Use of Litigation in the UK to advance trans rights

Christine Burns MBEFriday 24th September 2010

About Press for Change• Formed in 1992

• “To campaign to achieve equality and human rights for all trans people in the UK through legislation and social change

• 7 Vice Presidents

• Non-hierarchic, facilitative, approach

• No office, no secretariat. A bedroom-based campaign

Trans rights in the UK in the early 1990’s

• Unchanged since 1970

• Defined by outcome of Corbett v Corbett case (April Ashley) in 1970 and R v Tan 1974

• Not affected by Sex Discrimination Act (1975)

http://www.pfc.org.uk/node/319

Trans Rights in 1992• Change name

• Change documents

• Change birth certificate

• Marry in assigned gender

• Employment protection

• Goods, services, housing

• Rape / sexual offences

YES

YES

NO

NO

NO

NO

NO

Case 1 – P vs S and Cornwall County Council• Unfair dismissal on notification of intended transition

• Employer believed standard comparator (man vs woman) meant there was no sex discrimination

• Employment tribunal sought ECJ ruling on application of Equal Treatment Directive

Case 1 – Key Points

• Plaintiff anonymity / reporting restrictions

• Novel comparator

• Advocate Tesauro’s recommendation(Changing sex is an ‘aspect’ of sex)

See also Diane Schroer v Library of Congress for very similar circumstances and outcome

… 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.

from Advocate General Tesauro’s opinion

Case 1 – Outcome• Immediate EC-wide effect

• UK Government amended SDA in 1999(but note special exceptions)

• Forced employers to address transition rather than getting rid of the ‘problem’

• 11 years later, still no evidence of detriment to society

• Hasn’t eliminated discrimination

Case 2 – X, Y & Z vs UK

• Legal parenthood

• Pursuing the right accorded to non-married cis-gender male partners to place their name on birth certificate of female partner’s children

• Case framed around the child’s rights

Case 2 – Outcome• Lost, but… ECHR recognised the existence of ‘family life’X, Y & Z v UK held that in determining whether arelationship can amount to “family life” numerousfactors may be relevant; “including whether a couplelive together, the length of their relationship andwhether they have demonstrated commitment to eachother by having children or by any other means.”In this case a transsexual man, his female partnerand child constituted “family life” underArticle 8 (1997) 24 EHRR 143.

Case 3 – Goodwin & I vs UK• Article 8 and 12 rights (+14)

• Two cases heard together

• Preceeded by

• Rees vs UK (1985)

• Cossey vs UK (1990)

• Sheffield & Horsham vs UK (1998)

Case 3 – Outcome• Won, unanimously

• Court accepted substantial evidence of discrimination resulting from inability to alter birth certificate and be certain of legal status

• Decision referred to proportionality

• Led to Gender Recognition Act 2004

• Not dependent on specific surgeries

Para 83. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals.

Para 90. In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable

Para 93. …the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.

Domestic Cases• A vs West Yorkshire Police

• A, D & G vs NW Lancs Health Authority

• Bellinger v Bellinger

For a full list and judgements see:http://www.pfc.org.uk/legal

Trans Rights in 2010• Change name

• Change documents

• Change birth certificate

• Marry in assigned gender

• Employment protection

• Goods, services, housing

• Rape / sexual offences

YES

YES

YES

YES

YES

YES

YES

Changing the law by judicial or legislative means doesn’t prevent discrimination. The most the law can do is to provide a remedy after discrimination has taken place, or to encourage change. REAL CHANGE requires social campaigning (and time)

But remember…