The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to comply with. She had sought to be employed on the basis that her position would not be made known to her colleagues.
Held: European law recognised such discrimination as a breach of the Treaty, requiring justification. If the trans-sexual partner of an employee must be recognised in the reassigned gender for the purpose of death benefits, the employee herself must in principle be recognised in the reassigned gender for the purpose of carrying out the duties of the post. Section 54(9) of PACE must be interpreted as applying to her in her reassigned gender.
Baroness Hale recorded that the European Court of Human Rights in Goodwin had ‘held that the refusal of domestic law to recognise the reassigned gender ‘no longer falls within the United Kingdom’s margin of appreciation’. But it would be for the United Kingdom to decide how to fulfil its obligation to secure to trans people their right to respect for their private life and their right to marry.’
Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2004] UKHL 21, Times 07-May-2004, Gazette 20-May-2004, [2004] 2 WLR 1209, 17 BHRC 585, [2004] 2 CMLR 37, [2004] UKHRR 694, [2004] 2 FCR 160, [2004] 3 All ER 145, [2004] Eu LR 841, [2004] ICR 806, [2005] 1 AC 51, [2004] HRLR 25, [2004] IRLR 573
Bailii, House of Lords
Police and Criminal Evidence Act 1984 54(9), Sex Discrimination Act 1975, Equal Treatment Directive 76/207/EEC, Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/102)
England and Wales
Citing:
Cited – Sinclair v Chief Constable of West Yorkshire and British Telecommunications Plc CA 12-Dec-2000
The claimant had been prosecuted, but the charge was dismissed as an abuse of process. He now appealed a strike out of his civil claim for damages for malicious prosecution.
Held: The appeal failed. The decision to dismiss the criminal charge . .
Appeal from – A v Chief Constable of the West Yorkshire Police and Another CA 5-Nov-2002
The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .
Cited – P v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
Cited – Bautiaa and Societe francaise maritime v Directeurs des services fiscaux des Landes and du Finistere ECJ 13-Feb-1996
Europa Tax provisions – Harmonization of laws – Indirect taxes on the raising of capital – Capital duty levied on capital companies – Application to merger transactions effected by increasing the capital of the . .
Cited – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – Sheffield and Horsham v The United Kingdom ECHR 30-Jul-1998
It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .
Distinguished – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – Van Oosterwijck v Belgium ECHR 6-Nov-1980
Hudoc Judgment (Preliminary objections) Preliminary objection allowed (non-exhaustion)
The refusal of Belgium to enable the registers of civil status to reflect lawful sex-changes violated the right to . .
Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
Cited by:
Appealed to – A v Chief Constable of the West Yorkshire Police and Another CA 5-Nov-2002
The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal . .
Cited – Carpenter v The Secretary of State for Justice Admn 27-Feb-2015
The claimant, a post-operative male-to-female transsexual person, said that section 3(3) of the 2004 Act was incompatible with her Human rights after refusal of a gender recognition certificate.
Held: The application failed. The provision of . .
Lists of cited by and citing cases may be incomplete.
Discrimination, European
Leading Case
Updated: 11 November 2021; Ref: scu.196617