Christine Goodwin won many of the rights trans people now have, in the European Court of Human Rights in 2002. We already had passports and driving licences in our true gender, but she established the right to marry someone of the opposite gender, when gay marriage and even civil partnerships were not in law, the right to change the birth certificate, and the right to pensions for trans women under women’s rules, when those were different.
My passport, driving licence and bank cards show that I am female, and entitled to be in single sex spaces with other women. Under the Equality Act as a trans woman I may be excluded from women’s space if it is proportionate and legitimate, but that will be extremely rare.
The case refers to her as a “post-operative transsexual”. This is now language which is old-fashioned and offensive. Just as women replace “Mrs” and “Miss” with Ms or Mx, because the title should not disclose something which the woman may not want to disclose, we replace “post-, pre- or non-operative transsexual” with trans woman and trans man. Sometimes it refers to “transsexuals”, which arguably means that all trans people should be entitled, and operation status should not matter. If you argue that operation status matters, you increase the social pressure to surgery, which is clearly against the trans person’s human rights.
There was a breach of Articles 8 and 12 of the convention.
8.1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
12. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
In three previous cases, the court had decided there was no loss of the right to marry, because the trans woman could marry a woman. Ms Goodwin had been married to a woman, but was now living with a man. The ECHR right refers to “men and women”, but the Charter of Fundamental Rights of the EU does not: it says “The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” The court decided that as she lived as a woman, in relationship with a man, and could not marry him, that infringed her article 12 right.
What made her a woman? (Article 12 referred to men and women). Paragraph 100 names three factors:
The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.
Medical acceptance, treatment including surgery, and “the assumption of the social role”. The court also noted the EU had dropped the reference to “men and women”, moving towards acceptance of gay marriage.
I decided to look at Goodwin, because trans excluders I know claim that it turns on Ms Goodwin being “post-operative”. That was only one factor, and “the assumption of the social role” has much greater day-to-day significance for single trans people. All reasonable people recognise trans people have existed for thousands of years. Recognition by the medical professions is like recognising that kidneys exist.
I dislike the court’s references to surgery. However, consider para 81:
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.
It took me 18 months to prepare to go to work as Clare. That shows commitment and conviction, whatever my surgical status is. The Equality Act recognises that with protection from the moment we decide to transition. The decision itself requires commitment and conviction. The court says scientific questions of the precise cause of transgender is “of diminished relevance”.
Ms Goodwin claimed her right to privacy had been breached, because she had no proper protection against discrimination at work, rules on national insurance contributions and pension were unjustified, and she had to declare her birth sex when applying for loans or insurance.
The court said the State has a positive obligation to ensure respect for our private life. This means balancing the interest of the community against that of the individual. Previously the court had decided the UK had no obligation to issue altered birth certificates, but that allowing driving licences and passports were sufficient to ensure privacy.
Note that these documents and my bank card say that I am female. They mean that I can go into women’s spaces as a female. Now, the law officially confirms that: a single sex space which has established that men should be excluded needs a separate legitimate, proportionate reason to exclude me.
The court said human rights evolve. The purpose is to improve.
74. In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.
The court relied on emerging international consensus, with “a continuing international trend towards legal recognition”. In 1986 the court had refused Mark Rees’ application in part because the trend was not advanced, but by 2002 there was (para 85) “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 post-operative transsexuals.” This causes problems, perhaps, when Hungary now decrees everyone must use their birth name and gender change is illegal- but Hungary is clearly breaching human rights, and a trend towards withdrawal of rights should not be recognised.
The law affected Ms Goodwin where distinctions are made between men and women, such as, then rules on retirement age.
77. The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court’s view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.
We are anxious, humiliated and vulnerable when our social reality, living as women, is in an anomalous position. 78: “it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.”
In Bellinger v Bellinger, a trans woman sued to have her marriage to a man declared valid. The Court of Appeal said it had no power to, but Parliament should. In a dissenting judgment, Thorpe LJ said he would consider psychological factors more important than chromosomal, and assess gender at the time of marriage not at birth.
The ECHR agrees with Thorpe (para 82). Some people have chromosomal abnormalities. Chromosomes should not be decisive.
90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings … In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, 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. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal’s judgment of Bellinger v. Bellinger.
Dignity. Freedom. Personal autonomy. The right to establish details of our identity. Physical and moral security. All establish our right to recognition in our true gender. In para 91, the court proposed full legal gender recognition.
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, as regards other possible consequences, the Court considers that 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.
That “certain inconvenience” might include the objections of trans excluders to seeing trans women in women’s spaces. If we do something objectionable, such that any woman would be excluded for it, we should be excluded. But the distaste which they build in themselves as they radicalise each other should have no weight at all.
In 1999, regulations formalised the Sex Discrimination Act applicability to trans people discriminated against in employment. The law was, slowly, tending towards our recognition. Christine Goodwin’s case was the decisive factor winning us gender recognition.