Transgender EuroStudy – Legal Survey and Focus ... - ILGA Europe

17 April 2008
An Overview: EU Antidiscrimination
Legislation
In recent years the European Court of Justice 4 (ECJ), the Court of Human Rights 5 (ECHR), and
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. and National Health Service Pensions Agency and Richards v
Secretary of State for Work and Pensions, P v S created the principle that European 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 and Equal Treatment of
Men and Women in Matters of Employment and Occupation (2006/54/EC); and extended to include
protection in goods and services by the Directive on the Principle of Equal Treatment between Men and
Women in the Access to and Supply of Goods and 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 and
Commission in the minutes of the 2606th meeting of the Council of the European 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 and services should be
in place for trans people since the publication of the Directive (2004/113/EC) in the European Official
Journal in December 2004. Unfortunately, when most Legal Centres and NGOs were asked about the
protection, very few knew enough about the law to advise people correctly, and trans people
continued to believe they have no protection against discrimination in accessing goods and 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 and Cornwall
County Council (Case C-
13/94) [1996], IRLR 347;
K.B. and National Health
Service Pensions Agency,
Secretary of State for
Health (Case C-117/01)
[2004]; and Richards v
Secretary of State for
Work and 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]; and L v
Lithuania Application
No. 27527/03 ECHR,
[2007].
6
Amended by Directive
2006/54/EC.
7
Council of the
European Union 2606th
meeting of the Council
of the European Union
(Employment,
Social Policy, Health
and 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].