AS TO THE ADMISSIBILITY OF
Application no. 43113/04
by Elizabeth and Michael BELLINGER
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 11 July 2006 as a Chamber composed of:
Sir Nicolas Bratza,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 30 November 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the letter submitted by the applicants,
Having deliberated, decides as follows:
The applicants, United Kingdom nationals, who were born in 1946 and 1944 respectively, live together in London. They are represented before the Court by Ms Louise Christian, a solicitor practising in London and Lord Lester of Herne Hill, Q.C., a barrister practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, registered at birth as male, underwent treatment for gender dysphoria and has lived as a woman ever since.
On 2 May 1981, the first applicant went through a civil marriage ceremony with the second applicant who was fully aware of her background.
On 5 January 1999, the first applicant issued a petition in the High Court seeking a declaration that their marriage was "at its inception a valid marriage".
On 2 November 2000, the High Court rejected her claim on the basis that the ceremony of marriage did not create a valid marriage as the parties to it were not respectively male and female as required by section 11 of the Matrimonial Causes Act 1973.
On 17 July 2001, the Court of Appeal, by a majority, rejected her appeal. It refused leave to appeal. On 17 January 2002, the House of Lords granted leave to appeal.
On 11 July 2002, the Court gave judgment in Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002-VI) finding violations of Articles 8 and 12 as regarded the lack of legal recognition of the applicant’s change of gender as a post-operative transsexual.
On 10 April 2003, the House of Lords rejected the applicant’s appeal. Their Lordships held that it was not possible to declare the marriage valid and subsisting due to the terms of section 11(c) of the 1973 Act and that it would amount to legislation beyond the competence of the judiciary to read and give effect to that provision in a way compatible with Articles 8 and 12 of the Convention as interpreted by the Court in Christine Goodwin. Instead, they granted a declaration that section 11(c) was incompatible with the applicants’ Convention rights under Articles 8 and 12 of the Convention.
In July 2003 the Government published the draft Gender Recognition Bill which received the Royal Assent on 1 July 2004. The Joint Committee of Human Rights in its report on the Bill had considered the situation regarding the validity of marriages such as the applicants. It had noted that the Court in Christine Goodwin had made it clear that its judgment operated only prospectively and did not cast doubt on previous judgments that had found English law compatible with the Convention. It also noted the Government position that it did not wish to change retrospectively the legal status of the parties to such marriages. While it did not find the difficulties insuperable and recommended that the Government give further thought to the possibility of giving retrospective legal effect to a person’s acquired gender from the moment that they could show that they satisfied the requirements of the new legislation, the Government did not give effect to the recommendation.
B. Relevant domestic law and practice
For the legal position prior to 1 July 2004, see Relevant Domestic Law and Practice in Christine Goodwin v. the United Kingdom (cited above, §§ 20-54). The Gender Recognition Act 2004 received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria will be able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which would be prospective in effect, an individual would be afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension would be paid according to the acquired gender.
From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates may be issued.
1. The applicants complained that the lack of recognition of the first applicant’s change of gender and their marriage infringed Articles 8 and 12 of the Convention as found by the House of Lords.
2. The applicants complained under Article 14 in conjunction with Article 1 of Protocol No. 1 that they were treated differently from same sex couples registered under the Civil Partnership Act 2004 who were to be treated as if they were married for the purpose of survivors’ benefits, including accrued pension contributions, whereas the applicants were unable to be treated as if they were married.
3. The applicants complained under Article 13 of the Convention that there was no effective remedy for their complaints.
The Court takes note of the applicants’ letter dated 24 May 2006, following receipt of the Government’s observations in this case, in which the applicants stated that they had decided not to proceed with the case.
The Court is satisfied that the applicants no longer wish to pursue their application and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
T.L. Early Josep Casadevall
BELLINGER v. THE UNITED KINGDOM DECISION
BELLINGER v. THE UNITED KINGDOM DECISION