This is the first part of two articles looking at the history of how the transgender laws we have today came about and the decisions that were made along the way. It is hoped this will give women a deeper understanding of the laws that now impact on our single-sex spaces and services and highlight how best to challenge the aspects of today’s law that are either unclear, outdated or simply bad for women and wider society.
This article focuses on the anti-discrimination laws and how the Equality Act 2010 came about. Part 2 focuses on the laws that allowed for the legal recognition of gender change and led to the Gender Recognition Act 2004. The Equality Act 2010 is dealt with separately.
I am not a lawyer and I offer no legal interpretation of the law. I am presenting the facts based on publicly available case files and parliamentary records; all fully referenced.
“My own unofficial commentary will be indicated like this to help guide you through the article”
1) It all began in 1996….
This was the landmark case in 1996 in which the European Court of Justice (ECJ) extended the scope of sex discrimination law to also cover transsexuals.
Background of case:
P is a male born post-op transsexual who was dismissed from their post after informing their employer that they would be undergoing gender reassignment surgery (S was P’s boss at Cornwall County Council). P asserted that, despite her male physical characteristics, her true sex has always been female. She claims that she began to be treated less favourably once she declared that her true sex was female. Following an employment tribunal this case went to the European Court of Justice (ECJ) for a decision.
The decision making process:
The ECJ is the highest court of the European Union in matters of Union law, but not national law. It is not possible to appeal the decisions of national courts to the ECJ, but rather national courts refer questions of EU law to the ECJ. It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and application of the Treaties of the European Union including the Charter of Fundamental Rights of the European Union.
The ECJ should not be confused with the European Court of Human Rights (ECHR). This is an international court established by the European Convention on Human Rights. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the Convention. Leaving the EU does not affect our rights under the ECHR, as this comes from the Council of Europe, not the EU. The UK will still be signed up to the ECHR when it leaves the EU but not the ECJ.
The ECJ is assisted by an Advocates General whose role is to consider the written and oral submissions to the Court in every case that raises a new point of law, and deliver an impartial opinion to the Court on the legal solution. Advocate General Tesauro was appointed for this case and his comments shine an interesting light on the thinking at the time and the context of the final decision made by the ECJ. Here are a few extracts taken directly from his published opinion:
“The national court starts from the premise that the [human rights] Directive, in particular Article 3(1) in so far as it prescribes that ’there shall be no discrimination whatsoever on grounds of sex’, does not mean, or at least does not necessarily mean, that discrimination can exist only as between a male and a female, but may be interpreted as covering discrimination against transsexuals as well.
It will then be necessary to decide whether it is only discrimination between men and women which is covered by the expression ’discrimination on grounds of sex’ or, more generally, all unfavourable treatment connected with sex.
While it is quite true that the Directive prohibits any discrimination whatsoever on grounds of sex, it is equally indisputable that the wording of the principle of equal treatment which it lays down refers to the traditional man/woman dichotomy.
…… it seems to me only too clear that the Directive, which dates from 1976, took account of what may be defined as ’normal’ reality at the time of its adoption. It is quite natural that it should not have expressly taken into account a question and a reality that were only just beginning to be ’discovered’ at that time. However, as the expression of a more general principle, on the basis of which sex should be irrelevant to the treatment everyone receives, the Directive should be construed in a broader perspective, including therefore all situations in which sex appears as a discriminatory factor.
…….a situation is still less acceptable when the social change and scientific advances made in this area in recent years are taken into consideration. Whilst it is true, as I have already said, that transsexuals are in fact not very significant in statistical terms, it is equally true that for that very reason it is vital that they should have at least a minimum of protection. On this view, to maintain that the unfavourable treatment suffered by P. was not on grounds of sex because it was due to her change of sex or else because in such a case it is not possible to speak of discrimination between the two sexes would be a quibbling formalistic interpretation and a betrayal of the true essence of that fundamental and inalienable value which is equality.
…….. at present ’transsexual’ surgery is regarded as legal, even in those countries which still do not allow a corresponding change of civil status. This fact alone means that the law, as a result of scientific and social progress which has taken place in this area, is paying more and more attention to transsexuality, by regulating those aspects which are liable to have significant repercussions on relations in society.
As we have seen, this is borne out by the fact that in most national legal systems it is permissible to change civil status, either by virtue of specific laws or because of judicial involvement on a case-by case basis.
……transsexuals certainly do not constitute a third sex, so it should be considered as a matter of principle that they are covered by the Directive, having regard also to the above mentioned recognition of their right to a sexual identity
I am quite clear, I repeat, that in Community law there is no precise provision specifically and literally intended to regulate the problem; but such a provision can readily and clearly be inferred from the principles and objectives of Community social law, the statement of reasons for the Directive underlining ’the harmonisation of living and working conditions while maintaining their improvement’, and also the case-law of the Court itself, which is ever alert and to the fore in ensuring that disadvantaged persons are protected. Consequently, I consider that it would be a pity to miss this opportunity of leaving a mark of undeniable civil substance, by taking a decision which is bold but fair and legally correct, inasmuch it is undeniably based on and consonant with the great value of equality.
……… I regard as obsolete the idea that the law should take into consideration, and protect, a woman who has suffered discrimination in comparison with a man, or vice versa, but denies that protection to those who are also discriminated against, again by reason of sex, merely because they fall outside the traditional man/woman classification.
…..To my mind, where unfavourable treatment of a transsexual is related to (or rather is caused by) a change of sex, there is discrimination by reason of sex or on grounds of sex, if that is preferred”
|The court ruled thus:|
|“Where such discrimination arises, as in the present case, from the gender reassignment of the person concerned, he or she is treated unfavourably by comparisons with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard. Therefore, dismissal of a transsexual for a reason related to a gender reassignment must be regarded as contrary to article 5(1) of the Directive, which provides that: “Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.”|
“A broad interpretation of the law beyond simply man and woman was made to accommodate transsexual people. At the time of this ruling transsexual people had no legal protection from discrimination and this righted that wrong. However, this decision was clearly made in the light of transsexualism still being relatively rare and sex change surgeries were still essential to the transition process. A few countries already allowed changes to the sex on the birth certificate after surgery, but the UK for one still had no legal pathway for this. Although transsexual was not considered as a third sex, any discrimination due to changing sex was deemed to be a form of discrimination connected to someones sex. This ECJ ruling became the basis for anti-discrimination law for EU countries. Most nations have interpreted protection for transgender people under protections on the grounds of sex. However, the UK went further and enacted specific regulations regarding gender reassignment (see below).”
2) The UK Sex Discrimination Act was updated in 1999
Following on from the ECJ ruling the UK Sex Discrimination Act (1975) was extended to cover discrimination on the grounds of gender reassignment in employment and vocational training.
“So in 1999 we see the first incarnation of what would later become the protected characteristic of gender reassignment in the Equality Act 2010. The concept of ‘intending to undergo‘ gender reassignment is introduced. Also, we see a definition of gender reassignment being a process (or part of a process) of reassigning a persons sex by changing physiological or other characteristics of sex. However, with the notably inclusion at this stage of the process being ‘under medical supervision’. The requirement for medical supervision is later dropped when the act is repealed and replaced by the Equality Act 2010.
The 1999 extension also adds an exemption to make it legal to exclude someone intending, undergoing or having undergone gender reassignment when this is a genuine occupational requirement. We later see this same exemption carried through into the Equality Act 2010 in the Schedule 9 Part 1 Exemption: Occupational Requirement”.
3) All Equality Laws were consolidated into a single Act in 2010
The Bill was designed to harmonise and in some cases extend existing discrimination law. With regards to gender reassignment two major changes were introduced at this point:
|Extends protection from discrimination on the grounds of gender reassignment to school pupils|
|Removes the need for gender reassignment process to be under medical supervision.|
Both of these were included in the original draft bill and neither were challenged as the bill passed through the House of commons and the Lords.
The Equality Bill Committee was composed of 22 MPs who received a number of written submissions from outside bodies; most notably the transgender lobby groups GIRES, Press for Change and Gender Spectrum UK and a few women-focused organisations
GIRES requested that the Committee should consider replacing the term “gender reassignment with “gender variance“, in respect of children and adolescents. It claimed that the use of the term ‘gender reassignment’ would mean that younger gender variant children could only claim protection by making an unreliable prediction that they intend to undergo gender reassignment.
Press for change also wanted changes to the language used. They wanted the use of the word transgender in addition to the word transsexual as the terms used to describe people who share the protected characteristic of gender reassignment. For children they wanted the term Gender variance.
They also challenged some of the single-sex exemptions. They objected to the legal exemption to exclude transsexual people from single-sex services if they had started to undergo or had under gone gender reassignment. They wanted this exemption onto to apply at the very start of the process when someone was proposing to undergo and not to those people already living permanently in their preferred gender role.
They also rejected the exemption to allow for an Occupational requirement to ‘not be a transsexual person’. They could not see any valid reason why a transwoman, once living permanently as a woman, should not be allowed to do any job a biological female would do.
Gender spectrum UK also opposed the inclusion of transsexuals in the occupational requirement exemption and wanted the use of the word Gender Identity instead of Gender Reassignment to extend protections to people who are gender variant but are not proposing to reassign their gender.
There were a few written submission by women-focused organisations. None commented on Gender Reassignment. End Violence Against Women (EVAW) (a coalition including Amnesty International UK, Women’s Aid, Imkaan, Rape Crisis England and Wales, the Women’s Institute, Forward, Southall Black Sisters and the Poppy Project). Mothers’ Union, , Unison and Fawcett society ,
Only two submissions supported the need for single-sex services for women, but again without reference to the associated exemption of transsexual people. Scottish womens aid and Fitness Industry Association
Two committee members (Lynne Featherstone MP and Evan Harris MP) submitted an amendment designed to change the protected characteristic to Gender Identity and to include the term transgender. Neither were included in the final bill. No amendments were proposed in relation to the single sex services or occupation exemptions.
|The bill finally became law in April 2010 and no changes have been made relevant to gender reassignment to date.|
“Today’s anti-discrimination laws concerning gender reassignment originated from a ruling over 20 years ago by the European Court of Justice. This was a time when transsexualism was very rare and always proceeded to full sex reassignment surgery and the impact on wider society was very low. In 2010 a subtle change, but with major implications, occurred when these protections were transferred into the Equality Act. The requirement for gender reassignment to be a medical process was removed which effectively made someones inclusion into this protected group simply a matter of self-identification. Words such as transgender, gender identity and gender variant were not included in the bill but are implicit because of the removal of the medical requirement. There are no official records showing why or how this decision was made because it simply appeared in the draft bill and went unchallenged as the bill passed through parliament. However, it is worth remembering that the original case law (including all other case law leading to the Gender Recognition Act in 2004) was based on legal claims brought by post-op transsexual people. The medical process was at the heart of these issues so upon what justification did this process become de-medicalised? Was this ever a matter of public debate at the time and was the impact on wider society properly considered; it appears not.
Two thousand and ten was also the start of transgender rights extending to children and not just adults. This was achieved by removing the need for medical supervision and extending protections into schools for the first time. Schools were given their own section in the Equality Act distinct from all other services so were not constrained by old exemptions. As such there is no explicit mention in Part 6 (Education) of the Equality Act of any exemption to make it legal to exclude someone from a single-sex space based on gender reassignment.
There is also no mention whatsoever of how changing legal sex with a gender recognition certificate should be interpreted under the Equality Act. This is an interesting decision considering that the Gender Recognition Act 2004 was introduced six years before the Equality Act was passed in 2010. This leaves open the legal uncertainty of whether someones newly acquired legal sex is sufficient to confer all protections offered under the protected characteristic of sex. For example, does someone stop being classified as a transsexual once they hold a gender recognition certificate? This question must be clarified if proposed changes to allow the acquisition of a GRC simply a matter of self-declaration”.
Future changes to UK Equality Law:
Reform of the Gender Recognition Act 2004:
In 2015 the Transgender Equality Inquiry was conducted by the Womens’ and Equality Committee chaired by Maria Miller MP. It recommended, amongst other things, changes to the Equality Act 2010. This included removing the legal exemptions that currently allow transgender people to be excluded from single-sex spaces or activities. It was also recommended that the terms ‘gender reassignment’ and ‘transsexual’ get replaced by ‘gender identity’ and ‘transgender’, respectively.
However, UK government proposals to reform the GRA 2004 is not expected to involve any changes to the Equality Act 2010. Confirmation of this has been obtained by a number of constituents when their MPs have referred their concerns to Justine Greening, the Minister for Women and Equalities at the Government Equalities Office. The UK consultation has not started but Fair Play For Women will be meeting with an official at the Government Equalities Office as part of the pre-consultation engagement phase.
Notably, the Scottish government has not given assurances that it will not require changes to the Equality Act in relation to Scotland. It is unclear how the extra devolution powers granted by the Scotland Act 2016, following the Independence referendum in 2015, will impact on the options open to the Scottish government regarding Equality Law. This section will be updated when more information in available.
Impact of Brexit:
The Government published a White Paper which has provided some clarity about how equality and human rights concerns will be addressed following the UK’s departure from the EU.
|Existing EU law in place at the point the UK leaves the EU will be preserved ‘wherever possible’|
|The protections in the Equality Acts 2010 will be retained after we leave the EU|
|Current European Court (ECJ) case law will be preserved, but the Bill will not provide any role for the ECJ in the interpretation of new laws and will not require UK courts to consider future ECJ case law.|
It appears there are no immediate plans for the UK government to amend the Equality Act as part of gender recognition reforms or as a consequence of leaving the EU. The original case law upon which the Equality Act 2010 was based will be preserved despite the expectation that the UK’s will no longer be under ECJ jurisdiction. Nevertheless it is important that the possibly of any future weakening to exemptions is strongly opposed by women who value single-sex spaces if and when the UK consultation on gender law begins. In fact opportunities to strengthen and clarify these exemptions should be sought.
It is important that women’s voices are heard by the Scottish government. The Scottish consultation process is currently open and due to close on 1st March 2018. It is open to anyone and you do not need to be resident in Scotland.
For more information please see the Fair Play For Women document called:
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