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25 November 2018

Case of Sheffield and Horsham v. The United Kingdom, 1998


Rachel Horsham (1946 - )


Horsham was raised in a small village in Surrey, with a father who had been born in India, and a mother from Ireland. Horsham knew from an early age that she was not really male. As Rachel she emigrated to the Netherlands in 1974 because that country recognised trans women as women at a time when the UK did not.

She became a patient of Professor Dr Louis Gooren at the Vrije Universiteit (Free University) of Amsterdam, wrote the first version of her autobiography in 1991, and completed transition in 1992.

She applied to the UK Consulate for a re-issued UK passport in her new name and gender:

“During an interview with the Consul, I was informed that it was not possible to be issued with a new passport reflecting my current status, at the time. Nor would they accept a letter of Deed Poll from a Solicitor for a change of forenames. Their reasoning: that the issuing of passports to transsexuals in the United Kingdom, showing their female status, on production of a letter of Deed Poll from a Solicitor, and a letter of acknowledgement from a qualified doctor, that the bearer was a transsexual, was not legal outside of the United Kingdom.” (Plaintiff’s Observations)
She was told that she needed an order from a Dutch Court. This was obtained and the passport re-issued. She became a Dutch citizen in 1993, and obtained a ruling in a Dutch court that her UK birth certificate should be amended. As this did not happen she initiated legal proceedings in the UK. This was appealed to the European Court of Human Rights (ECHR) in 1994.

Kristina Sheffield (also born 1946)


Sheffield was a pilot with Brittania Airways, and had 34 years experience when she transitioned in 1986.

Kristina divorced from her wife as was almost always required in the 1990s (in retrospect she felt that she had been coerced into it underhandedly), and a judge also granted an injunction banning Kristina from seeing her daughter as “transsexuals are not suitable company for children”.

She applied to every UK airline, but was always obliged to show her birth certificate which said that she was born male, which resulted in her not getting employment.


While her passport was re-issued in her new name, she was still unable to obtain a US visa, and twice in court to stand surety for a friend, was obliged to reveal her previous name. A misunderstanding with the police with regards to a replica firearm indicated that they were aware of her gender change although the topic had not come up. A request under the Data Protection Act 1984 would have required her to state all previous names.

She also appealed through the UK court system and then to the ECHR.
 




And then

 
Both cases were initially accepted by the ECHR in 1994. Kristina met with Rachel in Amsterdam. Following advice from Rachel, Kristina revised the statement of her case. This made the two cases rather similar although the circumstances were different, in that Rachel wanted to marry and Kristina to find employment. The ECHR decided to couple both appeals.

Rachel, with Kristina’s assistance researched the Ewan Forbes-Sempill case and the Corbett divorce case. They obtained the birth certificates for April Ashley, Roberta Cowell, Michael Dillon and Georgina Turtle, and the marriage certificates for Georgina Turtle and April Ashley. Only April had not had her birth certificate amended re her name and sex. From this they were able to conclude that the Corbetts’ divorce trial could have been quickly concluded in that April was still legally male and thus the marriage was invalid according to the law at that time. There was no need for the detailed medical examinations that were done. Unless, of course, something other than an annulment of marriage was being enacted.

The original birth certificate for Ewan Forbes-Sempill proved impossible to obtain, however a copy specifying his male sex and name was available. The Sempill and Corbett cases had been more about establishing the boundaries of aristocratic privilege than of determining the best governance of transsexuals.
“It was also found, that there had been prior knowledge of these birth certificates by the plaintiffs of former cases that had gone to the ECHR. They were the cases of Rees and later Cossey. None of the fact that it was possible to amend a birth certificate, within existing statute law, was ever presented to the ECHR in those cases. They were based on a demand that the UK government must change the law. The court in those cases was not prepared to demand that a government must restructure its laws. Both cases lost and this created a case law in the ECHR upon which any further cases from the UK would be accepted and judged. The ECHR works on the basis of creating its own case law upon which to judge a case presented to them and where they have none they create it. If a case challenges existing case law, then the court can examine the situation.” (Rachel Horsham .4)
In May 1996, Rachel wrote an anonymous article that was published in The Independent, "Trapped in a man's body with a woman's mind". She detailed the then lack of human rights for transsexuals in the UK; explained how HRT and reconstructive surgery have a 97% success rate and attributed the condition to an incongruence of pre-natal hormones (a theory that was accepted in the late 1990s). She rightly points to the 1970 Corbett v Corbett divorce case as the point where things went wrong.
“All that is required is for government to accept a return to the pre-1970 status quo, a move that is supported by medicine, a large section of legal opinion and many parliamentarians. There is no need for new legislation or new administrative systems; the Birth Certificate still contains a column where errors at registration can be corrected as they were before 1970. Time has shown that there were no practical complications with those corrections, and thus there is no realistic argument for not reinstating the practice. Indeed, there is every reason for regarding it as an urgent necessity.”
The ECHR gave its judgement 30 July 1998. By 11 to 9 it voted that the Article 8 right to respect for a private life was not violated (although the court noted “no steps taken by respondent State to keep need for appropriate legal measures in this area under review despite Court’s view to that effect in Rees and Cossey judgments — Court reiterates that view”). By 18 votes to 2 it voted that the Article 12 right to contract lawful marriage was not violated. Unanimously it voted that Article 14, the right not to be subjected to difference in treatment was not violated. The judgment does not address Horsham’s argument that Corbett vs Corbett was a bad judgment and a simple reversal would solve the problems.

As Rachel summarises the result on her home page:
“The United Kingdom rejected [the plaintiffs’ plea] on the grounds that under British law a person’s sex is fixed at birth and cannot be amended or changed and argued that the Court of Human Rights had given two Judgments in their favour upholding this contention in two previous cases, Rees and Cossey. The plaintiff, in her submissions, proved that the government had lied to the court in those previous cases, and that English Statute law did have the required legislation to amend a person's birth certificate, in such cases. In 1998 the court decided to uphold its case law based on Rees and Cossey and the case of Rachel Horsham was never judged on the facts presented to them.”
Rachel expanded her autobiography to include the appeal to ECHR, and published it, also in 1998.
Kristina won an employment discrimination case in 1998 at an industrial tribunal in that she was unable to obtain even an interview with Easyjet to be a pilot despite her 34 years’ experience.


Context


In 1997, after 18 years of homophobic Conservative misrule, the Labour Party became the new government. Initially it continued the Conservatives’ homophobic policies, one of which was to oppose appeals such as that by Horsham & Sheffield. The GLBT censorship known as Section 28 was not repealed until 2003.

While government lawyers were in Strasburg arguing against the petitions of Horsham and Sheffield, Petra Henderson, British but resident in Germany, had completed surgical transition and wished to be recognised legally as female, which the government quietly permitted. She had threatened to go to the ECHR and the Government wished to keep her out of the newspapers. It was insisted that this was a one-off exemption and did not set a precedent. There were some other similar one-offs, such as the UK citizen in Paris who was able to obtain a similar result with Petra's assistance. Prime Minister Tony Blair spoke of ‘joined-up government’, but this was one area where it was definitely not so.

Press for Change had been founded in 1992. It engaged with lawyers and Members of Parliament. Inevitably a slow process. A private member's bill was introduced in 1996, but as the then Conservative Government refused to endorse it, it was without success. In 2002, another appeal to the ECHR finally met with success, and two years after that the Labour Government passed the Gender Recognition Act – not perfect, but the best in the world at that time.

Comments


Rachel’s book is not listed in either Amazon or Abebooks. It is on the Dwarf Empire web page.












In recent years Rachel has self-identified as HBS, although independently of the two major strands thereof.   In 1998 the only Benjamin Syndrome movement was the Association du Syndrome de Benjamin in Paris run by Tom Reucher, Diane Potiron, Hugues Cariou, and which was inclusive unlike the HBS movement which developed after 2005.
  • "Trapped in a man's body with a woman's mind", The Independent, 1 May 1996. Online.
  • Rosa Prince. “Transsexuals in test case”. The Independent, 22 February 1998. Online.
  • “British Pilot Wins Discrimination Case”. NewsPlanet, June 1, 1998. Online.
  • Case of Sheffield and Horsham v. The United Kingdom. European Court of Human Rights, 30 July 1998. Online.
  • “UK Transsexuals lose court case”. BBC News, July 30, 1998. Online.
  • Christine Burns. “Court Judgement Criticises UK Government's Lack of Action”. PFC, 9th August 1998. Online.
  • Rachel Horsham. Release of the Dove. Dwarf Empire, 1991 and 1998.

Rachel Horsham’s Home Page

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