Sex discrimination and transsexuals: recent Developments
Transsexualism: a discrimination issue
The Sex Discrimination (Gender Reassignment) Regulations 1999 have been in force since 1 May 1999. The Regulations amended the Sex Discrimination Act 1975 to provide the right for transsexuals not to be discriminated against. In EOR 85 (May/June 1999), we analysed the Regulations and their likely impact. In this article, Hilary Slater (1 ) explains developments in the law and examines the caselaw to date.
People with gender dysphoria or gender identity disorder, often referred to as transsexuals, live with a conviction that their physical anatomy is incompatible with their true gender role. Estimates of numbers of transsexuals in the UK vary from approximately 1,550 to 5,000.
Medical recognition has been relatively recent. Diagnostic criteria were not published until 1980. Public awareness of the nature of the condition is increasing. However, enquiries to the Equal Opportunities Commission (EOC) confirm that transsexuals still face discrimination of a very basic nature, and social exclusion. They have difficulty getting into employment. Also, they are likely to suffer the indignity of being singled out and isolated at work and to be dismissed for reasons connected with their condition or subjected to adverse treatment short of dismissal. If dismissed, transsexuals are likely to have particular difficulty in getting new employment.
Transsexuals may change their name and records, such as driving licence and passport, to reflect their new identity. However, the UK is among a small minority of European countries in which transsexual people cannot change their birth certificates. The Court of Appeal in Bellinger v Bellinger [2001] EWCA Civ 1140 confirmed last year that a transsexual's sex, for the purposes of marriage law, remains the sex at birth, so a male-to-female transsexual remained a biological male and was unable to marry another biological male. The EAT recently followed this decision in Chief Constable of West Yorkshire Police v A [2002] IRLR 93(see box 1) in finding that someone who had undergone gender reassignment, and wanted to join the police force, remained legally the sex of her birth.
An interdepartmental working group on transsexual people, set up by the Home Secretary, reported in April 2000. The group identified three options for the future:
A White Paper, Civil Registration: Vital Change, which was published on 22 January 2002, includes a proposal for a move away from the traditional "snapshot" of life events towards the concept of a "living record". It suggests that, in time, updating the information in a birth record will mean that changes to a person's sex could potentially be recorded.
Discrimination law and gender reassignment
The first judicial recognition that there could be protection under sex discrimination laws against discrimination related to gender reassignment came in the EOC-assisted case of P v S and Cornwall County Council [1996] IRLR 347 (EOR 68A). The European Court of Justice (ECJ) held that discrimination for a reason related to gender reassignment was contrary to the Equal Treatment Directive (ETD): "Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment."
Dismissal of such a person would be contrary to the Directive unless article 2(2) applied (which was not suggested in this case), which allows member states to exclude from the scope of the Directive occupations for which the sex of the worker constitutes a determining factor.
The EAT decision in Chessington World of Adventures Ltd v Reed [1997] IRLR 556 (EOR 75B), another EOC-assisted case, held that s.1(1)(a) of the Sex Discrimination Act 1975 (SDA) (the definition of direct sex discrimination) could be interpreted consistently with the ECJ's ruling in P v S so claims of discrimination on grounds of gender reassignment could be brought under the SDA. The EAT concluded that where the reason for the unfavourable treatment is sex-based, that is, a declared intention to undergo gender reassignment, there is no requirement for a male/female comparison to be made.
The SDA was amended with effect from 1 May 1999 by the Sex Discrimination (Gender Reassignment) Regulations 1999 to include express provisions making unlawful, in relation to employment and vocational training, less favourable treatment than other persons on grounds that someone intends to undergo, is undergoing or has undergone gender reassignment. A summary of the Regulations is set out in box 2. A guide to the Regulations was produced by the Department for Education and Employment (as it then was) which outlines good practice but has no statutory force.
Press for Change, a campaigning organisation, has published Transsexual people in the workplace: a Code of Practice2. The Code was produced as part of the UK Parliamentary Forum on Transsexualism. Although the Code has no legal status, it provides detailed guidance for employers on issues which may be encountered in the application of the Regulations.
Discrimination on grounds of gender reassignment in the provision of goods, facilities and services, education and housing
The SDA prohibits discrimination on grounds of sex in the provision of goods, facilities and services, education and housing. Claims in relation to breaches of these provisions are brought in the county courts.
The 1999 Regulations do not apply to discrimination outside the employment field, except in relation to vocational training. The ETD does not apply, except in relation to vocational training. There are proposals for a new European Directive based on article 13 EC Treaty to ensure equal treatment for women and men in matters other than occupation and employment, which may cover discrimination on grounds of gender reassignment outside the employment field.
There are currently no express provisions, therefore, prohibiting discrimination on grounds of gender reassignment in the provision of goods, facilities, services, housing or education (except in relation to vocational training). However, there is a strong argument that s.1(1)(a) SDA does cover such discrimination. The EAT's interpretation of s.1(1)(a) in Chessington as covering discrimination on grounds of gender reassignment, although dealing with a case of discrimination in employment, would be persuasive authority, for a court considering the application of the definition of discrimination, to discrimination on grounds of gender reassignment occurring in another context. The 1999 Regulations did not amend s.1(1)(a) SDA or expressly overrule Chessington.
A counter-argument is that parliament cannot have intended the SDA in its original form to cover discrimination on grounds of gender reassignment since it later introduced, by the 1999 Regulations, express provisions concerning discrimination on grounds of gender reassignment, and it restricted those provisions to employment and vocational training.
However, the Human Rights Act 1998 provides additional arguments for interpreting the SDA to cover discrimination on grounds of gender reassignment outside the employment field. Article 14 of the Convention prohibits discrimination where another Convention right is engaged. Article 14 prohibits discrimination on grounds of sex but does not specifically refer to discrimination on grounds of gender reassignment. However, the list is non-exhaustive and forms of discrimination not listed have been held to be a breach of Convention rights, eg discrimination on grounds of sexual orientation. Discrimination on grounds of gender reassignment where another Convention right is engaged is, therefore, likely to be contrary to the Convention -either on the basis that this form of discrimination is a form of discrimination on grounds of sex, or that it is another form of prohibited discrimination covered by the provision, although not specifically listed. The most likely Convention rights to be engaged in this context are article 8 (right to respect for private and family life) and article 10 (freedom of expression).
The EOC is not aware of any decided cases concerning discrimination on the grounds of gender reassignment outside the employment and vocational training fields. However, the EOC assisted three cases on this issue which have settled, with compensation being paid to the claimants. All three cases concerned exclusion from pubs for reasons related to gender reassignment: Ring v Meenaghan; Ring v (1) Gardner (2) Joseph Holt; Jones v Woodhead.
1 Hilary Slater is a solicitor and was a principal legal officer with the Equal Opportunities Commission 1994-2001. She acted for Anne Ring and Lisa Jones in cases assisted by the EOC concerning discrimination on grounds of gender reassignment in the provision of goods, facilities and services. Hilary Slater is now a consultant with Cobbetts, solicitors, of Manchester and writes the case summaries in the case digest section of EOR.2 Available on the Press for Change website at www.pfc.org.uk.