<strong>Transgender</strong> <strong>and</strong> Transsexual <strong>Legal</strong> Concerns in <strong>Europe</strong>
17 April 2008 An Overview: EU Antidiscrimination Legislation In recent years the <strong>Europe</strong>an Court of Justice 4 (ECJ), the Court of Human Rights 5 (ECHR), <strong>and</strong> recent directives have afforded some very specific legal rights to trans people. In the case of P v S & Cornwall County Council in 1996, the ECJ held that the Equal Treatment Directive (76/207/EEC) 6 provided protection against discrimination to trans people in employment. Asserted again in the pension cases of K.B. <strong>and</strong> National Health Service Pensions Agency <strong>and</strong> Richards v Secretary of State for Work <strong>and</strong> Pensions, P v S created the principle that <strong>Europe</strong>an sex anti-discrimination legislation protects individuals on the basis of their gender role, not the sex given to them at birth. This has been further confirmed by the Directive on Equal Opportunities <strong>and</strong> Equal Treatment of Men <strong>and</strong> Women in Matters of Employment <strong>and</strong> Occupation (2006/54/EC); <strong>and</strong> extended to include protection in goods <strong>and</strong> services by the Directive on the Principle of Equal Treatment between Men <strong>and</strong> Women in the Access to <strong>and</strong> Supply of Goods <strong>and</strong> Services (2004/113/EC). Though this directive itself does not mention trans people, protection to those “intending to undergo, undergoing or who have undergone gender reassignment” is implemented by a statement from the Joint Council <strong>and</strong> Commission in the minutes of the 2606th meeting of the Council of the <strong>Europe</strong>an Union. 7 Member States were to implement this later directive into national law by 21 December 2007. As yet it is not clear if any State has specifically included trans people in the implementation of the directives in national law. 8 However, in the case of Mangold v Helm 9 , the ECJ stated that it: “is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of (age), setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired”. 10 So, in principle, this protection against discrimination in accessing goods <strong>and</strong> services should be in place for trans people since the publication of the Directive (2004/113/EC) in the <strong>Europe</strong>an Official Journal in December 2004. Unfortunately, when most <strong>Legal</strong> Centres <strong>and</strong> NGOs were asked about the protection, very few knew enough about the law to advise people correctly, <strong>and</strong> trans people continued to believe they have no protection against discrimination in accessing goods <strong>and</strong> services. Most agencies felt uneasy about taking cases because they had no guidance from prior jurisprudence. The Court Decisions: the ECHR Cases brought before the ECHR concerned people who are known as transsexual because they undergo gender reassignment treatments. From the early case of Van Oosterwijck v Belgium 11 several of the cases brought were unsuccessful in advancing the rights of trans people. However, there was a small success in the case of B v France 12 when the Court held that: 4 P v S <strong>and</strong> Cornwall County Council (Case C- 13/94) [1996], IRLR 347; K.B. <strong>and</strong> National Health Service Pensions Agency, Secretary of State for Health (Case C-117/01) [2004]; <strong>and</strong> Richards v Secretary of State for Work <strong>and</strong> Pensions (Case C-423/04) [2006]. 5 Christine Goodwin v UK Government, Application No. 28957/95 ECHR, [2002]; I v UK Government, Application No. 25608/94 ECHR, [2002]; Grant v United Kingdom, Application No.32570/03 ECHR, [2006]; <strong>and</strong> L v Lithuania Application No. 27527/03 ECHR, [2007]. 6 Amended by Directive 2006/54/EC. 7 Council of the <strong>Europe</strong>an Union 2606th meeting of the Council of the <strong>Europe</strong>an Union (Employment, Social Policy, Health <strong>and</strong> Consumer Affairs), held in Luxembourg on 4 October 2004. 8 Though we do know the UK proposed regulations but these were withdrawn at the very last minute due to political problems. 9 Mangold v Helm (Case C-144/04) ECJ [2005]. 10 Ibid para 79(2) 11 Van Oosterwijck v Belgium (Application No. 3/1979/31/46) ECHR, [1980]. 12 B v France (Application no 57/1990/248/319), ECHR, [1982].
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