“The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment.
The court in effect acknowledged that gender re-assignment was a surgery practice affirmed by the state. The “4 steps” pre-surgery treatment (reffered to in Bellinger) was affirmed and supervised by state as well. The ongoing psychological and medical debates to the nature of “as to the exact causes of the condition” are no longer relevant for the case. Gender re-assignment decision and the emplementation of that decision, is ‘no fancy’ but a serious choice and great responsibility.
Thus, “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable” . The apparent discrepancy between authrization of the treatment by the state ( to include assistance in financing the operations) and rufusal to recognize the “legal implication of the result to which that treatment leads” espouses the difficulties in gender definition.
In Corbett there was proposed a sex determination test through chromosomes, gonads and genitals. The convergence of all three results affirms the sex of a person. At that time it was apparent that sex is determined at birth and once for all times. Within Corbett approach it was virtually impossible for the person to change sex because chromosomes structure is immune to artificial changes. Person was bound to be of a sex determined at birth notwithstandind his or her personal identity, self-apprehension and look.
ECHR proved the Corbett approach to be insufficient and discriminatory in that it does not takes a full acount of personal identity and psychological factors. The recognition of full legal status accorded to post-operative transsexuals would demonstrate respect for the dignity of each individual as a human being, otherwise doing would impair the sense of identity and cause a great personal stress.
In compliance with “proportionality test” logics it was stated that on the basis that “no concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals” and “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. ” ECHR demands that a “new” sex was recognized for all legal purposes (with reservation for marriage question).
In practical terms, government should provide a full legal recognition of person in his or her ‘new’ social role unless substatial detriment to public interest. If the detriments found in some area the legal status may not be recognised in that area only. In fact, the ECHR acknowledged that UK failed to protect the right provided in article 8 of the European Convention on Human Rights and that the ligislation of UK is discriminatory towards persons who undergone sex ressignment treatment.
The approach resembling that of “proportionality test” was adopted. The only difference is that the breach of human rights provided in the Convention was apparent though the structure stating that “no concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals” likewise apparently reveals that the balancing against the rights of the other members to society was in place.
Apart from stating the nature of approach ECHR treated the case by, it is worth to note the practical outcomes of the case. The three such outcomes summarised in Bellinger : The interdepartmental working group on transsexual people had been reconvened. The government announced its intention to bring forward primary legislation which will allow transsexual people who can demonstrate they have taken decisive steps towards living fully and permanently in the acquired gender to marry in that gender.
The third development was that before your Lordships’ House counsel for the Lord Chancellor accepted that, from the time of the Goodwin decision, those parts of English law which fail to give legal recognition to the acquired gender of transsexual persons are in principle incompatible with articles 8 and 12 of the Convention. Domestic law, including section 11(c) of the Matrimonial Causes Act 1973, will have to change. Mrs. Bellinger went through a legal ceremony of marriage in May 1981 having undergone sex re-assignment treatment in Fabruary earlier that year.
The main issue was to identify whether at the moment of her entering into marriage she could be qualified as a woman for the purpose of the Matrimonial Causes Act 1973, section 11(c) of which provides that a marriage is void unless the parties are ‘respectively male and female’ (Bellinger para 1) After the court refused to make a declaration that marriage “was valid at its inception and is subsisting”, appelant, in a alternative claim, seeks a declaration that section 11(c) of the Matrimonial Causes Act 1973 is incompatible with articles 8 and 12 of the European Convention on Human Rights which provide the right to privacy and family life and the right to marry and to found a family respectively. The main reason why Mrs. Bellinger’s marriage was not found valid was that “there must be some objective, publicly available criteria by which gender reassignment is to be assessed. ” and the court cannot at present with an adequate degree of certainty point were this line is within the broad context of national and international law. Further, “where this line should be drawn is far from self-evident” and Strasburg’s court too have not identified any persuasive principles in this regard. The alternative claim for declaration of incomparability sought by Mrs.
Bellinger might fail with regard to the decision of the European Court which stated that it ‘will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations’: (2002) 35 EHRR 18, 33, paragraph 120. But government has not sought to question the decision of the European Court of Human Rights in Goodwin and is commited to change its legislation giving effect to this decision. Thus, court should “formally record that the present state of statute law is incompatible with the Convention” because the present case goes paralell way with that of Goodwin and the amendments to the legislation “triggered” by this case would only enhance the overal positive effects of legislation.