Time and definitions in the interpretation of the ECHR. ‘Private life’ and the legal recognition of post-operative transsexuals

Introduction

The European Court of Human Rights (ECtHR) has jurisdiction over all matters concerning the interpretation of the European Convention of Human Rights (ECHR) and its Protocols,1 but neither the ECHR nor its Protocols give any indication as to the appropriate interpretative techniques. In principle, being an international treaty, the ECHR should be interpreted in accordance with the Vienna Convention on the Law of Treaties 1969 (VCLT).2 However, it has been rightly pointed out that the ECtHR pays only ‘lip-service’ to the interpretative tools of the VCLT.3 The reason lies in the peculiar nature of the European Convention of Human Rights, a law-making, human rights treaty,4 that can hardly be interpreted with the traditional tools of International Law (mainly borrowed by the private law of contracts).5 Therefore, the Court has autonomously developed its own interpretative methodology.

Within this methodology, a central role is played by the principle of evolutive interpretation, according to which ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions’.6 For this reason, the Court’s evaluation of the infringement of human rights develops in accordance with the changes occurring in the domestic law of the member States and in society.7 The present contribution aims at providing a better understanding of how time significantly impacts evolutive interpretation, and how the latter relates to other interpretative principles.

The analysis focuses on the extension of the notion of ‘private life’ (Article 8 ECHR) to cover certain rights pertaining not only to sexuality, but also to the legal recognition of post-operative transsexualism. The ECtHR’s case law on this topic is an interesting example of evolutive interpretation, because the inclusion of the rights of transsexuals came as a result of a progressive shift in the European judges’ attitude. Furthermore, the extension has been facilitated by the peculiar notion of ‘private life’, thus demonstrating the connection of evolutive interpretation with the autonomous notion principle.

Private life and sexuality

Article 8 ECHR protects the right to respect for private and family life, home and correspondence. Each element of the right has an autonomous meaning under the ECtHR’s case law, because the definition of the legal terms within the European Convention is held to be independent from that in use among State Parties (‘autonomous notions’ principle).8

With regard to the notion of ‘private life’, the ECtHR has established that this concept ‘is a broad term not susceptible to exhaustive definition”.9 Furthermore, it has held that ‘it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses’, and that ‘respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’10 Accordingly, the Court acknowledges that ‘private life’ is a notion encompassing not only rights relating to the personal identity of individuals (e.g.: name, honour, reputation)11 but also those pertaining to their social identity. On this basis, the Court recognised the rights associated with the free manifestation of sexual orientation relatively early.12 On the other hand, the extension of ‘private life’ to include the legal recognition of post-operative transsexualism occurred at a much later stage.

Rights of post-operative transsexuals

One of the very first cases in which the Court was faced with a request to protect the rights of transsexuals was the 1986 case concerning Rees, a British citizen who had undergone a female-to-male operation.13 He complained that no provision under British law allowed transsexuals to obtain a modification of their birth certificate in accordance with their new sex. This had certain implications e.g., on their right to marry and on their pension rights. Therefore, in the applicant’s opinion, the lacuna in the British law had infringed upon his right to respect for private life, protected by Article 8 ECHR.

The Court pointed out that the notion of ‘respect’ for private life was not ‘clear-cut’ and that there was little common ground among the Contracting States with regard to the rights of transsexuals, since the domestic law of most States was still ‘in a transitional stage’.14 As a consequence, the Court held that Article 8 ECHR could not be extended so far as to require the United Kingdom to adopt ‘detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest’, at least ‘for the time being’.15 At the same time, the Court pointed out that the Convention ‘has always to be interpreted and applied in the light of current circumstances’. On this basis, the Court declared that appropriate legal measures should ‘be kept under review, having regard particularly to scientific and societal developments’.16

In the subsequent case of Cossey (a male-to-female transsexual, complaining about the same lacuna in British law) in 1990, the Court noted that there had been no significant developments since the Rees case. There was still the same ‘diversity of practice’ among Member States, and a departure from the Court’s earlier decision was not justified since there was no change in the ‘present-day conditions’.17 This conclusion, however, was coupled with many dissenting opinions which pointed out the ‘clear developments’ in the law of some Member States, or expressed a desire for a stronger activism by the Court.18

In the 1998 Sheffield & Horshman case, the Court recognized an increased social acceptance of transsexualism, and an increased recognition of the problems which postoperative transsexuals encounter.19 However, the majority of the Court’s judges were still not convinced that the legislative European trends were sufficient to establish the existence of any common European approach to the recognition, at law, of postoperative gender status.20 The rejection of the applicants’ claims was accompanied, again, by dissenting opinions.

The slow, but evident, evolution in the Court’s attitude towards the rights of transsexuals culminated in 2002, with its judgement in the Goodwin case.21 Here, the Court recognized ‘the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals’. The consequence was that the unsatisfactory situation in which postoperative transsexuals lived was considered to be ‘no longer sustainable’, and a violation of Article 8 ECHR was finally declared.22

Conclusion

The right to legal recognition of post-operative transsexualism took twenty years to be established. It is worth noting that the extension of the protection afforded by Article 8 ECHR has been favoured by the ‘undefined’ nature of the notion of private life. Indeed, the evolutive interpretation of the Convention is more easily achieved when legal concepts lack a clear definition. From this point of view, it can well be said that the autonomous notion principle allows the Court to retain a power of non-definition of certain notions, facilitating the extension of those notions to the changing needs of society. Accordingly, one should never look at the developments of the Court’s case law without examining, first, the extent to which the Convention notions are (un)defined; the principle of evolutive interpretation should always be considered together with the autonomous notions principle.

To conclude, time manifests the limits of a historically determined text such as the European Convention of Human Rights. The ECtHR reacts to these limitations by adapting the text to the changing needs of society. The result is assisted by the margin of discretion retained by the Court on the limits of the Convention notions, which, in turn, is strengthened by the autonomous notion principle.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as emended) (ECHR), Art 32

2 United Nations, Vienna Convention on the Law of Treaties (VCLT) 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

3 I SINCLAIR, The Vienna Convention on the Law of Treaties (Manchester, 2nd ed, MUP 1984) 140

4 Wemhoff v Germany (1968) Series A no 7

5 LG LOUCAIDES, The European Convention on Human Rights. Collected Essays (Leiden, 2007) 10

6 Tyrer v United Kingdom (1978), Series A no 26, par 31; Marckx v Belgium (1979), Series A no 31, par 41

7 Dudgeon v United Kingdom (1981), Series A no 45, par 23

8 Marckx v Belgium (1979) Series A no 31, para 31; Engel And Others v The Netherlands (1976) Series A no 22, para 81. On this topic, see eg: G. Letsas, The Truth in Autonomous Concepts: how to interpret the ECHR, in European Journal of International Law, 15, 2004, p 279

9 Niemietz v Germany (1992) Series A no 251-B, par 29

10 Niemietz v Germany (1992) Series A no 251-B, par 29

11 Burghartz v Switzerland (1994), Serie A n 280-B; Sanchez Cardenas v Norway, App no 12148/03, ECHR 2007; Pfeiffer v Austria, App no 12556/03, ECHR 2007 ; Schussel v Austria (dec), App no 42409/98, ECHR 2002

12 Niemietz v Germany (1992) Series A no 251-B; Dudgeon v UK (1981) Series A no 45

13 Rees v United Kingdom (1986) Series A no 106

14 Rees, par 37

15 Rees, par 44

16 Rees, par 47

17 Cossey v United Kingdom (1990) Series A no 184, par 40

18 Cossey, (1990) Series A no 184 (Judges Macdonald & Spielmann) (Judge Martens)

19 Sheffield & Horshman v United Kingdom, ECHR 1998-V

20 Sheffield & Horshman, par 57-60

21 Goodwin v United Kingdom, ECHR 2002-VI

22 Goodwin, par 84-90

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