Transsexual case puts equality law to the test

Date: 07/12/1995

By Fiona McHugh

The European Court of Justice is to decide whether or not transsexuals who have suffered discrimination in the workplace are protected by EU equal opportunities law.

An action brought by a transsexual known as 'P' against her boss, a principal of a UK school known as 'S', could stretch the limits of a 19-year-old EU directive originally designed to protect women in the workplace.

P, hired as a man, worked as a manager in a local Cornwall school until she was fired in 1992, shortly after announcing her intention to undergo a sex change.

According to P, once the school's directors discovered she was actually female, they began to treat her badly, treatment which culminated in her eventual dismissal.

That, says P, who is challenging her employers in the Luxembourg-based court, was a breach of EU equal opportunities law. Under a 1976 directive, both males and females, are guaranteed equal treatment in the workplace.

What European judges must now decide is whether or not the directive applies to transsexuals, or people who are male and female at the same time.

P argues that if she was covered by the directive while she was a male and is covered now that she is a woman, then she should also have been covered while she was making the transition from one sex to the other.

But the UK government refuses to accept the notion of any half-way state, arguing that the principle of equal treatment applies only to men and women, not to people who are a mixture of both.

It claims that the employee in question was sacked because of her decision to change her sex and not because she was male or female. In addition, the UK government says that while P may have felt like a woman, in fact she was, and still is, a man under British law.

The European Commission is supporting the UK government's case, saying that the directive defines sex in terms of physical appearance and not in terms of psychological and social sexual identity.

The Commission also accepts the school's claim that P was not discriminated against because she was a man or a woman, but rather because she was a person who chose to have a sex change.

P claims to have suffered since her birth from what is known in medical terms as Gender Identity Disorder. In other words, she asserts that she was, until her sex change, a woman trapped in a man's body.

A preliminary opinion by one of the Court's advocates-general, which is due to be published on 14 December, should give an indication of the likely outcome of the case.

Although the opinions delivered by advocates-general are not binding, they are seldom ignored by the full court.

Legal experts expect the opinion to say that P's case falls outside the scope of the equal opportunities directive.

“The words of the directive in this context are very straightforward. It would require a strange interpretation of the words to make them apply,” said one expert.

P's case has already been examined by a British industrial tribunal, which found that UK law did not cater for transsexuals and referred the case on.

Should she lose her battle in the Luxembourg court, P may still take her case to the European Court of Human Rights in Strasbourg.

Another group of transsexuals is currently challenging the UK government in the national courts for preventing people who have undergone sex changes from changing the sex indicated on their birth certificates.