birth" and immutable).

In the area of child custody, two states have reached different conclusions.
In Colorado, the Appellate Court in Christian v. Randall, 33 Colo. App. 129,
516 P.2d 132 (1973) reversed a lower court ruling that had withdrawn child
custody from a pre-operative transsexual. The court stated that in
determining the best interests of the child, "the court shall not consider
the conduct of a proposed custodian which does not affect his relationship
with the child." Id., at 134 (citation omitted). The Appellate Court held
that in view of the stability of the relationship that the transgendered
parent had maintained with the child, transsexualism could not be used to
withdraw custody.

In Daly v. Daly, 715 P. 2d 56 (Nev. 1986), cert. denied, 479 U.S. 876
(1986), a mother successfully sought to terminate custody rights of her
child's father, who had undergone gender reassignment surgery. The Nevada
Supreme Court cited the child's "revulsion" over her father's new gender.
Id. at 59. It also cited the supposed problems inflicted upon the child by
the father's unusual choice, having heard testimony from psychological
expert that there would be a "risk of serious maladjustment, mental, or
emotional injury [to the child]." Id. at 63. Accordingly, the court held
that termination of her father's visitation rights was permissible.

However, the strong dissenting opinion argued that there was insufficient
showing of clear and convincing evidence that the parental rights should be
terminated. Mr. Justice Gunderson pointed out that expert concluded the risk
to the child would occur "only if visitation was forced upon Mary." Id. at
63 (emphasis provided). Yet, the majority, ignoring both the legal position
of the father as well as the facts, concluded there would be a risk of harm
to the child "if visitation were permitted." Id. at 63 (emphasis provided).
Mr. Justice Gunderson also stated in his dissent:

the fact that the appellant father has suffered emotional problems which are
foreign to the experience of this court's members . . . does not justify a
total and irrevocable severance of appellant's formal legal tie to a child
he cares about and desires to help nurture. By holding that such a severance
is justified in these facts, it seems to me, we are being unnecessarily and
impermissibly punitive to the exercise of a medical option we personally
find offensive, thereby depriving a child of a legal relationship which
might well be to the child's advantage in the future.

715 P. 2d at 64 (Gunderson, J. dissenting) (emphasis provided).

II. BECAUSE DISCRIMINATORY TREATMENT AGAINST TRANSSEXUALS IS BASED ON
SUSPECT DISABILITY AND GENDER CLASSIFICATIONS, STATE- PARTIES SHOULD ENJOY
ONLY A NARROW MARGIN OF APPRECIATION IN LIMITING TRANSSEXUAL PARENTAL
RIGHTS.

The European Court has stated that it "is conscious of the seriousness of
the problems facing [transsexuals] and the distress they suffer." Rees v.
United Kingdom, 106 Eur.Ct.H.R. (ser. A) at § 47 (1986). Persons with gender
dysphoria face not only emotional suffering because of their dysphoria but
also social ostracization. As Judge Martens has observed,

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
43---------------------------------------

The endeavours of transsexuals to obtain legal recognition of what they feel
as their attaining the sex to which they have always belonged have, however,
often met with a marked aversion on the part of the authorities. It seems
that the transsexual's attempts to 'change sex' infringe a deeply rooted
taboo. At any rate, the first reactions of authorities as well as of courts
have been almost instinctively hostile and negative.

The United Kingdom decision in . . . Corbett v. Corbett . . . well
illustrates this tendency: using terms which scarcely veil his distaste and
basing himself on reasoning which has been severely criticised by various
legal writers, the learned judge simply refused to attach any legal
relevance to reassignment surgery. The reactions of the highest courts in
other countries have not been more helpful.

Cossey v. United Kingdom, 184 Eur.Ct.H.R. (ser. A) at § 2.5 (Martens, J.
dissenting). Accordingly, the European Parliament has stated its regret that
"transsexuals everywhere are still discriminated against, marginalised and
sometimes even criminalised." Resolution on Discrimination Against
Transsexuals. Doc A3-16/89, OJ No C 256, 9 Oct. 1989 (as cited in M.
Killerby, Speech, in TML, 13, 15.); see also F. Valdes, supra (discussing
social and legal antipathies towards transsexualism in the US).

The members of this Court, the European Court of Justice, and the domestic
law of several European countries have evidenced great sensitivity to the
plight of transsexuals. US legislators and judges generally have not --
although this now appears to be changing. Inasmuch as the European Court of
Justice has held discrimination against transsexuals is a form of sex
discrimination in P. v. S. and Cornwall County Council and this Court has
held that heightened judicial scrutiny must be applied to sex-based
classifications in Abdulaziz, Cabales and Balkandali, 94 Eur.Ct.H.R. (ser.
A) (1985), this Court should at the very least apply a heightened scrutiny
test to discrimination against transsexuals. Given the social and legal
reality of discrimination against transsexuals caused by ignorance and/or
malice, it would be more appropriate as a general principle to use a narrow
margin of appreciation (or "strict scrutiny test," as in US law) -- a
fortiori in cases where other fundamental ECHR rights, such as the Article 8
right to respect for family life, are implicated. 3

Governments should not use suspect classifications -- even to protect a
child from possible harmful effects of bigotry as a means of ensuring the
child's best interests. In Palmore v. Sidoti, 466 U.S. 429 (1984), a
divorced father tried to take custody of his daughter away from her mother
after the mother began cohabiting with an African-American. Under an equal
protection analysis, the US Supreme Court rejected the state's interest in
preventing possible harmful effects arising from the child's living in a
racially-mixed household.

The question . . . is whether the reality of private biases and the possible
injury they might inflict are permissible considerations for removal of an
infant child from the custody of its natural mother. We have little
difficulty concluding that they are not. The Constitution cannot control
such prejudices but neither can it tolerate them. Private biases may be
outside the reach of the law, but the law cannot, directly or indirectly,
give them effect. "Public officials . . . may not avoid a constitutional
duty by bowing to the hypothetical effects of private racial prejudice . . .
."

Id. at 433. As in the case of using racial prejudice, the state's interest
in preventing possible harm to a child arising from societal hostility
towards transsexuals is illegitimate.

III. THE ISSUE OF PARENTAL RIGHTS OF TRANSSEXUALS SHOULD BE EXAMINED IN
LIGHT OF WHETHER A STATE'S DOMESTIC LEGAL ORDER IS IN LINE WITH THE DOMESTIC
LAW OF OTHER EUROPEAN STATES AND

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
44---------------------------------------

WHETHER IT IS DEVELOPING WITHIN THE DISCIPLINE OF EUROPEAN CONVENTION LAW.

This Court repeatedly has declared that there is no legal obligation to make
the ECHR part of domestic law. R. Bernhardt, "The Convention and Domestic
Law," THE EUROPEAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS 25, 29 (R. St.
J. Macdonald et al. eds., 1993). However, this issue is different from the
Court's obligation to provide effective European supervision in determining
the appropriate margin of appreciation to be enjoyed by state-parties. To
ensure a democratic society and legal order, the internal legal order of a
state-party must be able to check (through constitutional or other
mechanisms) the tyranny of majorities exercising their will at the expense
of vulnerable minorities.

"[D]emocracy does not simply mean that views of a majority must always
prevail: a balance must be achieved which ensures the fair an proper
treatment of minorities and avoids any abuse of a dominant position." Young,
James and Webster v. United Kingdom, 44 Eur.Ct.H.R. (ser. A) (1980) at §63.
Absent such checking mechanisms, it appears appropriate for the European
Court to apply a narrower margin of appreciation. As suggested below,
non-incorporation of Strasbourg law can impact upon the rights of
transsexuals to exercise parental rights.

A. It is Necessary to Consider Whether a State-Party's Internal Legal Order
Incorporates Strasbourg Law to Ensure a Coherent European Consensus and
Unity.

The margin of appreciation doctrine allows a state-party to enjoy a wide
margin where the laws of state-parties are divergent on a particular
subject. In allowing a state-party to enjoy a wide margin in such cases,
this doctrine creates a reasonable expectation that as a state-party
develops its particular institutions and practices in adaptation to its
particular social conditions, these institutions and practices will be
developed in a manner responsive to, if not governed by, ECHR law and this
Court's concerns. European unity as professed in the ECHR Preamble
necessitates this presumption.

[T]he preamble to the European Convention, which recalls the aim of
achieving greater unity between member States and stresses that Fundamental
Freedoms are "best maintained" by a "common understanding and observance of
. . . Human Rights," seems to invite the Court to develop common standards .
. . in such a larger, diversified community the development of common
standards may well prove the best, if not the only way of achieving the
Court's professed aim of ensuring that the Convention remains a living
instrument.

Cossey v. United Kingdom, 184 Eur.Ct.H.R. at 28 (Martens, J., dissenting).

If a state-party's internal legal order does not incorporate ECHR law, then
the state-party's institutions and practices are likely to be substantially
less responsive to this Court's concerns as compared to other state-parties
incorporating ECHR law. "It is obvious that [for incorporating states] the
influence of Strasbourg case-law is far more important than in those
countries where the Convention has only the status of international law." J.
Polaciewicz & V. Jacob-Foltzer, The European Convention on Human Rights in
domestic law: The impact of the Strasbourg case-law in States where direct
effect is given to the Convention (first part), 12 H.R.L.J. 65, 66 (1991).
Government officials in non-incorporation states lack incentives for
developing a domestic legal order consistent with ECHR law -- unless faced
with a case-challenge before the European Commission or Court of Human
Rights. If the internal legal order of one state-party is not developing
within the discipline of Strasbourg law, then its domestic law may develop
along a divergent path from other state-parties that do incorporate ECHR
law.

As noted in Part I, there is a growing consensus among European states and
regional institutions toward recognition of greater rights for transsexuals.
See L. Helfer, Consensus, Coherence and the European Convention on Human
Rights, 26 CORNELL INT'L L. J. 133 (1993) (discussing

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
45---------------------------------------

consensus issue as applied to transsexual rights issues). Accordingly, a
narrower margin of appreciation is warranted in cases where a state-party's
internal legal order has not developed along the lines of the domestic law
of other European states. Furthermore, given that consensus development is
essential to determining the appropriate margin of appreciation, it is
important to consider whether the state-party incorporates ECHR law.

B. It is Necessary to Examine Whether a State-Party's Internal Legal Order
Incorporates Strasbourg Law in Order to Avoid Additional Harms Accruing to
Other Associated Rights.

Besides posing an obstacle to consensus development, allowing a
non-incorporation state-party to enjoy a wide margin of appreciation, can
endanger other rights. ECHR law serves to limit harms to other rights
associated with a case. This problem is made clearer where a narrow margin
of appreciation is enjoyed. For example, in the Article 6(1) area of
prisoner legal access where state- parties are given a narrow margin of
appreciation, the European Court and Commission have found repeated
violations by the UK of not only identical rights but also associated
rights, such as those guaranteed by Article 8. See e.g., Golder v. United
Kingdom, 18 Eur.Ct.H.R. (ser. A) (1975) (denial of access to solicitor
through mail and meetings violated Art. 6(1)); Hilton v. United Kingdom,
Application No. 5613/72, Eur.Cm.H.R., 3 EHRR 104 (1981) (denial of access to
solicitor); Silver v. United Kingdom, 61 Eur.Ct.H.R. (ser. A) (1983) (Art.
6(1) and 8 violations for stopping mail between solicitor and prisoner);
Campbell and Fell v. United Kingdom, Eur.Ct.H.R. (ser. A) (1984) (associated
right to privacy of meetings violated Arts. 6(1) and 8). When a
non-incorporation state-party repeatedly violates the same or associated
rights, this suggests that non-incorporation itself encourages harms to
associated rights. It also suggests that non-incorporation can lead to an
unnecessary taxing of the Court and Commission's resources by causing
unnecessary litigation.

Accordingly, giving a wide margin of appreciation to state-parties who do
not incorporate ECHR law into their domestic legal orders not only poses
obstacles to the development of European consensus but it also fails to
discourage harms to other rights. European supervision should operate in
such a manner so that no one state-party acquires advantages over other
state-parties because of its peculiar internal legal order; this is
particularly important when the advantage of receiving a wide margin of
appreciation results in the detriment of fundamental rights recognized by
the ECHR, such as the right to respect for family life and, specifically,
the exercise of parental rights.

C. Effective Operation of Margin of Appreciation Doctrine Requires
Consideration of the United Kingdom's Non-Incorporation of Strasbourg Law.

Three of the five European Court cases challenging a state-party's failure
to recognize transsexual rights have come from the United Kingdom. Two of
the these three cases dealt with the Article 8 right to alter one's own
birth certificate. The instant case addresses an associated Article 8 right
to indicate the de facto parent on a birth certificate. Since there is no
reason to believe that there are a disproportionate number of transsexuals
in the UK generating cases, this phenomenon suggests that the UK's internal
legal order should be examined because (i) wide margins of appreciation have
been allowed previously and (ii) the UK does not incorporate ECHR law into
its domestic law.

Under UK domestic law, Parliament is presumed to legislate in accordance
with international law. A. Clapham, HUMAN RIGHTS IN THE PRIVATE SPHERE, at
24 (1993). When a statute is in opposition to a treaty, the statute must
prevail. When UK judges have used Strasbourg law, it has been used as an aid
to statutory interpretation and only where governing law is
"straightforward," as reflected in domestic and international law. An
example is ex post facto criminal legislation Id.; see e.g., Regina v. Miah,
1 W.L.R. 683 (1974) (first use of ECHR in regard to retrospective criminal
legislation). In another case, Derbyshire County Council v. Times Newspapers
Ltd. and Others, 1 ALL ENGLAND REPORTS 1011 (1993), the UK Court of Appeals
addressed the issue of whether a newspaper can be held liable for publishing
articles critical of government entities. While the Court of Appeals used
Article 10 as the principal reference for its reasoning -- rather than mere
secondary support -- the House of Lords found no need to refer to the ECHR
and upheld the decision under the common law of England. Id. at 1021. Note
also that the case hardly addressed a controversial legal

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
46---------------------------------------

issue from an international law point of view. See Schwabe v. Austria, 242-B
Eur.Ct.H.R. (ser. A) (1993) (criticism of politician); Castells v. Spain,
236 Eur.Ct.H.R. (ser. A) (1992) (criticism of government); Oberschlick v.
Austria, 204 Eur.Ct.H.R. (ser. A) (1991) (criticism of politician); Lingens
v. Austria, 103 Eur.Ct.H.R., (ser. A) (1986) (criticism of politician);
Report on the Compatibility of "Desacato" Laws with the American Convention
on Human Rights, Inter-Am. C.H.R. 1994 at 197, OEA/ser. L./V./11.88, doc.9
rev. (Feb. 17, 1995).

It is insufficient that highly-placed government officials, such as Law
Lords or the Home Secretary, provide assurances that English law will not
violate the Convention. It is doubtful that such good intentions can filter
down to those persons responsible for enforcing or interpreting English law
consistent with ECHR law in the absence of more effective controls. It is
much less comforting when sixty-six Parliament members vote for a bill aimed
at giving Parliament the right to overrule European regional Court rulings.
See T. Shaw & G. Jones, "Transsexual Wins Euro Court Case," THE DAILY
TELEGRAPH, 1 May 1996, at 1. To allow the police, bureaucrat, or trial judge
a wide margin of appreciation is an ineffective means of allowing law that
is in transition to develop in a fashion consistent with the values of the
European community.

Amicus is not arguing that the UK's internal legal order or any other
non-incorporation state (viz., Denmark, Iceland, Ireland, Norway, and
Sweden) is inherently incompatible with the regimen of the ECHR, 4 nor that
non-incorporation is wholly dispositive of determining the appropriate level
of deference to be given national authorities. The peculiar characteristics
of a country's legal culture should be respected as a reflection of the
peculiar social, economic, and political conditions obtaining in that
country. 5 Indeed, Amicus recognizes the important contributions that
English law has made to the protection of human rights.

Nevertheless, in order for the European Court's margin of appreciation
doctrine to function effectively, the Court should take into consideration
whether a state-party's domestic legal order minimalizes the possibility of
additional harms to associated rights and promotes European consensus and
unity. This consideration is especially compelling given the fact that the
European Court cannot order state-parties to alter their domestic
legislation.

CONCLUSION

It appears inevitable that as societal ignorance about gender dysphoria is
eliminated that a person's ambiguous gender status will become less
relevant. This Court can take a courageous stand with this sorely
misunderstood group of people and further break down societal ignorance by
recognizing disabled persons' rights and duties as parents.

Respectfully submitted, Dated: 28 June 1996

_________________________________ Francisco Forrest Martin, President

ENDNOTES

1 Indeed, in 1981 the French Regional Court of Toulouse in referring to
researchers' discovery of a tissual antigen, recognized gender change as
resulting from irreversible pre-existing factors as well as therapeutical
surgery. According to Delvaux, many courts have recently accepted that
gender change is "not the result of the intention of the person concerned,
who is constrained by innate characteristics to undergo treatment and
operations." Delvaux, supra, at 163.

2 See e.g., American Psychiatric Association, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS (4th ed. 1994).

3 In previous cases dealing with gender dysphoria, the European Court was
not faced with a family of applicants.

4 The mere formal incorporation of ECHR law also can be insufficient, as
evidenced by the Italian Government's repeated failures to conform its
criminal procedures to the requirement of Articles 5 and 6, and the
dilatoriness of its proceedings. J. ------------National Journal of Sexual
Orientation Law, Vol. 3, Issue 1 ------------
---------------------------------END PAGE
47---------------------------------------

Polaciewicz & V. Jacob-Foltzer, supra, at 84.

5 In the US under its federal scheme of government, states are seen as
important laboratories for testing social policy and developing law which is
in transition. Nevertheless, even federal-state comity interests recognize
that the US Constitution, federal statutory laws, and treaties are the
"supreme law of the land." U.S.Const. art. 6(2). Therefore, this federal
constitutional law is given direct effect by the states.

------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1
------------ ---------------------------------END PAGE
48---------------------------------------

write the editor
back to our home page