Linda Grant, a 68-year-old post-operative male-to-female transsexual, complained about the lack of legal recognition of her change of sex and the refusal to pay her a retirement pension at the age applicable to other women (60). The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It observed that the applicant had been in a situation identical to that of Christine Goodwin. While it was true that the Government had had to take steps to comply with the Christine Goodwin judgment, which had involved passing new legislation, it was not the case that that process could be regarded as in any way suspending the applicant’s victim status. Following the Christine Goodwin judgment there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. The applicant did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. The applicant’s victim status had ceased when the Gender Recognition Act of 2004 had entered into force, thereby providing her with the means on a domestic level to obtain legal recognition. Consequently, she could claim to be a victim of the lack of legal recognition from the moment, after the Christine Goodwin judgment, when the authorities had refused to give effect to her claim, namely from 5 September 2002. This lack of recognition had breached her right to respect for her private life.
The applicant complained of the lack of legal recognition of her changed sex and in particular of her treatment in terms of employment and her social security and pension rights and of her inability to marry.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-operative transsexuals. “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant” (§ 93 of the judgment).
The Court also held that there had been a violation of Article 12 (right to marry and found a family) of the Convention. It was “not persuaded that it [could] still be assumed that [the terms of Article 12] must refer to a determination of gender by purely biological criteria” (§ 100). The Court held that it was for the State to determine the conditions and formalities of transsexual marriages but that it “finds no justification for barring the transsexual from enjoying the right to marry under any circumstances” (§ 103).
The case concerned the failure to introduce implementing legislation to enable a female to undergo sex reassignment surgery and change her sex identification in official documents.
The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention. While the applicant had suffered understandable distress and frustration the circumstances were not of such an intense degree, involving exceptional, life-threatening conditions, as to fall within the scope of this provision.
The Court further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Lithuanian law recognised transsexuals’ right to change not only their sex but also their civil status. However, there was a gap in
the legislation in that there was no law regulating full sex reassignment surgery. This legislative gap had left the applicant in a situation of distressing uncertainty with regard to her private life and the recognition of her “true identity.” Budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. Given the limited number of people involved, the budgetary burden would not have been unduly heavy.
The case concerned a male-to-female transsexual who, prior to his sex reassignment, had had a son with his wife in 1998. They separated in 2002 and the applicant complained of the restrictions that had been imposed by the court on the contact arrangements with his son on the ground that his emotional instability after his change of sex entailed a risk of disturbing the child, then aged six.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in conjunction with Article 14 (prohibition of discrimination) to the Convention. It found that the restriction on contact had not
resulted from discrimination on the ground of the applicant’s transsexualism. The decisive ground for the restriction imposed by the Spanish courts, having regard to the applicant’s temporary emotional instability, had been the child’s well-being. They had
therefore made a gradual arrangement that would allow the child to become progressively accustomed to his father’s sex reassignment.
Green is now imprisoned with other women in Saughton, Edinburgh, and set to have the surgery. He was initially locked up at Cornton Vale near Stirling but has been transferred to Edinburgh’s Saughton jail, where he is being kept in a women’s section. It has been claimed Green was involved in casual sexual relationships with other inmates at Cornton Vale.
An employment tribunal has rejected claims of harassment and discrimination by a transsexual police officer. PC Emma Chapman complained she had to “out” herself over a police radio system when working for Essex Police.
But the tribunal said her reaction had been “extreme” and she had been “unreasonably prone to take offence.” This description of Chapman mirrors the narcissistic rage of many transgender women when challenged about the fact that they are male.
PC Chapman, 44, was born male and underwent sex reassignment surgery 14 years ago.
Transgender Education and Advocacy, a group in which Audrey Mbugua is active, have sued the government for refusing to register the group as an international NGO. Through lawyer Colbert Ojiambo, they have named the Attorney General and the umbrella NGO co-ordination board as respondents in the case, and accuse them of discrimination and “escalating an internalised stigma amongst transsexuals.” The two parties though were conspicuously absent from the proceedings before Justice Weldon Korir at the High Court in Nairobi. The judge directed they file their responses to the suit before January 21, 2014 when the case comes for hearing. The court was told that the applicants provided all necessary documentation and paid a mandatory Sh30,000 for the registration after giving the required information, and meeting all requirements, the Attorney General’s office made a sudden change of mind and “refused to process” the registration.
All persons should have the write to form associations and lobby for their political positions. Assuming those associations meet the registration criteria, governments should recognize those associations.