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Is He Our Sister? Sex, Gender, and Transsexuals Under European Law

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Lecturer-in-Public Law
Department of Public Law
The University of Edinburgh

Copyright © 1997 Andrea C Loux.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

* The author wishes to thank Mr GT Laurie and Mrs C Boch, both of the University of Edinburgh, for their invaluable assistance in preparing this article.


Summary

The question of the legal sex identity of transsexuals holds fascination for scholars throughout Europe because it highlights the continuing significance in law of distinctions based on sex. A new chapter in the legal saga of transsexualism in Britain has begun with the decision of The Court of Justice of the European Communities (ECJ) in the case P v S [1996] IRLR 347. In that case, the ECJ held that to discriminate against a transsexual on the basis of his or her transsexualism constitutes sex discrimination within the meaning of the Equal Treatment Directive unless the discrimination "can be justified". The question of when an employer may lawfully derogate from the Directive must now be decided by Britain's courts. This Article examines the case of M v Chief Constable, Birmingham Industrial Tribunal Case No. 08964/96 (20/12/96) (unreported), where an employment tribunal held that the police could lawfully derogate from the Directive and refuse to hire a transsexual. It argues that because an English born transsexual's legal sex is incongruent with his or her gender, English courts must distinguish between the biological category of sex and the social category of gender when evaluating derogations from the Directive. Parts I-III discuss the sex/gender dichotomy and how these categories are implicated in the question of the legal status of English born transsexuals in domestic and EC law. Part IV examines the IT decision in M v Chief Constable. Part V analyses the question of permissible derogations in EC law as they apply to English born transsexuals and proposes a model for adopting a sex/gender distinction in English law.


Contents

1. The Sex/Gender Dichotomy

2. The Legal Sex Identity of the English Transsexual

3. Transsexuals and European Community Law

4. M v Chief Constable

Sex and Social Purpose

5. Sex, Gender and Derogations from EC law in the English Courts

Article 2(2) and Physical Searches

Conclusion

Bibliography


1. The Sex/Gender Dichotomy

A transsexual, is someone who has the chromosomes, genitalia and reproductive organs of one sex, but is convinced that he or she belongs to the opposite sex. Whilst some transsexuals wish to be considered "transgendered" members of their birth sex, transsexualism most often manifests itself in a desire to be the opposite sex, with its attendant gender characteristics, from that sex which the transsexual is without surgical and hormonal intervention. For most transsexuals it is only the limited technology of intervention to change biological characteristics that prevents them changing their biological sex rather than merely their gender.

The term "sex" refers to a person's biology, i.e. one's chromosomes, gonads (presence or absence of testes or ovaries), genitalia, hormones and secondary sex characteristics, such as hair, breast development, and physique. Reassignment surgery and hormone therapy can affect some but not all of the biological sex characteristics. "Gender" refers to social characteristics associated with biological sex. In sex and gender studies, the distinction between the terms "sex" and "gender" emphasises the socially constructed nature of gender characteristics. In Corbett v Corbett [1970] 2 WLR 1306, which defined the sex identity of transsexuals for the purposes of marriage, Justice Ormrod, himself a doctor, included psychological factors as part of the "sexual condition" of an individual. There is now a substantial debate whether those psychological factors are biological or social in origin (see P v S [1996] IRLR 347, 350). Whatever its origin, however, there little doubt that psychology is largely socially constructed; therefore for the purposes of this article, psychology is defined as a social or gender characteristic.

Even having defined the terms "sex" and "gender", the social scientist may find it difficult in the case of a transsexual to distinguish a sex from a gender characteristic. For example, appearance is largely socially constructed and can be changed by adopting traditional social indicators of biological sex, such as hair style, clothes, wearing make-up, etc. Ultimately, however, the presence or absence of appropriate secondary sex characteristics, and in some circumstances genitalia, influences the ability of a transsexual to completely adopt the appearance (or gender) of the opposite sex.

The scientist, too, has difficulty differentiating between the sex and gender characteristics of the transsexual. In P v S [1996] IRLR 347, 350 "[t]he applicant produced a great number of learned articles which claim that the causes of the condition are to be found in biological dysfunctions which are therefore present already at birth, or else in psychological disorders linked to environment". In fact, the denomination of the medical condition commonly called transsexualism varies to reflect this difference in views and is described as either Gender Identity Dysphoria or Sex Identity Dysphoria. The fundamental reason for this uncertainty is that science itself is "gendered" or socially constructed. Moreover, the law plays a significant role in the social construction of medical treatment and scientific research. Experts stress that full treatment of the transsexual "is only successfully completed when his [or her] sexual identity is fully and in all respects recognized by law". Cossey v UK [1990] 13 EHRR 622, 645 (Martens, J, dissenting)

In order to achieve full recognition of their change in sex identity, transsexuals seek to change the law of birth registration in England to permit them to amend their birth certificates. A key argument of campaigners is that SID is a biological condition. In the words of Terrence Walton, solicitor for April Ashley in the case Corbett v Corbett, "[t]he use of the words 'gender', 'gender identity' and 'gender role', useful when talking to psychiatrists, are a form of political correctness. These are words given to us to disguise our meaning. When I say sex I mean sex and when I say transsexual I mean transsexual, that is, someone whose sex was not wholly completed at birth." (Walton 1995, p 1828).

The most recent challenge to the policy of England's Registrar of Births, Deaths and Marriages that the sex-designation of post-operative transsexuals remains their birth sex was made in part on the basis of new scientific evidence of the biological basis of transsexualism. The applicants in R v Registrar of Births, Deaths & Marriages, ex parte P & G [1996] 2 FCR 588, [1996] Fam Law 469, cited the research paper produced by Dr Russel Ried as part of the Parliamentary Forum on Transsexualism. In this paper, Dr. Ried states that although "[c]urrent medical knowledge recognises that an absolute etiology for transsexualism is not available . . . the present weight of evidence is in favour of a biologically-based, multifactorial causality. It is considered, therefore, that scientific knowledge of transsexualism has progressed considerably since Corbett v Corbett and that the evidence presented there is no longer reliable". P & G also cited the work of Professor Gooren, which claims that transsexuals have a brain structure that is not consonant with their other biological sex characteristics. (LEXISTranscript: John Larking).

The High Court was sympathetic with the plight of the applicants but noted the significant controversy surrounding the medical research presented. Even accepting the research, however, the court held that several issues still remained, including the question of the historical nature of the birth certificate (since the biological condition will be undiagnosed at birth) and whether it must be amended once the anomaly is discovered. Given this, the court could not hold on judicial review that the Registrar's actions reached the level of "irrationality".

Science cannot define the sex of the transsexual with certainty and any such definition will always be contestable. Gender, being socially constructed, is also fluid, however convinced the transsexual is of his or her own identity. Certainty, however, is a desirable characteristic in law. In the English courts, the desire to achieve certainty by declaring the sex identity of the English born transsexual as fixed at birth has created enormous difficulties for English born transsexuals because the legal sex identity of the transsexual is incongruent with of his or her gender and many of his or her sex characteristics. This Article analyses anti-discrimination law as it applies to English born transsexuals in England. It argues that so long as a transsexual cannot change his or her legal sex, anti-discrimination principles require that courts and tribunals must distinguish between sex and socially constructed gender when resolving employment discrimination claims.

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2. The Legal Sex Identity of the English Transsexual

As mentioned above, the sex designation on the birth certificate of a post-operative transsexual in England cannot be changed, although s/he is free to change his or her name and to change the sex designation on various official documents such as a driver's license and passport (see R v Registrar of Births, Deaths & Marriages, ex parte P & G [1996] 2 FCR 588, [1996] Fam Law 469; Cossey v UK [1990] 13 EHRR 622). Furthermore, it has been held in a series of cases that if a law at issue specifically refers to sex, a post-operative transsexual will be considered to be his or her birth sex. This legal position began with Justice Ormrod's decision with regard to a post-operative transsexual's ability to marry in Corbett v Corbett, and was extended to the criminal law in R v Tan [1983] 2 All ER 12, for purposes of "certainty and consistency." Since Tan, the Corbett test has been adopted to classify transsexuals as their birth sex for civil purposes such as pension rights, employment and parental rights. Cossey v UK [1990] 13 EHRR 622; M v Chief Constable Birmingham Industrial Tribunal Case No. 08964/96 (20/12/96); X, Y, Z v UK (No. 75/1995/581/667) (1997) 23 April.

The refusal to amend the birth certificate of a post-operative transsexual has been upheld by the High Court on judicial review in Ex parte P & G and has been held to be in keeping with Britain's obligations under the European Convention on Human Rights and Fundamental Freedoms, most recently in Cossey v UK (1990) and B v France [1992] 16 EHRR 1. In Cossey, the applicant challenged the position of the Registrar on the basis of Article 8 of the Convention, which guarantees the "right to respect for . . . private . . . life". Miss Cossey's argument was that she was forced to reveal a private detail about her life (her birth sex) whenever she had to produce her birth certificate. The court held that the interests of Miss Cossey in not revealing her birth sex did not place a positive obligation on the English government to change "the very basis of its system for the registration of births, which was designed as a record of historical facts" ([1990] 13 EHRR 622, 640).

The English law on the legal sex identity of transsexuals was most recently upheld in the case B v France in contradistinction to the French position, where the refusal of the authorities to amend the civil status registrar to reflect a transsexual's change of sex was found to violate the Convention. Unlike in Britain, the court found that in France birth certificates are not mere records of historical facts, but rather are intended to be updated throughout a person's life. Thus the system of registering births would not be upset by amending the birth sex of the transsexual (see B v France [1992] 16 EHRR 1, 31). Furthermore, the refusal of the French authorities to change B's forename and the ubiquitous use the French INSEE, or Social Security number, which indicates the sex of the individual and is used on documents such as payslips and cheques, implicated a far stronger privacy interest of the French-born transsexual than that of the English born Cossey. On balance, the small change to the system and the strong privacy interest meant that the French system had to change to protect B's Article 8 interests, whilst the English system could be maintained under the court's margin of appreciation doctrine (see B v France [1992] 16 EHRR 1, 34).

Miss Cossey also claimed a violation of her Article 12 right to marry. Article 12 guarantees "men and women of marriage age . . . [a] right to marry . . . according to the national laws governing the exercise of this right." The court held that whilst some states permitted a post-operative transsexual to marry a person of his or her birth sex, the requirement in the UK that marriage be between persons of opposite biological sex (as defined in Corbett, i.e. birth sex) did not "restrict or reduce the right in such a way or to such an extent that the very essence of the right was impaired" ([1990] 13 EHRR 622, 640). Thus the Corbett decision was a "national law" in keeping with the spirit of Article 12, which largely leaves the regulation of marriage to the governments of the signatory states. The decision was made on the mistaken belief that Miss Cossey's inability to marry a woman (the opposite sex to her birth sex) was due to social factors rather than legal impediments. As Professor Norrie has pointed out, however, the English law of marriage requires consummation (see Norrie 1990, p 356). Thus English law does vitiate a transsexual's right to marry because a post-operative transsexual's marriage to an opposite birth-sex partner will always be voidable.(1)

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3. Transsexuals and European Community Law

In 1996 the ECJ entered the ever growing debate on the rights of transsexuals - this time in the area of employment in the case P v S and Cornwall County Council (ECJ) [1996] IRLR 347, [1996] Family Law 609. P was employed as a manager in an education establishment run by the county council and was dismissed whilst she was on leave for sex reassignment surgery. The industrial tribunal made an Article 177 reference to the ECJ to determine if dismissing an employee on the grounds of her transsexualism violated the Equal Treatment Directive. The European Court of Justice held that dismissing a transsexual on the basis of having gender reassignment surgery violates Article 5(1) of the Directive. This is because the principle of equality, which is one of the fundamental principles of Community law, ensures that a person should not be discriminated against on the grounds of sex. Thus, the Equal Treatment Directive is meant not merely to prevent discrimination as and between men and women, but to prevent discrimination on the basis of the category of "sex". In the words of the Advocate General, the Directive embodies the principle of the "irrelevance of a person's sex with regard to the rules regulating relations in society" (see[1996] IRLR at p 352).

Whilst Advocate General Tesauro used the word "sex" to bring transsexuals within the ambit of the Equal Treatment Directive, he was referring to "sex . . . as a convention, a social parameter", in other words gender (see[1996] IRLR at pp 351-352). He analogised discrimination against transsexuals with that aimed at women:

"The discrimination of which women are frequently the victims is not of course due to their physical characteristics but rather their role, to the image society has of women. Hence the rationale for less favourable treatment is the social role women are supposed to play and certainly not their physical characteristics. In the same way it must be recognized that the unfavourable treatment suffered by transsexuals is most often linked to a negative image, a moral judgement which has nothing to do with their abilities in the sphere of employment." (2)

In order to achieve equality in the sphere of employment in the European Union, the ECJ dispensed with the narrow male/female biological comparator (as they had already done in Dekker v. Stichting Vormingscentrum voor Jong Volwassesnsen (VJV-Centrum) Plus, [1990] ECR I-3941) and reiterated the European view that "sex discrimination" encompasses discrimination on the basis of gender.(3)

Other groups in Britain have already reaped the rewards of this expansion in scope of the Directive. In March, Mr. Justice Lightman referred the question of "gays in the military" to the ECJ to ask whether the Equal Treatment Directive extends to gays and lesbians. In making his reference he stated that "it may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the court . . . ensure that those of homosexual orientation are no longer disadvantaged in terms of employment, save and unless discrimination is justified". (The Scotsman 14/3/97 'Judge backs gay sailor against military ban').

The military was discriminating not as and between men and women (at least not in this case), but as and between Terry Perkins, a gay man and other straight men. As the ECJ based its decision in P v S on the principle of equality as well as protecting the dignity and freedom of the individual, it is likely that sexual orientation will also be found by the ECJ to be irrelevant to most categories of employment.

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4. M v Chief Constable

Even as gays and lesbians had reason to celebrate, transsexuals were once again experiencing discrimination at the hands of the law. This is because individual nation states may lawfully derogate from the Directive.(4) In M v Chief Constable (Birmingham Industrial Tribunal Case No. 08964/96 (20/12/96)) (cited hereinafter as "M"), the refusal of the police service to hire M on the grounds that M was a post-operative male-to-female transsexual was held to be a lawful derogation from the Treatment Directive under Article 2(2), which states:

"This Directive shall be without prejudice to the rightof member states to exclude from its field of application those occupational activities and where appropriate the training thereto, for which, by reason of theirnature, or the context in which they are carried out, the sex of the workerconstitutes a determining factor."

The West Midlands police argued that M could not be a fully operational police officer because she could not legally perform searches. Under the Police and Criminal Evidence Act 1984 (PACE) and the Codes pursuant thereto, any search of a person, other than the most cursory, must be carried out by an officer of the same sex. If the person to be searched were a female, M, as a legal male, would be legally barred from searching her. Indeed such a search, absent consent to be searched by a transsexual, would be an indecent assault (see M at p 9). If the person to be searched were a male, then the search would be contrary to the principle's of decency and privacy embodied in the Codes because M appears as a female (see M at p 14). These principles were held to be vital to the goal of PACE to police by consent and to minimise the embarrassment felt by those being searched (see M at p 18).

The conundrum that ultimately justified the discrimination against M arises because M cannot legally change her sex. If she could have changed her sex, and therefore be brought within the confines of PACE and the Codes thereunder, the West Midland Police said that although "[i]t might still create difficulties with the public if they discovered they were being, or had been, searched, not by the apparent woman before them but by a transsexual . . . the respondent would accommodate her" (see M at p 9).

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Sex and Social Purpose

M was seeking to be "regarded and treated as a female" for the purposes of employment. A birth certificate is only prima facie evidence of a person's sex. The European Court of Human Rights found in Rees v UK [1986] 9 EHRR 56, and accepted in Cossey v UK, that "[in] the United Kingdom no uniform, general decision has been adopted either by the legislature or the courts as to the civil status of post-operative transsexuals". Given the flexibility to change sex on legal documents such as a passport, the court in its Rees judgment indicated in a rather oblique reference that it believed that the UK does recognise a change in sex for some social purposes.(5)

This finding at the time of the Cossey judgment was doubtful given the de facto reliance on the Corbett test in all social contexts where sex must be defined in law. The European Court of Human Rights, since the tribunal's decision in M , has held in X, Y, Z v UK (No. 75/1995/581/667) (1997) 23 April that "English law defines a person's sex by reference to biological criteria at birth and does not recognise that it can be changed by reassignment surgery". The court also recognized the UK's interest in legal consistency on the question of the legal sex identity of transsexuals.

In X, Y, Z, X was a female-to-male transsexual, whose partner, Y, had given birth to four children through donor artificial insemination (AID) (represented by Z in the action). X sought to register as the children's father pursuant to the Human Fertility and Embryology Act 1990. Section 28(3) of the HFEA states that when an unmarried mother gives birth to a child through AID with the involvement of her male partner, the partner shall be treated for legal purposes as the father of the child. The Registrar General refused to register X as the legal father because he is not legally a man. X, Y, and Z argued that this constituted an impermissible interference of their Article 8 right "to respect for. . . family life". X was not seeking to change his birth certificate, but rather to be registered as Z's father on her birth certificate.

The Court held that the UK decision was within the margin of appreciation granted to signatory states and thus did not violate Article 8. States are granted a wide margin of appreciation of distinct national policies when a common legal position on the policy at issue cannot be discerned amongst the member states of the Council of Europe. As no such common position on filiation of children born by AID exists, it was left to the court merely to determine whether a fair balance had been struck between the interests of the applicants and the UK. The Court noted that X Y and Z did not face undue hardship because Z already used X's surname, and X could be granted a residence order conferring on him parental rights and duties (although in the event of separation or his partner's death, this order would not apply) (see X, Y, Z v UK,No. 75/1995/581/667 at para 48). The UK's interest, however, was strong because "such an amendment [to Z's birth certificate] might have implications in other areas of family law . . . and might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a 'father' in law while still being treated for other legal purposes as female and capable of contracting a marriage to a man". (See, mutatis mutandis, the criticism of Norrie, above).

The court in X Y, Z held that consistency in the legal sex identity of transsexuals is an important state interest and disavowed the finding in Rees and Cossey that UK courts had not adopted a position on the civil sex status of the post-operative transsexual. The decision, however, does not affect the industrial tribunal's decision in M. Whilst the tribunal accepted that "a person may be regarded as male or female for different social purposes", it followed English precedent and refused to declare M a female for the purposes of employment by the police because medical science had not yet advanced to the point where a transsexual could be found to have changed their sex (see M at p 5).

But is the science of sex the issue? It is interesting to consider that the West Midlands Police said that they could accommodate a transsexual so long as she could conduct lawful searches (see M at p 10). In admitting this, the police are in essence saying that sex, in the case of police work, is only important as a technical matter. Gender, the social characteristics that society attributes to sex, is the important category. Indeed they recognise this by giving transsexual suspects the choice of which sex to be searched by where the law permits (see M at p 8). The tribunal did not need medical science to tell it what gender Miss M is, they determined that when they agreed that for her to search a man would violate notions of decency and privacy (see M at p 9). The difficulty is that PACE uses the biological category of sex as a signifier, or proxy, for the social category of gender.

Clearly in the case of a police person conducting a search it is not his or her chromosomes that are at issue. It is not the state of his or her genitalia. It is not a question of sexual orientation; openly gay and lesbian officers perform same-sex searches. The concerns that Parliament had in requiring that searches be conducted by an officer of the same sex as the subject do not actually implicate the biological category of sex. The policy is based on social assumptions about gender. Gender characteristics that the law presumes attach to a particular sex include physical appearance (to ensure decency) and qualities of empathy, which are largely a question of psychology and socialisation. In the case of M, the tribunal found that at her last place of employment M had "used female facilities, and was accepted by her female colleagues". The tribunal also had "no doubt that she [M] could pass for a woman: nobody, unless they knew of her circumstances, would question her sex" (see M at p 8).

Given this lacunae in PACE, did actions of the West Midland Police constitute a lawful derogation? The tribunal considered referring the case to the ECJ to determine "whether the Directive should be interpreted in such a way as to render unlawful provisions of PACE and the Codes whereby a police officer, charged with the duty of searching persons in particular circumstances, must be of the same sex as the person to be searched, but is a transsexual, and by appearance and presentation therefore apparently of the same sex as the person to be searched" (see M at p 12). The tribunal ultimately decided that such a reference was unnecessary given the approval of the Corbett test by both English courts and the European Court of Human Rights as recently as 1996 (see M at p 13).

The tribunal, however, wrongly relied on the precedent of the ECHR to determine whether the refusal to hire M violated the Equal Treatment Directive. The Cossey case was bounded by the text of Article 8 (respect for private life) and Article 12 (right to marry and found a family). Whilst Miss Cossey claimed her case implicated Article 14, "freedom from discrimination on any ground such as sex" in the "enjoyment of rights and freedoms set forth in . . . [the] Convention", no right under the Convention was found by the European Court of Human Rights to be implicated in the sex identity of transsexuals under English law.(6)

The European Court of Justice, in elucidating the fundamental right to equality, was arguably more free to identify and declare unlawful discrimination against transsexuals because the principle of equality so clearly encompasses both sex and gender discrimination. The police discriminating against M had nothing to do with questions of Article 8 "privacy". The institution of marriage, protected by Article 12, in English law requires consummation and thus implicates questions of a post-operative transsexual's genitalia, i.e. biological sex. European Community law, however, is concerned with discrimination on the basis of gender - that is taking gender into account in employment decisions where it should be irrelevant. Given the strong European principle of equality, it is at least arguable that the same-sex search provisions of PACE and the Codes, insofar as they apply to transsexuals, are themselves discriminatory and do not justify an Article 2(2) derogation.

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5. Sex, Gender and Derogations from EC law in the English Courts

The question of whether reasons provided by an employer to justify discrimination constitute a permissible Article 2(2) derogation are largely left to the national courts (see Johnston v Chief Constable, [1984] ECR 1651, 1687; Ward 1996, p 168). The decision of the European Court of Human Rights in X, Y, Z negates the argument made by M that transsexuals can change their sex for particular social purposes; nevertheless, it can still be argued that English courts must evaluate derogations in terms of the sex/gender dichotomy.

The principle behind the Equal Treatment Directive, and the derogations permitted thereunder, is that sex and gender should be irrelevant to employment decisions save those instances where sex constitutes a determining factor. The ECJ, perhaps with all deliberation, does not distinguish sex from gender because the principle of equality demands that both sex and gender characteristics are deemed irrelevant in employment. The Article 177 reference with regard to whether gays and lesbians come within the Equal Treatment Directive attests to the success, from the perspective of anti-discrimination law, of the strategy of simply defining "sex" in expansive terms.

Similarly, English law has never recognized a sex/gender distinction. Thus the terms "male", "female" and "sex" signify in law both biological sex and social gender. So long as transsexuals were not covered by the Equal Treatment Directive, this conceptual sloppiness was not legally relevant. Since P v S, however, the position has changed.

In English law sex and gender are presumed to be congruent because in the overwhelming majority of cases they are. In the case of the transsexual, this presumption is false. So long as an employer could lawfully discriminate against a transsexual on the basis of his or her transsexualism without falling foul of the Equal Treatment Directive, the transsexual's incongruence presented no issues of unlawful discrimination. With the expansion of the terms of the Directive to include transsexuals, however, tribunals and courts must now determine what it means to discriminate against a transsexual on the basis of his or her transsexualism. All employment laws and practices that make distinctions on the basis of sex are potentially discriminatory because they were not drafted with the transsexual's incongruency in mind. Likewise permissible derogations when made on the basis of the male/female sex comparator may be impermissible when applied to a transsexual.

In determining whether an Article 2(2) derogation should apply in a case where a transsexual is being discriminated against by an employer, the national court or tribunal must determine whether "the sex of the worker constitutes a determining factor" for training or employment. Because an English transsexual's sex and gender are not congruent, it must be determined whether a transsexual's sex or genderis the "determining factor" implicated in the law at issue. To merely accept the designations "male", "female", and "sex" in English law and practice as non-discriminatory without more analysis risks allowing derogations to swallow the rule embodied in the Directive and P v S. This is because those terms have always been employed without consideration of either transsexuals or their fundamental rights in EC law.

To explore this position, let us examine some of the derogations currently permitted in English law. We begin with the fashion industry. One category of employment where sex is a determining factor is the modelling of women's clothes. Could an employer refuse to hire a model such as "Bond Girl" and transsexual April Ashley because he did not like transsexuals as a group? Under the Directive the answer is clearly no because to do so would be to discriminate against her on the basis of an irrelevant characteristic. An employer may discriminate on the basis of sex if it is a determining factor, and exclude all other legal males from the catwalk, but not April Ashey (or model Miss Cossey) on the grounds of either her legal male sex or her status as a transsexual.

Of course, if the gender reassignment were less than successful a transsexual could be excluded from the catwalk on the basis of her appearance. The question would then become whether she was discriminated against because of her transsexualism or because of other permissible factors. The ability of a transsexual to undertake a job where sex is a determining factor may hinge on the success of the gender reassignment. Given the demands of the modelling industry, a tribunal could find that discrimination against a male-to-female transsexual on the basis of her appearance is lawful. In jobs where appearance is not a "determining factor", however, a transsexual's appearance is likely to be so linked to the sex characteristic of transsexualism that to discriminate against her on that basis would violate the Directive. Where appearance is a determining factor, the degree to which gender reassignment must be successful will vary with the job category.

The leading UK case heard by the ECJ on Article 2(2) derogations was the case Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. In that case, the RUC successfully argued that their refusal to employ women as full-time members of the reserve force was a lawful derogation from the Directive. A key government argument, accepted by the ECJ, was that a policewoman carrying firearms in the context of Northern Ireland could be more at risk of assassination. Could the same be said of a successful female-to-male transsexual? Absent the information "getting about" in the terrorist community, his gender would insulate him from the considerations that would make other "females" more vulnerable.

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Article 2(2) and Physical Searches

Both of these examples demonstrate that sex categories used in employment law and practice were not designed to take account of the transsexual's incongruency of sex and gender. But what of the question of conducting searches posed in the case of M? Even if the tribunal had differentiated between sex and gender, it is likely that they would have held that congruency of sex and gender is a determining factor to be employed as a police officer. The tribunal did find that such congruency (or "conformity") would be a "genuine occupational qualification" under the Sex Discrimination Act 1975 because "[m]atters of privacy and decency could . . . arise where a female transsexual carries out the function of a female police officer" (see M at p 17).

The finding was obiter dicta because the tribunal held that the SDA did not apply to transsexuals, but then in a rather bizarre fashion went on to analyse M's case under the Act anyway for the "sake of completeness". The tribunal refused to apply the SDA because the "Act contains no express provisions relating to transsexuals, and proceeds on the basis of a comparison between a legal male and a legal female. The comparison propounded in P v S [between a male and a male who has undergone reassignment surgery] is not permissible" (see M at p 15). The tribunal claimed that to extend the terms of the Act would be to "dis-apply the Act" and this the tribunal could not do (see M at p 17).

The decision that transsexuals do not come within the ambit of the SDA did not affect the result of the case because the tribunal applied the Equal Treatment Directive directly to the police as an emanation of the state. The tribunal recognized that jobs which involve physical contact are more likely to fall within permissible derogations from the Directive because European law permits the taking into account of personal sensitivities when determining that an Article 2(2) derogation applies to a field of employment (see Commission v. UK [1983] ECR 3431, [1984] 1 CMLR 44). Thus even if M had been referred to the ECJ, the court may well have concluded that a transsexual police officer, by virtue of his or her transsexualism, is not competent to search any member of the public. Arguably, though, the industrial tribunal in M permitted the derogation without sufficient legal analysis.

The tribunal did not provide much by way of reasoned support for its belief that a male-to-female transsexual cannot perform all the duties of a female officer, including conducting searches. It did state (again obiter dicta) that "although [they had] seen the applicant and consider her to be in appearance very feminine, it is not improbable that her transsexualism would become known. Such information does get about, in our experience, and the criminal fraternity would quickly seek to use the information to their advantage" (see M at pp 17-18).

Article 2(2) derogations, however, must be narrowly construed (see Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651). The tribunal accepted that M "would pass for a woman and . . . a sympathetic employer, carefully managing the situation, would experience little difficulty with this applicant", yet did not go on to find that the police are, or should become, such a "sympathetic employer" (see M at p 8). By simply relying on the definition of sex in Corbett to determine whether an Article 2(2) derogation applied in the case of M, the tribunal failed to take account of the discriminatory nature PACE as it applies to transsexuals. They also failed to give proper weight to the willingness of the police to "accommodate" M if the law demanded that they do so.

In a member state where a transsexual's sex and gender identity are incongruent, European law arguably requires tribunals and courts to look behind the words "male", "female" and "sex" when evaluating the lawfulness of employers' discriminatory practices against transsexuals. Such analysis would ensure that Article 2(2) derogations are narrowly construed exceptions to the general rule of non-discrimination and are based on genuine biological and social distinctions. The tribunal in M conducted no such analysis either of PACE, the Codes, or police practices. Had they done so, there is a possibility that the result would have been different. If for example a distinction could be made between transsexuals conducting intimate as opposed to ordinary searches, then the transsexual officer could have been more easily accommodated. (7)

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Conclusion

Whatever would have been the result in M if such an analysis had been conducted, it is clear that it is not sufficient for employment tribunals to rely on European Court of Human Rights precedent in making rulings under the Equal Treatment Directive. Whilst the ECHR guarantees many rights, it does not enshrine protection against discrimination save in those area of life covered by the Convention. In the fundamental rights jurisprudence of the ECJ, the principle of non-discrimination is far stronger. This is due, in part, to the purview of EC law. The nations of Europe are unified in the belief that sex and gender are irrelevant to most categories of employment. The same cannot be said of institutions protected by the ECHR, such as marriage.

The ECJ's decision in P v S provides a window of opportunity for feminists and others concerned with sex discrimination to articulate the sex/gender distinction in English law. Good analysis does not always yield good results. The danger of adopting such a strategy is that sex categories will be reified rather than deconstructed in the process. The common law leaps of reasoning that carried forward the Corbett test from marriage to crime and thence to pensions and policing are an object lesson in how precedent can permanently engender discrimination. Yet given the present state of affairs, the adoption of this mode of analysis could yield results not only for transsexuals but for all those who seek to eliminate legal distinctions based on outmoded stereotypes and social prejudice.

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Bibliography

Boch, C (1996) 'Commentary Case C-32/93, Webb v EMO Air Cargo (U.K.) Ltd., [1994] ECR I-3567' 33 Common Market Law Review 547.

Norrie, K (1990) 'Transsexuals, the Right to Marry and Voidable Marriages in Scots Law' Scots Law Times 353.

Pannick, D (1985) Sex Discrimination Law (Oxford: Clarendon Press).

Walton, T (1995) 'Transsexuals: the goal in sight' New Law Journal 1828.

Ward, I (1996) A Critical Introduction to European Law (London: Butterworths).

Wintemute, R (1997) 'Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes' 60 Modern Law Review 335.

Footnotes

1. A male-to-female transsexual has no penis and a female-to-male transsexual cannot achieve a natural erection: see Corbett v Corbett [1970] 2 WLR 1304, 326. Back to text.

2. Of course in the area of discrimination against women, this is not strictly true. Much of the discrimination suffered by women is due to the unique biological sex characteristic of the capacity to bear children, a fact recognized in European law (see Boch 1996, p 552). Back to text.

3. Robert Wintemute argues in a recent article that the ECJ did not dispense with a comparator in either Dekker or P v S and that "comparison is necessary and possible with regard to pregnancy and transsexualism". (Wintemute 1997, p 351). He argues that P was dismissed because the college did not wish to employ a chromosomal male that would (post-surgery) have female physical sex characteristics and dress as a woman. According to Wintemute, a comparison can be made between P, a chromosomal male who would have female sex characteristics and appearance, and a chromosomal female who would have the same. Thus, even without expanding the category of sex to encompass gender, P's case was one of direct discrimination.
Without wishing to take issue with the correctness of this argument (first put forward by David Pannick over a decade ago), I would argue that it is important for advocates of human rights to build upon the progressive nature of the elucidation of the principle of equality expressed by the ECJ in P v S, rather than reduce the judgment to a formalistic interpretation of the Directive. Back to text.

4. In P v S, the ECJ stated that dismissal of a transsexual on the grounds of his or her transsexuality is unlawful "unless the dismissal could be justified under Article 2(2)". No such derogation was argued by Cornwall County Council. Back to text.

5. The court found "[i]t is also clear that the United Kingdom does not recognise the applicant [a female-to-male transsexual] as a man for all social purposes": Cossey v UK [1990] 13 EHRR 622, 631. Back to text.

6. Similarly, in R v Registrar of Births, Deaths & Marriages, ex parte P & G, the High Court was constrained by the judicial review test of "irrationality". Back to text.

7. In Wylie v Dee & Co. (Menswear) Ltd. [1978] IRLR 103, the industrial tribunal held that where physical contact would be rare and could be conducted by other employees, a shop could not lawfully refuse to hire a female. See also Pannick 1985, p 243. Back to text.