Thursday, May 25, 2006

Grant v. United Kingdom

The European Court of Human Rights has on Tuesday delivered its judgement in the case of Grant v. the United Kingdom.

Ms Grant, is a 68-year-old British national who lives in St Albans (the United Kingdom). She is a post-operative male-to-female transsexual. Ms Grant’s birth certificate showed her as male. She served in the army for three years from age 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, was identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at a female rate . In 1972 she became self-employed and started paying into a private pension fund. The applicant applied for a State pension to start on 22 December 1997, her 60th birthday. On 31 October 1997 her application was refused on the ground that she would only be entitled to a State pension when she reached 65, the retirement age applicable to men. She appealed unsuccessfully.

On 12 July 2002 she requested that her case be reopened in the light of the European Court of Human Right’s Grand Chamber judgments of 11 July 2002, Christine Goodwin v. the United Kingdom and I. v. the United Kingdom In those two cases the ECtHR found the British Government’s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals to be in breach of Article 8 of the Convention. On 14 August 2002 the applicant was informed that she had been granted leave to appeal to the Court of Appeal. However, on legal advice, she decided not to pursue her appeal.

The ECtHR found that Ms Grant was in an identical situation to the applicant in the Christine Goodwin case; as a post-operative male-to-female transsexual, Ms Grant might claim to be a victim of a breach of her right to respect for her private life contrary to Article 8, due to the lack of legal recognition of her change of gender.

The ECtHR noted that, while it was true that the Government had had to take steps to comply with the Christine Goodwin judgment, which had involved drafting, and passing in Parliament, new legislation, which they had achieved with laudable expedition, it was not the case that that process could be regarded as in any way suspending her victim status. Following the ECtHR’s judgment in Christine Goodwin, there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. Ms Grant, as such a transsexual, did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. Her victim status came to an end when the Gender Recognition Act 2004 came into force, thereby providing her with the means on a domestic level to obtain legal recognition. Consequently, in so far as the applicant complained about the refusal to accord her the pension rights applicable to women of biological origin, she might claim to be a victim of that aspect of the lack of legal recognition from the moment, after the Christine Goodwin judgment, when the authorities refused to give effect to her claim, namely, from 5 September 2002.

The European Court of Human Rights therefore found that there had been a breach of the Ms Grant’s right to respect for private life contrary to Article 8.

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