Johanna Westeson - The ICHRP

iv.4. Gender identity discrimination
In another United Kingdom case, Sheffield v. Air Foyle Charter Airlines, 106 the applicant
was a pilot who had undergone male-to-female gender reassignment. She had successfully
worked as a pilot for many years. When applying for a job with Air Foyle Ltd. she was
called to attend a seminar organized by the employer but was then not called for an
interview. She asserted that the sole reason she had not been called for an interview was
that she was a transsexual and that this fact had become known to the company.
The Industrial Tribunal dismissed the employer’s defense that the applicant was unable to
work in a team, was hazardous to safety, that she flaunted her femininity, and that pilots
were unwilling to fly with her. The applicant had the necessary experience, qualifications,
and a stellar record for the position. The Tribunal unanimously held that the reason or the
principal reason for the company’s decision not to call her for an interview was because of
the knowledge that she was a transsexual. This finding was evidenced by the fact that she
had originally been short listed for an interview but later removed from the list.
The Tribunal found that the applicant had been unlawfully discriminated against under the
Sex Discrimination Act 1975. The Act did still not prohibit discrimination based on gender
assignment, but the Tribunal reached its conclusion applying its provisions on sex
discrimination.
6. Concluding remarks
Non-discrimination as a principle is strongly recognized in the region, primarily within the
European Union and consequently on the domestic level in EU member states and in
accession countries. Unlike the EU bodies, the European Court of Human Rights has not
treated non-discrimination as a core principle of its jurisprudence. The European Court of
Human Rights has, nevertheless, issued important decisions clarifying and expanding what
the principle entails under the Convention. Here it should be noted that the principle is so
strong in the region and legislation so wide and varied that it is close to impossible to make
an exhaustive analysis. Merely a few concluding remarks will be made.
Marital status discrimination, after the issue was settled by the European Court of
Human Rights in Marxx v. Belgium in 1979, no longer appears to be a contentious issue in
the region. Such discrimination is virtually outlawed in law and in practice – at least with
regard to non-married heterosexual couples and their children.
The prohibition of discrimination on the basis of sexual orientation, while still not as
generally accepted as anti-discrimination based on sex, is reaching increasing acceptance.
This ground has recently been included in several constitutions and modern antidiscrimination
laws in the region tend to include sexual orientation in their lists of banned
grounds. The new Serbian anti-discrimination law serves as a good example. The entry
into force of the Treaty of Lisbon on 1 December 2009, giving the Charter of Fundamental
Rights and its prohibition of discrimination on the basis of sexual orientation primary law
status within the EU, is another landmark in this regard. The consistent term used in these
constitutions and laws is ‘sexual orientation’ (except for in the Swiss constitution) which
implies an identity-based view on sexuality rather than a behavior-based view. This
106 Industrial Tribunal, Case No. 1200389/97, decided on 29 May 1998.
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