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FOURTH SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no. 35968/97
by Carola VAN KÜCK
against Germany
The European Court
of Human Rights (Fourth Section), sitting on 18 October 2001 as a Chamber
composed of
Mr A. Pastor Ridruejo, President,
Mr G. Ress,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää, judges,
and Mr V. Berger, Section Registrar,
Having regard to the
above application introduced with the European Commission of Human Rights on 20
November 1995 and registered on 6 May 1997,
Having regard to
Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to
examine the application was transferred to the Court,
Having regard to the
observations submitted by the respondent Government and the observations in
reply submitted by the applicant,
Having deliberated,
decides as follows:
THE FACTS
The applicant, Carola van Kück, is a German national,
born in 1948 and living in Berlin.
The respondent
Government are represented by Mr Stöhr, Ministerialdirigent.
Upon her birth, the
applicant was registered as of male sex, with the forenames Bernhard Friedrich.
In 1990 the
applicant instituted proceedings before the Schöneberg District Court, asking
it to change the forenames to Carola Brenda.
On 20 December
1991 the District Court granted the applicant’s request. The court found that
the conditions under section 1 of the Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der
Geschlechtszugehörigkeit in besonderen Fällen) were met in the applicant’s
case. In particular, having heard the applicant and having regard to the
written opinions of the psychiatric experts Prof. R. and Dr O. of
28 August 1991 and of the psychological expert Prof. D., it
considered that the applicant was a male to female transsexual and had been for
at least the last three years under the constraint of living according to these
tendencies. There was a high probability that the applicant would not change
these tendencies in future.
In 1991 the
applicant, respresented by counsel, brought an action with the Berlin Regional
Court against a German health insurance company. Having been affiliated to this
company since 1975, the applicant claimed reimbursement of pharmaceutical
expenses for hormone treatment. The applicant further requested a declaratory judgment
to the effect that the defendant company was liable to reimburse 50% of the
expenses for gender reassignment operations and further hormone treatment.
On 20 October 1992
the Berlin Regional Court decided to take expert evidence on the questions of
whether or not the applicant was a male to female transsexual; whether or not
her kind of transsexualism was a disease; whether or not the gender
reassignment operation was the necessary medical treatment for the
transsexuality and whether or not this medical treatment was generally
recognised in medical science.
The psychiatrist Dr
H., having examined the applicant in January 1993, delivered his opinion in
February 1993. He confirmed that the applicant was a male to female transsexual
and that her transsexuality had to be regarded as a disease. He further
indicated that the gender reassignment operation was not the only necessary
medical treatment in case of transsexuality. In the applicant’s case, he
recommended such an operation from a psychiatric-psychotherapeutic point of
view, as it would further improve her social situation. He noted that the
gender reassignment operation was not generally recognised in science and that
there were several comments in litterature questioning whether the operation was
the real effective factor; however, it could be assumed that the fact that
transsexuals accepted themselves and their body contributed to their
stabilisation. According to him, many transsexuals reached such stability only
after an operation. In his view, this was the case for the applicant and an
operation should therefore be approved. The expert concluded that the gender
reassignment operation formed part of the medical treatment of a mental
disease.
On 3 August 1993 the
Regional Court, following an oral hearing, dismissed the applicant’s claims.
The court considered that under the relevant provisions of the General
Insurance Conditions (Allgemeine Versicherungsbedingungen), governing the
contractual relations between the applicant and her private health insurance,
the applicant was not entitled to reimbursement of medical treatment regarding
her transsexualism.
In its reasoning,
the court, having regard to the opinion prepared by Dr H. and to the
expert opinions prepared in the proceedings before the Schöneberg District
Court, considered that the applicant was a male to female transsexual and that
her state had to be regarded as a disease. The question of whether the medical
treatment was recognised in medical science was irrelevant. In the court’s view, hormone treatment
and gender reassignment operations could not reasonably be considered as
necessary medical treatment. Having regard to the relevant case-law of the
Federal Social Court, the court found that the applicant ought to have had
first recourse to less severe means, namely an extensive psychotherapy of 50 to
100 sessions, such as proposed by the psychiatric expert Prof. D. and
refused by the applicant after 2 sessions (NB: according to the Government, the
original manuscript decision referred to 24 sessions). The court was not
convinced that, on account of the applicant’s resistance to therapy, the
intended operation was the only possible treatment.
Moreover, the
Regional Court found that the evidence did not show conclusively that the
gender reassignment measures would relief the applicant’s physical and mental
grievances, a further criterion for assuming their medical neccessity. The
expert Dr H. had merely recommended the operation from a
psychiatric-psychotherapeutic point of view as it would improve the applicant’s
social situation. His submissions, according to which the effect of the gender
reassignment operation was often overrated, did not show that the gender
reassignment measures were necessary for medical reasons. The court had not, therefore,
been required, ex officio, to issue
the expert with a summons to explain his opinion orally.
On 11 October 1993
the applicant lodged an appeal with the Berlin Court of Appeal. In the written
appeal submissions, the applicant objected to the findings of the Regional
Court to the extent that the necessity of gender reassignment measures was
denied. The applicant also submitted that she had unsuccessfully attended
psychotherapy sessions of between 24 and 35 sessions. In these respects, she
referred to the written expert opinions and also mentioned the possibility to
hear these experts.
In the course of
these appeal proceedings, the applicant underwent the gender reassignment
operations.
On 27 January 1995
the Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional
Court’s findings that the expert Dr H. had not confirmed the necessity of
gender reassignment measures. The applicant had therefore failed to prove that
the conditions for reimbursement of medical treatment were met in her case.
The Court of Appeal
further considered that, in any event, she was not entitled to reimbursement
under section 5.1(b) of the Insurance Conditions on the ground that she had
herself deliberately caused the disease.
Referring to the
details of her anamnesis as contained in the expert opinion of Dr O. of August
1991, the Court of Appeal found in particular that the applicant had been born
as male child and did not claim that she was female on account of chromosomal
factors. Initially, she had not
adopted female behaviour. On account of her male orientation, she had been able
to resist to feelings that she would have preferred to be a girl and that this
would have been more correct, and had controlled her emotional life at an early
stage.
The Court of Appeal
considered that the applicant had
continued to live as a man. In its view, the applicant’s ‘fear of bigger boys’
at school was not gender-specific. Furthermore, applying with the armed forces
did not advocate female feelings, and she had left the armed forces not because
of the feeling that she was a ‘woman’, but because she had experienced
degrading treatment. In 1971, the applicant had met her later spouse, likewise
a sign of her male orientation. The spouses had wished to have a child.
According to the
Court of Appeal, the ‘turning point’, as stated by the applicant, had been the
moment when, after an unsuccessful operation in 1986, she had realised that she
was infertile. The Court of Appeal quoted the following passage from the expert
opinion of 1991:
“The recognition
that he was infertile is a decisive factor confirming the subsequent
transsexual development.”
It continued in the
following terms:
“Fully aware of this
position, the plaintiff concluded for herself: “If you cannot have children, you
are not a man”, and as a consequence she went one step further and wanted to be
a woman from then on. She had never otherwise felt that she was, or that she
had to become, a woman, but was merely making a statement that she could do
without a penis and still have satisfying relations with his [sic] wife (...)
Doing without the one is not the same as an irresistible desire for the other.
In furtherance of the self-imposed goal of wishing to be a woman, from December
1986 she took - without medical advice, assistance or instruction - female
hormones (...).
That was deliberate. Having recognised - no doubt painfully -
that she could not have children, she decided to distance herself from her past
as a man ... It was this
deliberate act of self-medication that led the plaintiff ever more to her
decision that she wanted to be a woman and to look like one, although it was
biologically impossible. This was based on her limited preparedness or ability
to reflect critically (...) but was faultily deliberate because the plaintiff
was at all events at that stage in a position to see what the consequences of
her "self-medication" would be, and to act accordingly.
...”
On 25 October 1996
the Federal Constitutional Court refused to admit the applicant’s
constitutional complaint.
COMPLAINTS
The applicant
complains about the German court decisions refusing her claims for
reimbursement of gender reassignment measures and also of the proceedings
concerned.
She submits that the
courts did not duly consider the context of the proceedings for changing her
forenames and that references to the respective expert opinions were partly
wrong. In particular, the Court of Appeal arbitrarily reasoned that she had
herself deliberately caused her transsexuality, ignoring her requests to hear
the psychiatric experts involved in these and the previous court proceedings.
Moreover, the Court
of Appeal had referred to personal details of her curriculum vitae, as stated
in the files concerning the proceedings to change her forenames, without considering
them in their proper context.
The applicant also
considers that the Court of Appeal had discriminated against her as a male to
female transsexual, when arguing that having recognised that she could not have
children, she decided to become a woman.
She invokes Articles
6 § 1, 8, 13 and 14 of the Convention.
THE LAW
1. The applicant complains about
the alleged unfairness of German court proceedings concerning her claims for
reimbursement of medical expenses against a private health insurance company.
She invokes Article 6 § 1 of the Convention, which, as far as
relevant, reads as follows:
“In the
determination of his civil rights and obligations ..., everyone is entitled to
a fair ... hearing ... by [a] ... tribunal...”
The Government
contend that the proceedings as a whole were fair. In their view, the applicant
had the possibility to put forward all relevant arguments and to adduce
evidence.
They submit that the
Berlin Regional Court took evidence on the question whether the operation in
question was a necessary medical treatment and took the conclusions of the
expert Dr H. duly into account. Likewise, the Court of Appeal fully considered
the medical expert opinion and, at an oral hearing, it gave the applicant a
further opportunity to comment on the matter. The German courts’ interpretation
of the insurance contract between the applicant and the health insurance
company, in particular of the necessity of medical treatment could not be
objected to under the Convention. The burden of proof had been on the applicant
as the insured person. The expert had not unequivocally affirmed the medical
necessity of an operation, but had recommended the operation from a
psychiatric-psychotherapeutic point of view. The Court of Appeal had concluded
therefrom that the operation was not necessary as a medical treatment, even
though the applicant’s social situation could be improved. The courts further
had regard to the proceedings concerning the change of the applicant’s
forenames.
Furthermore, as the
written expert opinion was conclusive, the Regional Court and the Court of
Appeal had not been obliged to summon the expert.
Moreover, the Court
of Appeal, taking into account the defendant’s submissions, had to take
evidence on the question of whether the applicant had herself deliberately
caused the disease. The court assessed this matter on the basis of an
expertise, prepared by Dr O. in the context of the proceedings before the
Schöneberg District Court concerning the change of forenames. In the first
instance proceedings, the applicant had agreed that these files be consulted.
According to the
Government, this expert opinion contained sufficient elements concerning inter alia her early youth, her military
service and her marriage to support the conclusion that the applicant had
herself deliberately caused her transsexuality. In this respect, the Court of
Appeal had correctly noted that the applicant had started hormone medication
without prior consultation with a medical practitioner.
The applicant
objects to the Government’s submissions. She maintains that German courts
arbitrarily interpreted the notion of “necessary medical treatment” in a narrow
sense. In her view, the expert had recommended her operation without
hesitation. However, in particular the Court of Appeal transposed general views
on transsexualism on the medical opinion of Dr H. and required the operation to
be the only possible treatment.
She also considers
that the Court of Appeal should not have drawn conclusions from a written
expert opinion prepared in the context of a previous set of court proceedings
without hearing the expert Dr O.
She only agreed to the consultation of these files in order to avoid
repeated taking of evidence on her sexual orientation. The experts had never
situated the biographical information concerned in the context of the question
whether she had herself deliberately caused her transsexuality. Moreover, in
her expert opinion, Dr O. had only stated that the applicant’s infertility
had contributed to the development. The Court of Appeal’s conclusion, without
medical expertise, that her hormone treatment brought about her transsexuality
was arbitrary.
2. The applicant also invokes
Article 14 of the Convention in conjunction with Article 6 in relation to the
above German court decisions. Article 14 reads as follows:
“The enjoyment of
the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The Government
submit that the German courts did not discriminate against the applicant on
account of her transsexuality. Any person claiming that the costs of surgical
operations be borne by a health insurance company must have a valid claim and,
in case of dispute, adduce relevant evidence. In respect of medical treatment
of transsexuals, evidence had to be furnished for the sexual orientation and
the reasons thereof. Determining whether or not a disease had been deliberately
caused applied to all insured persons. For a transsexual, hormone treatment was
relevant circumstantial evidence. The Court of Appeal’s evaluation and
assessment of evidence did not disclose any discrimination.
In the applicant’s
submission, the findings of the Court of Appeal are arbitrary and infringe her
personal integrity. In this respect, she notes that her sexual orientation had
been established in the context of the proceedings before the Schöneberg
District Court.
3. The applicant further
considers that the impugned court decisions violate her right to respect for
her private life. She invokes Article 8 of the Convention which, as far as
relevant, reads:
“1. Everyone
has the right to respect for his private ... life ...
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.”
The Government
contend that the Court of Appeal duly considered an expert opinion prepared in
the context of preceding court proceedings. They repeat that the applicant had
agreed to the consultation of these files. The Court of Appeal had highlighted
some elements in the said expert opinion in order to show that the applicant
had herself deliberately caused her transsexuality. It did not criticise the
applicant’s sexual orientation nor had it regarded this orientation as
reprehensible or inadmissible. Rather, the fact that the Court of Appeal
referred to the circumstance that the applicant was meanwhile living as a woman
showed that it had accepted and respected her sexual identity. The Court of
Appeal was, however, obliged to consider the applicant’s personal development
in deciding whether her claim against the insurance company was valid.
The applicant
considers that the Court of Appeal did not respect her sexual identity when
projecting an image of her personality which was based on misconstrued facts.
When looking at her male past, the Court of Appeal regarded various episodes as
disclosing a male orientation without considering the efforts to repress the
feeling of a different identity. It thereby disregarded the development of her
personality and sexual identity.
4. The applicant also alleged,
for the reasons already put forward in connection with the alleged violation of
Article 8 taken in conjunction with Article 14 of the Convention, that she was
discriminated as transsexual in the exercise of her right to respect of her
private life.
According to the
Government, it is common ground that in order to prove the validity of specific
claims, medical data and intimate details had to be disclosed. In this respect,
there was no discrimination between transsexuals and other insured persons.
The applicant
considers that the Court of Appeal’s approach to find, on the basis of the file
and without taking evidence, that she had herself deliberately caused her
disease, clearly shows discrimination between transsexuals and other patients.
5. The Court has examined the
applicant’s complaints and the submissions of the parties and finds that
serious questions of fact and law arise, which are of such complexity that
their determination should depend on an examination of the merits. The
application cannot, therefore, be regarded as manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. No other grounds for declaring it
inadmissible have been established.
For these
reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Vincent Berger Antonio
Pastor Ridruejo
Registrar President