Europe

The applicant was born a male but after undergoing gender re-assignment surgery became a woman physically and psychologically capable of sustaining a normal heterosexual sexual relationship with a man. However, she continued to suffer humiliation and psychological distress every time she had to present her unamended identity documents, such as passport or driving licence, since she was routinely subjected to embarrassing questions about her private life and sexual background. She applied to have her name and sex on her birth certificate changed in order to reflect her new status as a woman, but the director of the public registry refused. The applicant sought a declaration from the Constitutional Court that the refusal, together with the failure of Maltese law to accommodate the needs of transsexuals, violated her right to privacy under Art 32(c ) of the Constitution and Art 8 of the European Convention of Human Rights (ECHR) and that her birth certificate and other identity documents be amended accordingly. She further argued that her treatment at the hands of officials amounted to cruel and inhuman treatment contrary to Art 36 of the Constitution and Art 3 of the ECHR.

In declaring that the applicant's privacy rights had been violated, it was held that:

1. Although the hardships suffered by the applicant were unnecessary they do not amount to inhuman or degrading treatment as defined by the Constitution and the ECHR. Degrading treatment requires at the very least severe mental or physical suffering which is not the case here even applying a subjective test and considering the vulnerability of the applicant (Tonio Vella v. Kummissarju tal-Pulizija et., (1991) Constitutional Court Vol. LXXV.i.106, pp.139-141 considered).
2. However, it is clear that the applicant has suffered a breach of her right to respect for her private life (Lawrence sive Roxanne Cassar v. Prim Minister et., (1995) and Raymond sive Rachel Gilford v. Director of Public registry (1997) applied). The state has failed in its duty to accommodate the needs of transsexuals since, in addition to its primary negative undertaking to abstain from interfering in a person's private life, it is also subject to certain inherent positive obligations. These may involve the adoption of measures designed to secure respect for private life in the sphere of relations between individuals (X and Y v. Netherlands (1985) 8 EHRR 235 para 23 applied).
3. In this regard, intrusive inquiries into a transsexual's gender status can be minimised by allowing them to be issued with driving licences, passports and other types of official documents in their new name and gender, and by discouraging the use of birth certificates as a means of identification (Sheffield and Horsham v. U.K. (1998) 27 EHRR 163 considered).
4. Any document issued by the state or by any state authority identifying the applicant (with the exception of birth certificates), such as identity cards and passports should indicate the applicant as being of female sex and that she is called Tracy and not Joseph.
5. Birth certificates are intended to record a historic fact and the state is right to keep their contents as objective and determinate as possible. Moreover, in this case the applicant cannot avail herself of the normal legal procedures for changing her name since she is unable to prove that she used her new female name from the moment she had to identify herself outside her family circle, e.g. at school. Therefore amending the applicant's birth certificate is not a suitable remedy.
6. However, although the birth certificate should not be changed, a document should be attached to it stating that all of the applicant's other documents have been modified to reflect her new sex and name.