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   amendment of entries in civil status registers relating to sex  and
   forenames  (see  inter alia T.G.I. Amiens, 4.3.1981 ;  {Angouleme},
   18.1.1984;  {Creteil},  22.10.1981; Lyon,  31.1.1986;  Montpellier,
   6.5.1985;  Nanterre,  16.10.1980 and  21.4.1983;  Niort,  5.1.1983;
   Paris,    24.11.1981,   16.11.1982,   9.7.1985   and    30.11.1988;
   {Perigueux},   10.9.1991;  Saint-Etienne,  11.7.1979;   Strasbourg,
   20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A.  Agen,
   2.2.1983;  Colmar,  15.5.1991  and 30.10.1991;  {Nimes},  2.7.1984;
   Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984)  or
   relating   to   forenames  only  (T.G.I.  Lyon,  9.11.1990;   Metz,
   6.6.1991;   Paris,   30.5.1990;  Saint-Etienne,   26.3.1980;   C.A.
   Bordeaux,  18.3.1991). Some of these decisions specified  that  the
   amendment  of civil status should not have retroactive  effect,  in
   order  not  to affect earlier legal acts or situations.  The  great
   majority  of  them have become final and binding, the  prosecutor's
   office not having exercised its right to appeal.
       Contrary rulings have, however, been given by other courts (see
   inter  alia  T.G.I.  Bobigny,  18.9.1990;  Paris,  7.12.1982;  C.A.
   Bordeaux,   13.6.1972  and  5.3.1987;  Lyon,   19.11.1987;   Nancy,
   5.4.1973,  13.4.1977  and 22.4.1982; {Nimes}, 10.3.1986,  7.6.1986,
   7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988).
       24.  The  Court of Cassation has had occasion to give decisions
   on this point some twelve times from 1975 to 31 May 1990.
       In two judgments of 16 December 1975 (Bull. civ. I, no. 374, p.
   312,  and  no.  376, p. 313; Recueil Dalloz Sirey (D.S.)  1976,  p.
   397,  note  Lindon; Juris-Classeur {periodique} (J.C.P.) 1976,  II,
   18503,  note  Penneau) it ruled out any possibility of taking  into
   account  a  change of sexual attributes following hormone treatment
   and  surgery  which the person concerned had voluntarily  undergone
   (first  judgment), but indicated that the courts  could  take  into
   account   involuntary  morphological  changes  following  treatment
   carried  out  in a concentration camp during the second  world  war
   (second judgment).
       On  30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984,
   p.  165,  note Edelman; J.C.P. 1984, II, 20222, submissions  of  Mr
   Advocate  General  Sadon) it dismissed an  appeal  which  had  been
   brought  against  a  judgment refusing to allow  a  change  of  sex
   despite a favourable medical report, as "the Court of Appeal  [had]
   found  that despite the operations undergone by her, Nadine V.  was
   not of male sex".
       Two further judgments were given by the Court of Cassation on 3
   and  31  March 1987 (Bull. civ. I, no. 79, p. 59, and no.  116,  p.
   87;  D.S. 1987, p. 445, note Jourdain). The latter judgment relates
   to  the  present case (see paragraph 17 above). In the former,  the
   court  had to rule on the position of a transsexual who was married
   and the father of a child. While acknowledging that genetically  he
   was  still  a man, the {Nimes} Court of Appeal had on 2  July  1984
   ordered  rectification  of  his birth  certificate  and  change  of
   forenames.  On  appeal  by  the procureur's  office  the  Court  of
   Cassation quashed the judgment on the grounds that its findings  of
   fact  did  not  show that there was a change of  sex  caused  by  a
   factor extraneous to the will of the person concerned.
       On  7  March 1988 (Bull. civ. I, no. 176, p. 122), 7 June  1988
   (Gazette  du  Palais (G.P.) 7 - 8 June 1989, jurisprudence,  p.  4)
   and  10  May  1989  (Bull.  civ. I, no.  189,  p.  125)  the  court
   dismissed  appeals  by  transsexuals who had voluntarily  undergone
   hormone  treatment only, on the grounds that the  Court  of  Appeal
   had  found that the said treatment was of voluntary nature and  had
   been  entitled  to  regard as insufficient  the  psychological  and
   social factors relied on.
       On  21  May 1990 the Court of Cassation dealt in the  same  way
   with  four  appeals  (J.C.P. 1990, II, 21588,  with  report  by  Mr
   Massip  and submissions of Mrs Advocate General Flipo).  It  stated
   in particular that:
       "...  transsexualism, even where medically acknowledged, cannot
   be  regarded as a true change of sex, as the transsexual,  although
   having  lost certain characteristics of his original sex,  has  not
   thereby acquired those of the opposite sex; ..."
       In  the  fourth  of  these  appeals the  Court  of  Appeal  was
   criticised  for  "not having investigated further  to  see  if,  in
   default   of   rectification  of  sex,  at  the  very   least   the
   substitution  of forenames requested ought to have  been  allowed".
   The  Court  of  Cassation's response was  that  the  applicant  had
   "before  the  Court of Appeal requested a change of forenames  only
   as  a  consequence of the change of sex she was claiming" and  that
   she  had  "not shown that she had a legitimate interest within  the
   meaning  of the third paragraph of Article 57 of the Civil Code  in
   her  forenames  being amended even if the change of  sex  were  not
   allowed".  The ground of appeal was therefore rejected, as  it  had
   not been argued before the court below.
                             C. Documents
                      1. Administrative documents
       (a) Identity documents
       25.  As  a general rule, sex is not indicated on administrative
   documents  issued to natural persons, such as traditional  national
   identity  cards, classic style passports, driving licences,  voting
   cards, certificates of nationality, etc.
       However, the new computerised identity cards do mention sex  in
   order  to enable an individual to be identified by machine  and  to
   take  account  of the existence of ambiguous forenames.  This  also
   applies  to  the  "Community" style passports which  are  gradually
   replacing "national" passports.
       (b) The INSEE number
       26.  The National Institute for Statistics and Economic Studies
   (Institut  national de la statistique et des {etudes  economiques},
   INSEE)  allocates everyone a number. The first digit of the  number
   indicates  sex  (1  for  male sex, 2 for female  sex).  The  number
   appears   in  the  national  identification  register  of   natural
   persons;  the social security bodies use it with additional  digits
   for each person insured.
       The right to make use of this number is governed by Law no. 78-
   17   of  6  January  1978  on  data  processing,  files  and  civil
   liberties.  Under section 8 of this Law access to the register  for
   the  purpose  of  processing data involving  names  is  subject  to
   authorisation  by  a  decree  in the Conseil  d'Etat  issued  after
   consultation  with the National Commission on Data  Processing  and
   Civil  Liberties  (Commission nationale de  l'informatique  et  des
   {libertes},  CNIL). Decree no. 82-103 of 22 January  1982  relating
   to  the  said  register provides that "with the  exception  of  the
   cases  specifically provided for by law, the register  may  not  be
   used for the purpose of tracing individuals" (section 7).
       In  an opinion of June 1981 the CNIL defined in broad terms the
   principles  which it intended to follow in supervising the  use  of
   the  register and the registration numbers in it. Since then it has
   recommended  against use of the number or had its use withdrawn  in
   numerous   cases  relating  inter  alia  to  taxation  and   public
   education.  On  the other hand, it approved its  use  for  checking
   personal  identities  in  connection with  the  computerisation  of
   criminal  records  and  the central data file  of  cheques  of  the
   Banque  de  France.  A decree of 11 April 1985 likewise  authorised
   social  security  institutions  to make  use  of  the  registration
   number.  The CNIL has also, when various rules were being drawn  up
   relating  to  employees' pay, allowed the number to be  used  as  a
   means of correspondence with social security bodies.
                         2. Private documents
       27.  There is no provision of law which makes it compulsory for
   banking  and  postal institutions to include the  prefix  "Madame",
   "Mademoiselle" or "Monsieur" on cheques, but in practice  they  are
   usually included. However, anyone may require that his surname  and
   forenames only be used.
       28.  Invoices  must include the surnames of  the  persons  they
   concern but need not indicate their sex (section 3 of Order no. 86-
   1243 of 1 December 1986).
       29.  In  her application of 28 September 1987 to the Commission
   (no.  13343/87), Miss B. complained of the refusal  of  the  French
   authorities  to recognise her true sexual identity,  in  particular
   their  refusal to allow her the change of civil status sought.  She
   relied  on  Articles 3, 8 and 12 (art. 3, art. 8, art. 12)  of  the
       30.  The Commission declared the application admissible  on  13
   February  1990,  with  the  exception of  the  complaint  based  on
   Article  12 (art. 12), which it rejected on the grounds of  failure
   to  exhaust  domestic remedies. In its report of 6  September  1990
   (made  under  Article 31) (art. 31), it expressed the opinion  that
   there  had been a violation of Article 8 (art. 8) (seventeen  votes
   to one) but not of Article 3 (art. 3) (fifteen votes to three).
       The full text of the Commission's opinion and of the dissenting
   opinion  contained in the report is reproduced as an annex to  this
   judgment <4>.
       <4>  Note  by the Registrar: for practical reasons  this  annex
   will  appear only with the printed version of the judgment  (volume
   232-C of Series A of the Publications of the Court), but a copy  of
   the Commission's report is obtainable from the registry.
       31. At the hearing the Government confirmed the submissions  in
   their  memorial. They asked the Court to "dismiss the  application"
   on  the  grounds of failure to exhaust domestic remedies,  and  "in
   addition  and  in any event" as being out of time  (Article  26  in
   fine  of the Convention) (art. 26), and "purely in the alternative"
   as ill-founded.
       32. The applicant in her memorial asked the Court to
       "-  hold  that  France [had] with respect to her  violated  the
   provisions of Article 8 para. 1 (art. 8-1) of the Convention ...;
       -  order  France to pay her the sum of 1,000,000 French  francs
   (FRF) under Article 50 (art. 50) of the Convention ... and the  sum
   of  35,000 FRF for the costs and expenses she [had] been obliged to
   incur  before  the  Court  of Cassation  and  before  the  European
   Commission and Court."
                             AS TO THE LAW
                 I. The questions of jurisdiction and
               admissibility raised in the present case
       33. Under Article 26 (art. 26) of the Convention,
       "The  Commission  may  only  deal with  the  matter  after  all
   domestic  remedies have been exhausted, according to the  generally
   recognised rules of international law, and within a period  of  six
   months from the date on which the final decision was taken."
       The  Government  raised  two objections  as  to  admissibility,
   arguing firstly that domestic remedies had not been exhausted,  and
   secondly that the application was out of time.
                A. The Court's jurisdiction to examine
                the Government's preliminary objections
       34.   The   Commission  asked  the  Court   to   declare   them
   inadmissible.  It was well aware that as from the  De  Wilde,  Ooms
   and  Versyp v. Belgium judgment of 18 June 1971 (Series A  no.  12,
   pp.  29  -  30, paras. 47 - 52) the Court had examined  preliminary
   objections  raised under Article 26 (art. 26) and had  upheld  them
   on  occasion  (Van Oosterwijck v. Belgium judgment  of  6  November
   1980,  Series  A  no.  40,  pp. 5 - 31). It  noted,  however,  that
   several  judges had given dissenting opinions on this  point,  both
   at  the time (aforesaid judgment of 18 June 1971, pp. 49 - 58)  and
   in  cases  since  (Brozicek v. Italy judgment of 19 December  1989,
   Series A no. 167, pp. 23 - 28, and Cardot v. France judgment of  19
   May 1991, Series A no. 200, pp. 23 - 24).
       It  argued  that  the Court's case-law on this  point  had  two
   important   consequences:   it   rendered   more   burdensome   the
   proceedings of the Convention institutions, and created  a  further
   lack  of equality between governments and applicants, as the latter
   are  not able to appeal against findings of inadmissibility by  the
       35.  The applicant expressed no opinion. The Government  stated
   that  they  maintained their objections, in  view  of  the  Court's
   "clear and consistent attitude" on the point.
       36.  The  Court  has considered the Commission's reasoning  but
   sees  no  reason, as matters stand, for abandoning a line of  case-
   law  which  has been followed constantly for over twenty years  and
   which  has  found  expression in a large number  of  judgments.  It
   notes   in   particular  that  the  arguments   put   forward   are
   substantially the same as those advanced by the Commission  in  the
   De  Wilde,  Ooms and Versyp case (Series B no. 10, pp. 209  -  213,
   214  and  258  - 263), which were not upheld in the above-mentioned
   judgment of 18 June 1971.
       It  therefore considers that it has jurisdiction to examine the
   Government's preliminary objections.
                   B. The merits of the Government's
                        preliminary objections
              1. The failure to exhaust domestic remedies
       37.  According  to  the Government, the applicant  should  have
   relied  on  the  Convention  before the courts  of  first  instance
   instead  of doing so for the first time in her appeal to the  Court
   of  Cassation.  As  her argument had been raised  at  such  a  late
   stage, it had been inadmissible.
       38.   The  applicant  countered  that  the  principle  of   the
   prohibition  on raising new submissions in the Court  of  Cassation
   did not apply to arguments of public policy, pure points of law  or
   arguments  which  followed  from  the  decision  being  challenged;
   moreover,  parties were entitled to put forward any  new  arguments
   of  law.  The question whether the reasoning of the Bordeaux  Court
   of  Appeal's  judgment conflicted with the Convention  fell  within
   this category.
       39. The Court finds, in agreement with the Commission, that the
   applicant  complained in substance of a violation of her  right  to
   respect  for  her  private  life before the  Libourne  tribunal  de
   grande   instance  and  the  Bordeaux  Court  of  Appeal  (see   in
   particular, mutatis mutandis, the Guzzardi v. Italy judgment  of  6
   November  1980,  Series A no. 39, pp. 25 - 27,  paras.  71  -  72).
   Admittedly,  she  did not at that time rely on the Convention,  but
   an  express  reference thereto was not the only means open  to  her
   for  achieving  the aim pursued; there were numerous  decisions  of
   the  inferior  courts,  based on provisions of  French  law  alone,
   which  allowed  her  to  hope that she  might  win  her  case  (see
   paragraph  23  above). In this respect her position  was  different
   from  that  of  Mr Van Oosterwijck (see the judgment  cited  above,
   Series A no. 40, pp. 16 - 17, paras. 33 - 34).
       Furthermore, the Court of Cassation did not declare the  ground
   of  appeal inadmissible on the grounds of novelty, but rejected  it
   as  being  ill-founded (see paragraph 17 above),  as  Miss  B.  has
   correctly pointed out.
       The  objection  of  non-exhaustion of  domestic  remedies  must
   therefore be dismissed.
              2. Whether the application was out of time
       40.   The  Government  argued  in  the  alternative  that   the
   application  had  been lodged out of time. In  their  opinion,  the
   judgment  of  the  Bordeaux Court of Appeal  was  based  solely  on
   questions  of  fact, so that the appeal to the Court  of  Cassation
   had  no  chance of success in any event. The period of  six  months
   mentioned in Article 26 (art. 26) in fine had therefore started  to
   run  on  30  May  1985,  the date of the  said  judgment,  and  the
   applicant had not complied therewith.
       41.  Miss  B., on the other hand, considered that  it  was  not
   possible to state a priori that an appeal would be ineffective,  on
   the  alleged  ground  that  the courts  below  had  ruled  "on  the
   particular  facts":  the  Court of Cassation  had  jurisdiction  to
   review  the  correctness of the principles of law  applied  by  the
   Court of Appeal in declining to take account of a change of sex.
       42.  The  Court notes that the applicant put to  the  Court  of
   Cassation  a  point  of  law relating to Article  8  (art.  8)  and
   founded  on  the  opinion of the Commission in the Van  Oosterwijck
   case  (Series  B no. 36, pp. 23 - 26, paras. 43 - 52). Furthermore,
   there  was no consistent case-law in existence at the time to  show
   in advance that the applicant's appeal was pointless.
       An  appeal  to the Court of Cassation is after all in principle
   one  of  the remedies which should be exhausted in order to  comply
   with  Article  26  (art. 26). Even supposing that it  was  probably
   destined  to  fail  in  the particular case, the  bringing  of  the
   appeal  was  thus not futile. It therefore had the  effect  at  the
   very  least  of  postponing  the starting-point  of  the  six-month
       Accordingly, the objection that the application was out of time
   must also be dismissed.
                            II. THE MERITS
              A. Alleged violation of Article 8 (art. 8)
       43.  According  to the applicant, the refusal to recognise  her
   true  sexual  identity was a breach of Article 8 (art.  8)  of  the
   Convention, which reads as follows:
       "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 well-being  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."
       She  argued that by failing to allow the indication of her  sex
   to  be  corrected in the civil status register and on her  official
   identity  documents, the French authorities forced her to  disclose
   intimate  personal information to third parties; she  also  alleged
   that she faced great difficulties in her professional life.
       44.  The  Court notes first of all that the notion of "respect"
   enshrined in Article 8 (art. 8) is not clear-cut. This is the  case
   especially where the positive obligations implicit in that  concept
   are  concerned, as in the instant case (see the Rees v. the  United
   Kingdom  judgment  of 17 October 1986, Series A  no.  106,  p.  14,
   para.  35,  and  the Cossey v. the United Kingdom  judgment  of  27
   September  1990,  Series  A no. 184, p.  15,  para.  36),  and  its
   requirements will vary considerably from case to case according  to
   the   practices  followed  and  the  situations  obtaining  in  the
   Contracting  States.  In  determining  whether  or  not   such   an
   obligation exists, regard must be had to the fair balance that  has
   to  be struck between the general interest and the interests of the
   individual (see in particular the above-mentioned Cossey  judgment,
   p. 15, para. 37).
       45.  Miss  B.  argued that it was not correct to  consider  her
   application  as  substantially identical to those of  Mr  Rees  and
   Miss Cossey previously before the Court.
       Firstly,  it  was  based on new scientific,  legal  and  social
       Secondly, there was a fundamental difference between France and
   England  in  this field, with regard to their legislation  and  the
   attitude of their public authorities.
       Thus  the application of the very criteria stated in the above-
   mentioned judgments of 17 October 1986 and 27 September 1990  would
   have  led  to  a finding of a violation by France, as  French  law,
   unlike  English  law,  did  not  even  acknowledge  the  appearance
   lawfully assumed by a transsexual.
       The  applicant also invited the Court to develop  its  analysis
   further  than in the aforesaid two cases. She wished the  Court  to
   hold  that a Contracting State is in breach of Article 8  (art.  8)
   if  it  denies  in general fashion the reality of the psycho-social
   sex of transsexuals.
             1. Scientific, legal and social developments
       46.  (a)  The Court said in the Cossey judgment that it  "[had]
   been  informed of no significant scientific developments that [had]
   occurred"  since the Rees judgment; "in particular,  it  remain[ed]
   the  case ... that gender reassignment surgery [did] not result  in
   the  acquisition of all the biological characteristics of the other
   sex" (loc. cit., p. 16, para. 40).
       According to the applicant, science appears to have contributed
   two  new  elements to the debate on the contrast between appearance
   (changed  somatic  sex  and constructed gonadal  sex)  and  reality
   (unchanged  chromosomal  sex  but contrary  psycho-social  sex)  as
   regards   the   sex  of  transsexuals.  Firstly,  the   chromosomal
   criterion  was  not  infallible  (cases  of  persons  with   intra-
   abdominal testicles, so-called testicular feminisation, or with  XY
   chromosomes  despite their feminine appearance); secondly,  current
   research  suggested that the ingestion of certain substances  at  a
   given  stage  of pregnancy, or during the first few days  of  life,
   determined  transsexual  behaviour, and that  transsexualism  might
   result  from a chromosome anomaly. There might thus be a  physical,
   not  merely  psychological  explanation of  the  phenomenon,  which
   would  mean that there could be no excuse for refusing to  take  it
   into account in law.
       (b) As regards the legal aspects of the problem, Miss B. relied
   on  the  dissenting opinion of Judge Martens, annexed to the Cossey
   judgment  (Series  A  no.  184,  pp.  35  -  36,  para.  5.5);  the
   differences which still subsisted between the member States of  the
   Council  of  Europe  as  to  the attitude  to  be  adopted  towards
   transsexuals  (ibid., p. 16, para. 40) were counterbalanced  to  an
   increasing  extent by developments in the legislation and  case-law
   of  many  of  those States. This was supported by  resolutions  and
   recommendations of the Assembly of the Council of  Europe  and  the
   European Parliament.
       (c)  Finally,  the  applicant stressed the rapidity  of  social
   changes  in the countries of Europe, and the diversity of  cultures
   represented by those countries which had adapted their laws to  the
   situation of transsexuals.
       47.  The  Government  did  not deny that  science  had  in  the
   twentieth  century,  especially in the  last  three  decades,  made
   considerable advances in the use of sexual hormones and in  plastic
   and  prosthetic  surgery, and that the question of sexual  identity
   was  still  in  the course of evolution from the medical  point  of
   view.  Transsexuals  nevertheless kept their  original  chromosomal
   sex;  only  their appearance could be changed. But the  law  should
   fasten   on  the  reality.  Moreover,  operations  which  presented
   certain dangers should not be trivialised.
       National  laws were also evolving and many of them had  already
   changed,  but  the  new  laws  thus introduced  did  not  lay  down
   identical solutions.
       In  short, things were in a state of flux, legally, morally and
       48.  The  Court considers that it is undeniable that  attitudes
   have  changed, science has progressed and increasing importance  is
   attached to the problem of transsexualism.
       It notes, however, in the light of the relevant studies carried
   out  and  work  done  by experts in this field,  that  there  still
   remains   some   uncertainty  as  to  the   essential   nature   of
   transsexualism and that the legitimacy of surgical intervention  in
   such  cases  is  sometimes questioned. The legal  situations  which
   result  are  moreover  extremely complex:  anatomical,  biological,
   psychological  and moral problems in connection with transsexualism
   and  its  definition; consent and other requirements to be complied
   with  before any operation; the conditions under which a change  of
   sexual   identity   can   be   authorised   (validity,   scientific
   presuppositions  and legal effects of recourse to surgery,  fitness
   for  life  with  the  new  sexual identity); international  aspects
   (place  where  the operation is performed); the legal consequences,
   retrospective  or  otherwise, of such a  change  (rectification  of
   civil  status  documents); the opportunity to  choose  a  different
   forename;   the   confidentiality  of  documents  and   information
   mentioning the change; effects of a family nature (right to  marry,
   fate  of  an  existing marriage, filiation), and so  on.  On  these
   various  points  there  is as yet no sufficiently  broad  consensus
   between the member States of the Council of Europe to persuade  the
   Court  to  reach  opposite conclusions to those  in  its  Rees  and
   Cossey judgments.
                 2. The differences between the French
                          and English systems
       49. The applicant argued that the lot of transsexuals could  be
   seen  to  be much harder in France than in England on a  number  of
   points. The Commission agreed in substance with this opinion.
       50.  In the Government's opinion, on the other hand, the  Court
   could  not  depart in the case of France from the solution  adopted
   in  the Rees and Cossey judgments. The applicant might no doubt  in
   the  course  of her daily life experience a number of  embarrassing
   situations,  but  they  were not serious  enough  to  constitute  a
   breach   of  Article  8  (art.  8).  At  no  time  had  the  French
   authorities denied transsexuals the right to lead their  own  lives
   as  they wished. The applicant's own history was evidence of  this,
   as  Miss  B. had succeeded in passing as a woman despite  her  male
   civil  status.  Besides,  a transsexual  who  did  not  want  third
   parties  to  know  his  or her biological  sex  was  in  a  similar
   situation  to  that  of  a person wishing to  keep  other  personal
   information secret (age, income, address, etc.).

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