The purpose of this paper is to examine the contours of evolving jurisprudence on offensive expression and negative messages, and to suggest that it can best be understood by reference to the concept of stigma. At the European Court of Human Rights, there appears to have been an increasing willingness to recognise the harm of offensive expression through an interpretation of Article 8 of the European Convention on Human Rights, but the reach of this case law remains uncertain. In particular, while some cases associate negative expression with negative stereotyping, not all of these cases do, and there are potential conflicts with freedom of speech. In the domestic context, these issues recently arose in a significant case from the Court of Appeal, R (Crowter) v Secretary of State for Health and Social Care. In this case, the appellants argued that a legal provision sends a negative ‘message’, through the negative stereotyping of disabled people, but this ‘message’ is implicit, rather than explicitly articulated. While these developments raise important questions about the future evolution of case law, we propose that a focus on stigma can more clearly highlight the harms involved.

This paper considers the legality of the UK practice of prosecuting trans people for sexual offences on the basis of deception as to gender history, a practice unknown in other member states. It argues that such prosecutions may constitute an unjustified violation of Article 8 of the European Convention on Human Rights. Moreover, it argues that where criminal prosecution falls within the scope of Article 8 but is viewed as objectively justified under Article 8(2), it may constitute a violation of Article 14. The paper will proceed as follows. Part 2 will provide some background context regarding prosecution of trans people for deception as to gender history in the UK. Part 3 will set out the current law pertaining to sexual fraud in England and Wales. Part 4 will present two arguments as to why prosecutions based on current English law, or Crown Prosecution Service interpretations of it, may violate Article 8: (1) a right to respect for privacy is undermined by lack of legal certainty regarding the threshold of criminal liability; and (2) deception as to gender history ought not to be considered a material deception serving to vitiate consent as a matter of law. Part 5 will consider the issue of potential discrimination under Article 14.

Property-based models of the ownership of body parts are common. They are inadequate. They fail to deal satisfactorily with many important problems, and even when they do work, they rely on ideas that have to be derived from deeper, usually unacknowledged principles. This article proposes that the parent principle is always human dignity, and that one will get more satisfactory answers if one interrogates the older, wiser parent instead of the younger, callow offspring. But human dignity has a credibility problem. It is often seen as hopelessly amorphous or incurably theological. These accusations are often just. But a more thorough exegesis exculpates dignity and gives it its proper place at the fountainhead of bioethics. Dignity is objective human thriving. Thriving considerations can and should be applied to dead people as well as live ones. To use dignity properly, the unit of bioethical analysis needs to be the whole transaction rather than (for instance) the doctor-patient relationship. The dignity interests of all the stakeholders are assessed in a sort of utilitarianism. Its use in relation to body part ownership is demonstrated. Article 8(1) of the European Convention of Human Rights endorses and mandates this approach.

State responsibility — Nature and kinds of State responsibility — For wrongs unconnected with contractual obligations — Acts and omissions of State organs and officials — Exhaustion of domestic remedies — European Convention on Human Rights and Fundamental Freedoms 1950, Article 26 — Whether Article of Convention to be relied on expressly before domestic courts — Whether complaints before domestic courts relating to conduct in breach of Convention provisions relied on before Convention institutions

State responsibility — Damages — Award of damages in general — European Convention on Human Rights and Fundamental Freedoms 1950, Article 50 — Just satisfaction — Request for compensation for prejudice suffered through unjust deprivation of liberty — Equitable determination of — Restitutio in integrum

Disputes — Other international courts — European Court of Human Rights — Admissibility of complaint — European Convention on Human Rights 1950, Article 25 — Extent of jurisdiction of EuropeanCommission of Human Rights — Whether complaints raised on applicant's own initiative — Date of decision of admissibility — Whether application has object and purpose — Whether application to be struck off the list

The individual in international law — In general — Human rights and freedoms — European Convention on Human Rights and Fundamental Freedoms 1950, Article 5(1) — Unjust deprivation of liberty — Order of Italian court obliging alleged mafioso to reside in restricted area under police supervision — Whether conditions and implementation of residence amounting to deprivation of liberty — Whether justified under Article 5(1) paras. (a)-(f)

Article 8 — Respect for private and family life — Compatibility of compulsory residence order — Article 9 — Freedom of religion — Article 3 — Whether compulsory residence amounting to inhuman or degrading treatment — First Protocol to Convention, Article 2 — Right to education

Fourth Protocol to Convention — Non-ratification by State party to Convention — Article 2 — Restriction of movement and place of residence — Comparison between this provision and Article 5 of the Convention

Article 25 — Admissibility of application — Extent of jurisdiction of European Commission of Human Rights — Whether complaints before Commission raised on applicant's own initiative — Date of decision on admissibility — Whether application having object or purpose — Whether application should be struck off the list

Article 26 — Exhaustion of domestic remedies — Whether provisions of Convention to be relied on expressly before domestic courts — Whether complaints raised before domestic courts relating to conduct in breach of Convention may be relied on before Convention institutions

Article 50 — Just satisfaction — Request for compensation for prejudice suffered — Equitable determination of — Restitutio in integrum

The individual in international law — Human rights and freedoms — European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) — Right to a fair hearing in the determination of civil rights and duties — Decree of judicial separation — Only available in High Court — Legal aid not available — Complexity of High Court procedure making it difficult for person to represent herself — Whether a breach of Article 6 (1) resulting from combination of absence of legal aid and complexity of legal procedure

Article 8 — Right to respect for family life — Whether sometimes involving right to relief from duty of cohabitation — Applicant frequently beaten by husband — Divorce not available — Applicant unable to obtain decree of judicial separation because of cost and complexity of only legal procedure available — Whether State in breach of Article 8 by failing to provide accessible procedure for relieving Applicant of duty to cohabit with husband

Article 14 — Discrimination — Position of this provision in scheme of Convention

Article 50 — Compensation — When question ready for decision

Article 26 — Exhaustion of domestic remedies — Availability of other procedures for securing separation from spouse — Voluntary agreement between parties — Order barring molestation of wife — Whether failure to seek such agreement or order a failure to exhaust local remedies — Relevance of alternative procedures — Whether failure to appear in person before High Court a failure to exhaust local remedies — Whether possibility that Applicant would not in fact benefit from decree of judicial separation relevant in considering question of exhaustion of local remedies