No Longer the Ugly Duckling: The European Court of Human Rights Recognizes Transsexual Civil Rights in Goodwin v. United Kingdom and Sets the Tone for Future United States Reform

• Author: Betty C. Burke
• Pages: 643-677

Page 643

The author wishes to thank Professor Katherine Rogers and Mr. Scott Huffstetler for their invaluable assistance in the development of this article, to Mr. George Jacobsen with the Louisiana State University Law Library for his helpful aid with European research, and finally to Ryan Uzee for his support, patience, and humor.

What pulls human rights forward is not a series of separate, parallel cords, but a "rope" of multiple interwoven strands. Remove one strand, and the entire rope is weakened. International human rights law is a strand woven throughout the length of the rope. Its main value is not how much rights protection it can pull as a single strand, but in how it strengthens the entire rope.¹

Introduction: The Duckling Often Hides Behind His Wing

Goodwin v. United Kingdom² held that the United Kingdom's refusal to allow transsexuals the right to change their official birth certificates and the right to obtain valid marriages was in violation of Articles 8 and 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Decided by the European Court of Human Rights in July 2002, the case involved a male to female transsexual who sued the United Kingdom because of the government's refusal to allow her to change her official birth certificate and to get legally married. Overturning years of prior transsexual civil rights case law, the Court reinterpreted Articles 8 and 12 in the light of present day conditions and held that the United Kingdom must establish procedures to correct those violations and must begin extending civil rights to transsexuals immediately.

The holding in Goodwin will definitely impact birth recordation and marriage procedures in the United Kingdom. More importantly, however, the Goodwin holding may usher in a new wave of sexual minority civil rights litigation in the United States. If so, domestic courts could consider Goodwin persuasive authority when deciding transsexual civil rights litigation in an effort to increase judicial globalization. They should do so because the European Court is an internationally well-respected tribunal that is dedicated to adjudicating human rights issues; it would be an appropriate authority for domestic courts to consider when deciding transsexual civil rights in the states. Transsexuals in the United States who wish to amend their birth certificates or get legally married should consider using the Page 644 Fourteenth Amendment as a basis for those rights. Finally, they should also consider basing their claims of rights on the opinions of Justice Goldberg in Griswold v. Connecticut and Justice Blackmun in Bowers v. Hardwick to argue that the Ninth Amendment guarantees to them the same rights guaranteed to their European brethren under Articles 8 and 12 of the Convention.

The recency and modernness of the Goodwin decision have brought transsexual civil rights into the public eye; therefore, the note suggests a couple of ideas based upon Goodwin that might make it easier for United States transsexuals to have the same civil rights as European transsexuals. Section I presents the facts of Goodwin v. United Kingdom. Section II examines the law that gave rise to the Goodwin decision, including Articles 8 and 12 of the Convention and prior European Court of Human Rights jurisprudence. Section III discusses the evolution in the judicial interpretation of the articles that enabled the Court to reach the Goodwin decision. Section IV speculates upon the implications this decision will have upon European law and administrative practices. Then, Section V brings Goodwin closer to home, analyzing its potential effects on domestic courts and on transsexual litigants fighting for human rights in the states.

A Vocabulary

Before presenting Goodwin v. United Kingdom, it is necessary to define specific terms used to describe transsexuals and review the history of the condition. In a four year period beginning in 1987, Holly Devor, author of Female to Male Transsexuals in Society, met and personally interviewed forty-five female to male transsexuals. She developed a vocabulary of relevant terms used in association with transsexuals. Her definitions serve as the basis of the vocabulary used throughout this note.³ "Sex" refers to the physiological status of a person, whether defined by chromosomes, external genitalia, or hormones.⁴ "Gender" or "gender identity" refers to the social status of a person, such as man or woman.⁵ "Female to male transsexual" or "male to female transsexual" are phrases used to describe persons who have begun to identify themselves as transsexual or who are in the process of transforming their genders or sexes.⁶ Transsexuals could be described as having a gender identity that more closely matches the other physical sex and they often describe themselves as feeling Page 645 trapped in the body of the wrong sex.⁷ "Transgendered" is used to describe persons who have bodies of one sex, but who regard themselves as either partly or completely members of the opposite gender; however, they do not experience the desire to surgically alter their anatomy through sex reassignment.⁸

B History and Causes of Transgenderism/Transsexualism

It is estimated that one in 10,000-12,000 males and one in 30,000 females are transsexual.⁹ Evidence of transgenderism goes as far back as descriptions in classical Greek and Roman mythology. There are documented stories of women living as men in Medieval Europe, as well as in the Renaissance.¹⁰ The eighteenth and nineteenth centuries similarly featured women cross-dressing as men in order to obtain economic advantages that they could not achieve as women.¹¹ The 1950's saw the beginning of systematic medical treatment for transsexuals, and the first gender clinics opened in the mid 1960's. In 1976, Renee Richards, a popular professional tennis player, announced the results of her successful gender reassignment surgery. By then, transsexualism was no longer seriously questioned as a medical condition. In 1979, it was dubbed "gender dysphoria" by the Harry Benjamin International Gender Dysphoria Association.¹² Today the term preferred by professionals to describe the condition is "gender identity disorder."¹³

The history of transgenderism/transsexualism is much clearer than its causes, for there is much debate among theorists as to whether the condition is psychologically or biologically based.¹⁴ On one hand, many believe that transsexualism is a reaction to anxieties about Page 646 one's gender role or that it is the result of over identification with the parent of the opposite sex.¹⁵ On the other hand, some theorists believe that transsexualism may have biological origins. Unfortunately, the question of whether or not transsexualism is genetically based has not been systematically investigated. Most of the biological theories focus on the influence of hormones on the endocrine and brain system.¹⁶ One such theory espoused by researchers in the Netherlands involves the hypothalamus, which is a dense collection of neurons located in the brain. This organ secretes hormones in response to stimuli that causes endocrine gland reactions. The proponents of this theory claim that the bed nucleus of the stria terminalis (BST) is larger in men than in women. These researchers assert that transsexuals are born with a BST size that does not correspond to their physical gender. They base their theory on the finding of female size BST's in male-to-female transsexuals. This theory implies that gender identity develops as a result of an interaction between the developing brain and sex hormones.¹⁷

Transsexuals have a richly documented history and are the subject of extensive medical testing as well as psychiatric and sociological debate. However, an argument can be made that socially transsexuals are not accepted as a group. Around the world, most sexual minorities face such forms of persecution as unfair arrest, beatings, torture, rape, discrimination in the workplace, loss of employment, invasion of privacy, and in some countries, even execution.¹⁸ As a result of the ostracization they face, transsexuals can be compared to the main character in a well-known Hans Christian Andersen fairy tale.¹⁹ In The Ugly Duckling, an ugly duckling was hatched by a mother duck and reared among her other ducklings. As a result of his differences, the duckling was picked on and driven away from the rest of the flock. One day, he overheard a strange sound; children were admiring him. After he looked at his reflection in a pond, he realized that he had matured into a beautiful swan.²⁰

There are some similarities between transsexuals as a sexual minority group and the tale of the ugly duckling. Transsexuals are often misunderstood and driven away from mainstream society Page 647 because of their perceived differences. Just like the duckling was not considered ugly for long, though, society's perception of transsexuals may be changing as well. If courts in the United States adopt the reasoning behind the Goodwin decision, there is evidence that a...