Sean William Delaney^*

Introduction

Recent debates on the coverage and scope of EU anti-discrimination law in relation to transgender people commonly articulate a concern that ‘trans’ people are, for the most part, challenged by existing laws rather than protected by them¹ . In 2010 the European Union Agency for Fundamental Rights (FRA) published a report concluding that ‘notwithstanding EU case law, a fragmented situation remains throughout the EU, as well as lack of clarity of applicable standards and definitions in at least 15 member states’² .

Some member states have adopted a definition of sex discrimination that has been extended to cover those who pursue gender reassignment, whereas in others it has been treated as discrimination on the basis of sexual orientation. In some instances, there is no protection afforded to trans individuals at all and they must seek to rely on generous interpretations of the general principle of equality.

In the landmark ruling in P v S and Cornwall County Council [1996]³ the ECJ decided that Council Directive 76/207/EEC (now Directive 2006/54/EC⁴ ), art 5(1) should be read so as to preclude the ‘dismissal of a transsexual for a reason related to gender reassignment’⁵ . It reasoned that to ‘tolerate such discrimination’⁶ would amount to a ‘failure to respect the dignity and freedom to which he or she is entitled’⁷ .

The introduction of the Directive 2006/54/EC, known as the ‘Gender Recast Directive’⁸ in 2006 represented a comprehensive consolidation of the gender equality provisions relating not only to employment and occupation, but also the associated provisions of ‘working conditions, including pay’⁹ and ‘occupational social security schemes’¹⁰ . For the first time, all these provisions were brought together in one legal document.

However, ECJ rulings in the cases of K.B v National Health Service Pensions Agency [2004]¹¹ and Sarah Margaret Richards v Secretary of State for Work and Pensions [2006]¹² have served to restrict the freedoms granted to transgender persons by the directive. Discrepancies persist for trans individuals with regards to accessing certain social rights in their acquired gender, calling into question the traditional comparator approach followed in P v S which champions less favorable treatment as the benchmark for non-discrimination.

In effect, by taking further into account the nature and purposes for which the gender equality directive was created, the ECJ has recognised the existence of an ‘inequality of treatment’¹³ in the access to a specific right, but the terms by which that right may be realised are left to the discretion of the individual member states.

Consequently, a divergence of approach between the member states results in a situation of social exclusion and legal uncertainty for many transgender people. This anxiety can be attributed in large part to the absence of clear provisions and the ambiguities surrounding the term ‘gender reassignment’, the scope of which has been ill-defined in the case law. Whether it relates to just the physical aspect of transitioning or extends beyond this to cover a wider range of ‘trans’ individuals, including those who have not pursued full gender reassignment, remains unclear.

This article will analyse the extent to which anti-discrimination law has addressed such concerns by calling into question the current effectiveness of the ‘Gender Recast Directive’¹⁴ . It will attempt to do this by first introducing the directive and what it sets out to achieve before scrutinising the emphasis placed on less favourable treatment and a comparator approach which values sameness over difference. Thereafter, this paper will provide a chronological analysis of the case law of the ECJ before assessing alternative proposals for reform, including reforming the terms used in the directive.

The EU legislative framework

Recital 3 of the preamble to the Gender Recast Directive states that the scope of the principle of equal treatment for men and women ‘also applies to discrimination arising from the gender reassignment of a person’¹⁵ . Significantly, this included for the first time within EU law an explicit prohibition of discrimination on the grounds of gender reassignment.

This prohibition treats a broad range of concerns associated with employment and occupation, as falling under the material scope of the directive. For instance, access to employment was expanded so as to include ‘the principle of equal opportunities’¹⁶ , incorporating such employment factors as promotion and dismissal, as well as more general working conditions, including the right to equal pay.

Coverage of the gender equality directive ranges from ‘extensive coverage’¹⁷ in some states to a ‘lack of clarity’¹⁸ and even ‘a complete absence of coverage’¹⁹ in others. There is no legal requirement for the EU directives to require a direct transposition of an explicit mention of ‘gender reassignment’ into the national legislation. This is in credence to the fact that ‘their role is to establish the purpose and to set the parameters of the main text of the Directive’²⁰ . Implementation of the directive has therefore resulted in a ‘patchy outcome’²¹ across the member states.

Unlike the European Court of Human Rights (ECtHR) the EU operates on the basis of a ‘closed list of discrimination grounds’²² provided for in the treaties. For instance, TFEU, art 19 enables the EU to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’²³ . However, the omission of either gender identity or gender reassignment within the treaty has meant that protection based on these sub-grounds has only been achievable through a broader interpretation of sex discrimination through the directive.

The reluctance of the EU to encroach upon the national sovereignty of the member states is considered by Skidmore to be an important part of the ‘interpretative gap between the Directive and national law’²⁴ . This gap allows national member states to interpret the directive purposively in order to integrate it into the existing legislative framework. However, the reliance on the rather ‘arbitrary ground of gender reassignment’²⁵ as a minimum requirement and the lack of sufficient enforcement procedures has meant that member states have simply been able to ignore their obligations under EU law.

EU Commissioner Vladimír Špidla, declared that ‘the Commission takes breaches of EC Law seriously’²⁶ and that accordingly the ‘deadline for transposition of Directive 2006/54/EC in the Member States was 15 August 2008’²⁷. The ECJ case of Mangold v Helm reinforces this position, asserting that national courts may set 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’²⁸.

It is important to bear in mind therefore that any rights created by the directive are not absolute and differences in treatment may be acceptable if they are ‘justified by a legitimate aim’ (Recital 16)²⁹ . This extends across a broad range of activities, however Recital 16 also highlights that any limitation should be ‘appropriate and necessary in accordance with the criteria derived from case law of the Court of Justice’³⁰ .

The ‘comparator’ approach

Discrimination on the basis of ‘gender identity’ can refer to unfair treatment deriving from traditional social and legal settings or received by an individual on the basis that they are a transgender person.³¹ The ECJ has tended to focus on the former through the provisions of direct discrimination and the emphasis it places on a comparator model and less favourable treatment.

Directive 2006/54/EC, art 2(2)(a) stipulates that direct discrimination occurs ‘where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation’³² . Wintemute has described direct sex discrimination as existing ‘whenever a person’s chromosomal sex is used directly or expressly to limit their choices or opportunities in life, or to determine which benefits they receive or which burdens are imposed on them’³³ . The opinion of AG Jacobs in Schnorbus v Land Hessen [2000] clarifies the position in asserting that discrimination is direct ‘where the difference in treatment is based on a criterion which is explicitly that of sex or is necessarily linked to a characteristic indissociable from sex’³⁴ .

It is important therefore to note from the outset that there is ‘no explicit prohibition of discrimination on the grounds of a person’s gender identity and gender expression’³⁵ . In the absence of explicit legislation, the ECJ has therefore been tasked with the rather onerous duty of relying on a ‘purposive reading of the secondary legislation on sex discrimination’³⁶ in order to extend protection to a wider range of trans individuals. Agius and Tobler have labelled this form of jurisprudential inquiry the ‘conceptual approach’³⁷ . This approach has attempted to broaden the reach of sex discrimination through interpretation of abstract concepts such as fundamental rights.

The difficulty that arises for the courts lies in the comparison exercise, applying the template of the ‘obvious case of a comparable man and woman receiving different treatment’³⁸ to that of the treatment of a post gender reassignment transsexual. According to Wintemute, there are two main modes of comparison that we can choose to engage with. Firstly, we might select ‘an ‘inter-sex’ comparison between the treatment of a person of one sex making a specific choice and the treatment of a person of the opposite chromosomal sex making the same choice’ [Emphasis added]³⁹. Alternatively, we might instead choose to engage in ‘an ‘intra-sex’ comparison between the treatment of a person of one sex making a specific choice and the treatment of a person of the same chromosomal sex who does not make that choice’ [emphasis added]⁴⁰ .

The former approach can essentially be seen as drawing a comparison between a MTF transsexual and a FTM transsexual. Whereas, the latter approach treats the transsexual as being of the former ‘sex’ in order to compare the treatment they receive with a member of that sex who does not pursue gender reassignment.

Analysis of the ECJ case law

P v S represented a ‘courageous decision’⁴¹ in so far as it became one of the first cases to explicitly preclude the ‘dismissal of a transsexual for a reason related to gender reassignment’⁴² . The applicant known as P, biologically born a male, wrote to her employer to inform them that she intended to transition to live as a woman. After having surgery and returning from sick leave she was dismissed and given three months notice.

The unfair dismissal was clearly identified as discrimination arising ‘from the gender reassignment of the person concerned’⁴³ . It was clear from the facts of the case that the employer’s sudden change in attitude towards the claimant P was not based on performance, but rather because she had pursued gender reassignment. Skidmore has remarked that ‘the vehemence of the Court’s condemnation of the discrimination suffered by P can be interpreted as revealing the naked prejudice in the employer’s decision to dismiss’⁴⁴ .

In reaching this landmark decision it was argued ‘both the court and the Advocate General recognised that the Equal Treatment Directive formed part of the Community’s objectives of harmonising living and working conditions while maintaining their improvement”⁴⁵ . In this sense, the court has adopted a pragmatic approach to what was essentially an ‘economic activity’⁴⁶ that the complainant was denied from participating in on the basis of having had gender reassignment.

It was held imperative that the scope of the directive was not confined ‘simply to discrimination based on the fact that a person is of one or other sex’⁴⁷ . In consideration of this the court took an expansive view of the directive so as to ensure its application was extended beyond the traditional analysis ‘between men and women’⁴⁸ in order to incorporate wider grounds associated with sex, such as gender reassignment.

A closer inspection of the judgment of the ECJ and the AG’s opinion, however, reveals a tension between the differing rationales on which this decision is based. Bell has argued that while the ‘Advocate General focused on a more purposive definition of sex’⁴⁹ , acknowledging the gendered aspects underlying this issue. The Court in contrast did not heed this advice, preferring instead ‘to follow a more conventional analysis, founded upon a comparator based concept of sexual discrimination’⁵⁰ .

On initial reflection, the court appears to undertake what was essentially a ‘male/male (“intra-sex”)’⁵¹ comparison. The comparison was drawn between the treatment of the claimant, as she was perceived to be before she disclosed her intention to undergo gender reassignment, with the treatment she received ‘once she was known to be a male-female transsexual’⁵² . To some extent, it could be said that she was able to act as her own comparator, comparing the treatment of her former self with that of her current self once she had pursued gender reassignment.

More significantly, in rejecting ‘an approach based on an Aristotelian notion of equality that likes should be treated alike’⁵³ the court’s judgment appears to reject an ‘inter-sex’ based comparison that may lead to unjust results. By this it is meant that an ‘inter-sex’ comparison between a MTF transsexual and FTM transsexual would be largely inadequate in that it might result in the so called equal misery or ‘bastard to everyone’⁵⁴ defence.

Both the UK and the European Commission advanced the argument that ‘the employer would also have dismissed P if P had previously been a woman and had undergone an operation to become a man’⁵⁵ . Avoiding a comparison based on this narrower approach prevents employers from dismissing a transsexual simply on the basis that they would treat a transsexual of the opposite sex equally badly. While this decision is progressive in the sense that it explicitly acknowledges the right of transsexuals not to be discriminated against, it fails to elaborate any further on this. If the EU is to pioneer a cohesive approach to gender equality it must go beyond simply outlawing discrimination and seek mechanisms by which to enforce it.

Much of the academic commentary felt there was at least an implicit attempt by the court to engage in an ‘inter-sex’ comparison. Campbell and Lardy commented that the comparison was actually drawn between ‘the treatment given to the transsexual claimant, P (a woman), and the treatment which men generally could expect to receive in similar circumstances’⁵⁶ . In this sense, although the claimant P was treated as a woman for the purposes of comparison, the court deliberately chose not to identify an individual comparator at all.

It would appear therefore that the court retained an understanding of the case based, aesthetically at least, on a comparator model. In practise, however, it departed from this strict reasoning by analogy. One reading of this is to suggest that it was able to because of the ‘sheer obviousness of the sex discrimination’⁵⁷ that took place. This is exemplified by the words of the AG that ‘one fact, however, is not just possible, but certain: P would not have been dismissed if she had remained a man’⁵⁸ . Further contemplation of this issue would suggest that it was able to do so in light of the ‘fundamental principles of equality and non-discrimination, rather than the fact of being male or female’⁵⁹ in itself.

Embedded within this decision was the fundamental notion that sex discrimination should not be contingent ‘on the ability of the claimant to demonstrate membership of a sexual category’⁶⁰ , nor should it require less favourable treatment to have taken place between the sexes who pursue similar courses of action. In a case concerning alleged sex discrimination, somewhat paradoxically, sex as a criterion was largely treated as immaterial. It was not the sex of the claimant in dispute, but rather her change of sex.

The AG offered a compelling account of how the case should be decided on the basis of this argument. In his opinion, to deny that the unfavourable treatment suffered by P was not based on sex would ‘be a quibbling formalistic interpretation and a betrayal of the true essence of that fundamental and inalienable value which is equality’⁶¹ .

What was noteworthy about the AG’s opinion was that he initially recognised that there existed ‘a range of characteristics, behaviours and roles shared by men and women, so that sex itself ought rather to be thought of as a continuum’⁶² . This went some way towards facilitating a discussion that transgender people might constitute a ‘third gender’, which should be recognised in law regardless of the complexities it poses to traditional understandings of sex and gender.

For Stychin, the flexibility of such an approach is desirable in that ‘even if the claimant is successful on the merits of the case, the question remains whether the strategy serves to ‘trouble’ legal discourse, or alternatively, is the subject made to fit law’s categories so that s/he ceases to be troubling?’⁶³ However, while the AG recognised the merits of ‘deeper consideration’⁶⁴ in relation to such issues, he denied endorsing any wide-ranging proposals.

Unsurprisingly the decision of the ECJ made no reference to these matters and was markedly more pragmatic and cautious in its approach. Nevertheless, by invoking arguments built around fundamental rights the ECJ appeared, at least initially, to endorse the importance of such principles in serving ‘legitimising and integrative functions’⁶⁵ .

Borrowing from the language of human rights discourse in the ECtHR and its recognition of the ‘existence of a factor (gender identity) that determines people’s well-being’⁶⁶ would arguably go some way towards implementing these principles.

The decision of the ECtHR in L v Lithuania [2007] represents a shift away from a focus on a person’s sex towards recognition of their individual identity. In this case there was no bar on the access to gender reassignment surgery, but the member state had not engaged in a thorough implementation of the directive so as to facilitate the development of such medical services.

The court held that this revealed a ‘limited legislative gap in gender-reassignment surgery, which leaves the applicant in a situation of distressing uncertainty’⁶⁷ . Significantly, while accepting that certain budgetary restraints might hinder the immediate development of this right, this was not an ample justification for denying what it explicitly referred to as ‘the rights of transsexuals’⁶⁸ . A reliance on generous interpretations of abstract fundamental principles is simply not enough; there needs to be provisions specifically covering all transgender persons rather than the terse and cryptic phrase ‘gender reassignment’.

In K.B⁶⁹ the ECJ considered a transsexual’s supposed right to access an employment related-partner benefit, namely a pension. This case was analysed from the perspective of the treatment of couples where ‘the identity of one partner has led to gender reassignment being intended, being already underway or having been undergone’⁷⁰ . This is in contrast to the ‘comparison’ made in P v S in which the focus was solely on the less favourable treatment of an individual claimant.

Remarkably, the court appeared initially to step outside its sphere of influence and rule on a matter of marriage/family law that it had no competency in relation to. With reference to the judgment of the ECtHR in Goodwin v UK [2002] that there is ‘no justification for barring the transsexual from enjoying the right to marry under any circumstances’,⁷¹ the ECJ appeared to rule on the basis of a transsexual’s right to marry. It maintained that there is ‘inequality of treatment which, although it does not directly undermine enjoyment of a right protected by community law, affects one of the conditions for the grant of that right’⁷² . However, the court qualified this statement somewhat by explaining that ‘it is for the national court to determine whether in a case such as that in the main proceedings a person in K.B’s situation can rely on Article 141 EC’⁷³ in order to challenge a ‘necessary precondition’⁷⁴ for the granting of such a right.

The AG summarised that it ‘is quite immaterial whether the inequality complained of consists of a dismissal or a refusal to pay a widower’s pension’⁷⁵ . The fact of the matter was that ‘the refusal of the pension at issue does not arise as a result of the gender reassignment of the person concerned’⁷⁶ , but rather the inability of the claimant to meet a necessary condition prescribed by national law. In other words, the reason that the claimant is being discriminated against is not because he is a transsexual, but rather because he is not married.

This led to the conclusion that ‘Article 141 EC in principle, precludes legislation’⁷⁷ that has the effect of preventing ‘a couple such as K.B. and R. from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other’ [Emphasis added]⁷⁸ . Consequently, the potential for an expansive vision of sex, as alluded to in P v S, appears to have come to a stalemate.

At the hearing in the Employment Appeal Tribunal, the court expressed the view that ‘the ratio of P v S did not require transsexuals to be accorded the full legal rights of their psychological sex, whether or not they had had surgery’⁷⁹ . This has had the effect of leaving transgender people in the undesirable situation of having achieved the right not to be discriminated against, but without the social rights and benefits by which they depend upon. It is wholly unsatisfactory to say a group of people are free of discrimination in one sphere, only to incapacitate them in another.

In Richards [2006]⁸⁰ ,the second pensions case considered by the ECJ, the courtposited the question as to whether, the refusal to pay a MTF transsexual ‘a retirement pension as from the age of 60’⁸¹ constituted ‘discrimination contrary to Article 4 of Directive 79’⁸² . In contrast to K.B, the court’s comparison was undertaken in relation to an individual claimant’s inability to have their rights recognised as their acquired gender.

The ECJ referred to the Equal Opportunities Commission case in noting that in regards to Directive 79/7/EEC⁸³ discrimination contrary to Article 4(1) does not fall under the exemption provided in Article 7 (1)(a) of the same directive. That is unless ‘it is necessary in order to achieve the objectives which the directive is intended to pursue by allowing member states to retain a different pensionable age for men and women’⁸⁴ . While the court acknowledged the justification on the part of the member state in maintaining a difference in the pension retirement age between men and women, it did not perceive it as having preference to the issue at stake in the main proceedings.

The inequality of treatment complained of related specifically to the impossibility of Ms Richards to gain recognition of her new gender in comparison to those women (of the same sex) whose gender is not the result of surgical intervention. From a traditional perspective of sex equality law, this makes it rather difficult to see why such cases should be seen as concerning sex equality⁸⁵ . The issue is to do with their perceived gender as a social construct, rather than whether they wish to live their life as male or female.

A few member states have actively legislated to reconcile the differences between the directive and national marriage law (UK and Spain). While other states such as Belgium and the Netherlands have enacted gender-neutral marriage laws as ‘a possible ‘solution’ to the problem of marriage for trans individuals’⁸⁶ . This inevitably equates to a rather piecemeal and legally strict approach in that protection of such rights is only extended under the directive to those who have undergone surgery or whose member state have enacted gender-neutral marriage laws.

Transgender persons represent a social group that is not easily defined. Some intend to undergo surgery to live their life as the opposite gender, while others may wish to only undergo partial surgery or only look aesthetically like the other gender. It is a diverse group that extends beyond simply ‘gender reassignment’ and therefore calls for a more accurate definition to be inserted into the directives to reflect this.

Impact and legacy of the decision of the ECJ

P v S was heralded as a landmark decision for transgender rights, according equal protection within employment to transsexual individuals through an expansive interpretation of the Equal Treatment Directive 76/207/EEC (now Directive 2006/54/EC⁸⁷ ). This case appeared to highlight the capacity for issues concerning fundamental rights to be played out in the ECJ through considerations of economic wellbeing. Barnard commented that there was a real belief that in P v S the court was ‘taking a ‘tentative step’ towards recognizing that the Union is not only about securing market freedoms but also about achieving social justice’⁸⁸ .

To this effect, the ECJ can be seen as engaging in a purposive interpretation that extends protection beyond the narrow parameters of ‘sex’ and that of formal equality so as to encompass transsexuals and those who fall outside the gender binary model. However, there still appears to be problems for transgender people in terms of accessing social rights and benefits as their acquired gender. This was demonstrated in the later two cases of K.B [2004] and Richards [2006], concerning access to pensions as an acquired gender where the discretion to decide on such issues was ultimately reserved for the national states.

It would appear therefore that the success of P v S depends on the political will of the individual member states to implement measures that reflect its rationale. It should be noted that member states ‘have no obligation to transpose P v S into legal texts’⁸⁹ but only to apply its principle.

This is illustrated well by the recent Irish Equality Tribunal case of Louise Hannon⁹⁰ in which the decision to award the claimant €35,000 was heralded as ‘ground breaking’⁹¹ yet, the reasoning on which this decision was based is flawed in comparison to the standards set by the EU in P v S. By this it is meant that repeat references to gender identity disorder in this case appeared to frame her claim around gender and disability, a somewhat narrower construction of the equal treatment principle enshrined in P v S.

The claimant was neither disabled nor did her transition to live as a woman render her unable to perform the tasks that she was employed to do. If this were the case it might be more accurate to describe this as discrimination on the basis of sex, as it would have been due to her acquired sex that she was dismissed. As it were, she was dismissed not because she couldn’t carry out her job, but because she had chosen to live as a woman full time.

If national courts are simply left to their own devices without clear guiding principles this is likely to result in patchy and perhaps undesirable outcomes. This is not to say that national courts are not knowledgeable enough, but rather they are devoid of clear guidance. This raises obvious difficulties in terms of implementing such protection into the national laws, which needs to be inserted by way of either a treaty revision or changes to the text of the directives.

Proposals for reform

In their extensive thematic report, Agius and Tobler have identified three main proposals for the improvement of the current situation throughout the EU⁹² :

• a formal revision of EU law in order to include discrimination on grounds of gender identity and gender expression as a ground of its own
• making good use of the flexibility provided by the existing EU law on the level of national law
• a broader interpretation of the already existing EU law

Explicitly recognising discrimination on the grounds of gender identity and gender expression through a formal Treaty revision

It has already been acknowledged in respect of the ECrHR’s recognition of the ‘existence of a factor (gender identity) that determines people’s well-being’⁹³ that a similar approach in the ECJ might go some way towards ensuring ‘gender identity’ is seen as a ‘form of discrimination in its own right’⁹⁴ . In fact, the language in P v S already appears to align itself with such an approach in declaring that ‘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 [Emphasis added]⁹⁵ .

Tridimas has remarked that ‘in effect, the Court applied a general principle of unwritten human rights law, according to which discrimination on arbitrary criteria is prohibited’⁹⁶ . This is quite remarkable in that what the court is effectively doing is circumventing the narrowness of the provisions so as to give effect to more general principles of Community law. The effectiveness of such an approach might therefore be bolstered by an express treaty revision leading to the creation of a separate discrimination ground.

In light of this, the EU Commission could take it upon itself to give ‘legislative advocacy’⁹⁷ to a language of rights such as that developing in the ECtHR. Given the ‘cross-fertilization of the European Courts’,⁹⁸ it would not be implausible that the ECJ might then align its decisions accordingly, expanding the scope of the directive beyond just those who seek gender reassignment.

Treaty revisions are important because the EU must be capable of adapting to the challenges that arise in the social and political life of the union. Therefore, introducing a ‘gender identity’ discrimination ground can be seen as desirable in providing transparency and clarity to an area in which there is limited understanding. Such a revision would help eradicate the ambiguities surrounding the reliance on a comparator model, combating what the AG in P v S called ‘a quibbling formalistic interpretation’⁹⁹ of the ‘inalienable value which is equality’¹⁰⁰ . Moreover, having to carve an interpretation based quintessentially on gender from the sex criterion is not only burdensome for the courts, but also as P v S has proven in treating sex as immaterial in such cases, wholly illogical.

Ratification of the Treaty of Lisbon in 2007 resulted in the creation of two different mechanisms for formally revising the EU treaties: the ordinary revision procedure and the simplified revision procedure (Art. 48(1) TEU)¹⁰¹ . However, as the adoption of an autonomous discrimination ground would bestow upon the EU a newly found ‘competence to adopt secondary legislation’¹⁰² in the form of directives, the only appropriate means of achieving this would be through the ordinary revision procedure. This is because it is only in relation to the ordinary procedure that Art. 48(2) allows for proposals ‘to increase or reduce the competences conferred on the Union in the Treaties’¹⁰³ . However, the political willingness of the member states to vote unanimously to table such an amendment remains questionable.

Given that, presently the trans community is statistically insignificant with estimates on the precise population figure ranging from ‘1 in 11,000 to as many as 1 in 20 in the male population’¹⁰⁴, it is difficult to imagine this justifying a formal treaty revision. This has prompted Agius and Tobler to point out that an explicit treaty revision can, for the time being, be ‘no more than a long-term strategy’¹⁰⁵ .

Wider interpretation of the existing law strengthened by a modification of current EU secondary legislation

With a treaty revision appearing a relatively unrealistic possibility, the alternative proposal for reform is a wider or ‘broader interpretation of the term “discrimination on the grounds of sex” than is reflected in the ECJ case law’¹⁰⁶ . P v S [1996] outlined in clear and unequivocal terms that ‘where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment’¹⁰⁷ this will amount to direct sex discrimination. Such an approach was later given further relevance in the context of social security schemes in the subsequent cases of K.B [2004] and Richards [2006]. However, the extent to which ‘gender reassignment’ can provide an adequate basis for protection to such a diverse group of people is disputable.

It is suggested therefore that greater emphasis should be placed on the ‘breaking-down of the traditional sex roles’¹⁰⁸ as was the position adopted by the AG in Grant, rather than the physical aspect of changing sex itself. Bell has characterised such an approach as capable of ‘instigating significant social reforms’¹⁰⁹ . It has been said by Barnard that traditional ‘discrimination suffered by women is not due to their physical characteristics but rather to their role, the image society has of them’¹¹⁰ . It becomes increasingly difficult therefore to understand why trans discrimination should be treated any differently. This discrimination is not based on any physical aspect of transitioning, in other words gender reassignment, but rather the gender identity of the persons concerned.

The development of other existing grounds in which the EU forbids discrimination such as pregnancy demonstrates how the EU could elevate the importance of gender identity. In Dekker the court observed that for an employer to refuse ‘a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences of absence due to pregnancy’¹¹¹ amounts to direct sex discrimination. It was held to be immaterial that there was ‘no male candidate for the job’¹¹² ; pregnancy is a characteristic unique to women and should not be assimilated with illness. This position has since been affirmed in the Pregnant Workers Directive 92/85¹¹³ and the Parental Leave Directive 2010/18¹¹⁴ .

Despite pregnant women comprising a significantly larger social group, it is not inconceivable that trans-based discrimination could be approached in a similar way. Speaking to the European Parliament, SilvanAgius has recommended the following modifications to the existing ‘Goods and Services Directive’¹¹⁵ (Changes are marked in italics):

Dir 2004/113/EC, art 4 states:
1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that
(a) there shall be no direct discrimination based on sex including less favourable treatment of women for reasons of pregnancy and maternity; and less favourable treatment of trans people for reasons associated with their gender identity and gender expression [Emphasis added]¹¹⁶

A framework of this kind would be highly desirable in providing flexibility for the national courts to interpret the ground of ‘gender identity’ widely so as to go beyond the minimum standards set by the EU. Recent cases related to pregnancy have highlighted the potential for the ‘material scope of the national legislation’¹¹⁷ to be enhanced by a broader understanding of the secondary legislation.

In Mayr v Flockner the ECJ went as far as to cover women who were not pregnant but who were in an ‘advanced stage of in vitro fertilisation treatment’¹¹⁸ under the equal treatment directive (then Dir 76/207/EEC¹¹⁹ ). Following Dekker, the court was willing to find discrimination because of a unique circumstance that only affected woman, namely IVF treatment. As the AG expressed in P v S, the law ‘must be capable of regulating new situations brought to light by social change and advances in science’¹²⁰ . The viability of express provisions relating to gender identity under the directives could therefore give rise to a newly found willingness on the part of the ECJ to recognise the unique status of transgender people.

Conclusion

The current level of protection granted to transgender people under the anti-discrimination law provisions entailed in the gender equality directives is wholly unsatisfactory. At present, ECJ case law on trans issues deals exclusively with the discriminatory consequences of gender reassignment, which is only one aspect of the broad spectrum of trans discrimination.¹²¹ Whereas, a focus on ‘gender identity’ accounts more adequately for the reasons behind the discrimination itself, rather than simply prohibiting discrimination based on a particular course of action.

There is a need for the ECJ to interpret the ground of sex widely so as to incorporate within it the grounds of ‘gender identity and gender expression’. This could be achieved by the European Commission proposing specific legislation or amendments to the existing secondary legislation in the form of the directives. Arguably, this would go some way towards incorporating within its protection a wider range of people than just those who pursue gender reassignment. Additionally, there is also the need for cases to be brought forth on this basis to the ECJ to extend the protection to other important aspects of transgender people’s lives, such as access to goods and services.

Emerging references to concepts such as fundamental rights highlights the possibility for shaping the jurisprudence of the ECJ so as to interpret the grounds of gender identity widely. In fact in P v S the AG had explicitly referred to ‘a range of characteristics, behaviour and roles shared by men and women, so that sex itself ought rather to be thought of as a continuum’¹²² . However, hopes of a more expansive understanding of gender identity were squashed when neither he nor the court endorsed this opinion. One possible explanation for this, as Gedalof outlines is that ‘the liberal notion of equality that underpins contemporary policy is premised on valuing sameness over difference’¹²³ . Elevating gender identity to the same level of other sub grounds such as pregnancy, and thereby departing from the rigid ‘sameness’ requirements of the comparator model privileged by EU anti-discrimination law would be of major benefit to this cause.

Bibliography

Cited Works

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Bell M, ‘Shifting Conceptions of Sexual Discrimination at the Court of Justice: from P v S to Grant v SWT’ European Law Journal, Vol 5, No.1 (1999)

Campbell A & Lardy H, Discrimination against transsexuals in employment (Case Comment) European Law Review, 21(5) (1996)

Ellis E & Watson P, EU Anti-Discrimination Law 2nd edition (OUP, Oxford 2012)

Fredman S, Discrimination Law 2nd edition (OUP, Oxford 2011)

GedalofI, ‘Sameness and difference in Government Equality talk’, Ethnic and Racial Studies, Vol 36, Issue 1 (2013)

Hepple B, Equality: The New Legal Framework (Hart Publishing, Oxford 2011)

Pallaro P, Il divietodidiscriminazionefondatesulsesso, fratranssessualismo e libert. diorientamentosessuale, DirittoComunitario e degliscambiinternazionali (1998)

Shaw J, ‘Can transsexuals suffer sex discrimination?’ Journal of Social Welfare and Family Law, Vol 19, Issue 1 (1997)

Skidmore P, ‘Sex, Gender and Comparators in Employment discrimination’, Industrial Law Journal, Vol 26, Issue 1 (1997)

Stychin C, ‘Troubling Genders: A comment on P. v. S and Cornwall County Council’ Takis

Tridimas, The General Principles of EU Law (Oxford University Press, Oxford 1997)

Wintemute R, ‘Recognising New Kinds of Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes’, Modern Law Review, Vol 60, Issue 3 (1997)

European Treaties

Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/56

Consolidated Version of the Treaty on European Union [2012] OJ C 326/41

European Secondary legislation

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L 39

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1978] OJ L 6

Council Directive 95/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC, [1992] OJ L 348/1

Council Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] O J L 204

Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUINESSEUROPE, UEAPME, CEEP and ETUC

Case law of the European Court of Justice

Case C-177/88 Elisabeth Johanna Pacifica Dekker v StichtingVormingscentrumvoorJongVolwassenen (VJV-Centrum) Plus [1990] ECR- I-03941

Case C-79/99 Julia Schnorbus v Land Hessen [2000] ECR I-10997

Case C-117/01 K.B. v National Health Service Pensions Agency and Secretary of State for Health [2004] ECR 1-541

Case C-249/96 Lisa Jacqueline Grant v South-West Trains Ltd [1997] ECR- I-00621

Case C-13/95 P v S and Cornwall County Council [1996] ECR- 1-02143

Case C-506/06 Sabine Mayr v Bäckerei and Konditorei Gerhard Flöckner OHG [2008] I-01017

Case C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions [2006] I-03585

Case C-9/91 The Queen v Secretary of State for Social Security, ex parte the Equal Opportunities Commission [1992] I-04297

Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR-1-9981

Case law of the European Court of Human Rights

Christine Goodwin v The United Kingdom 28957/95 [2002] ECHR 588

L v Lithuania 27527/03 [2007] ECHR

National Case Law

X v NHS Trust Pensions Agency [1999] EAT/1211/98

Louise Hannon v First Direct Logistics Limited, The Equality Tribunal Decision DEC-E2011-066, 29.03.2011

CommissieGelijkeBehandeling [Equal Treatment Commission], Oordeel 2007-201 (travestie), 15.11.2007

Reports/Group Studies

Agius S &Tobler C, ‘Trans and Intersex people – Discrimination on the grounds of sex, gender identity and gender expression’ European network of Legal Experts in the non-discrimination field. Luxembourg :Office for Official Publications of the European Union, 2012

Burri S &Prechal S, The Transposition of Recast Directive 2006/54/EC European Network of Legal Experts in the field of Gender Equality,European Commission (2009)

Commissioner for Human Rights, Council of Europe ,Issue paper: Human rights and gender identity, (2009)

European Union Agency for Fundamental Rights (FRA), ‘Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity’ Comparative Legal Analysis, Luxembourg: Publications of the European Union, 2010 update

European Union Agency for Fundamental Rights (FRA), Homophobia and discrimination on grounds of sexual orientation and gender identity in the EU Member States: Part II – The social situation, Luxembourg: Publications office of the European Union, 2009

Fabeni S &Agius S, ‘Transgender People and the Gender Recast Directive: Implementation Guidelines’. Brussels: ILGA-Europe (2009)

Joint Contribution by ILGA-Europe and Transgender Europe towards the European Commission’s monitoring of the implementation of the Gender Goods and Services Directive (Dir 2004/113/EC) and the Gender ‘Recast’ Directive (Dir 2006/54/EC) in the EU Member States, June 2011

Kohler R, ‘Trans and Intersex People- Challenges for EU Law, European Parliament, 26th September 2012. Transgender Europe.

Whittle S, Turner L, Combs R & Rhodes S, ‘Transgender Eurostudy: Legal survey and focus on the Transgender experience of Healthcare, Brussels: ILGA-Europe, April 2008

Internet resources

2606th meeting of the Council of the European Union (Employment, Social Policy, Health and Consumers Affairs) held in Luxembourg on 4 October 2004, Draft minutes, Doc. No. 13369/04 of 27 October 2004

Agius S, ‘What can the EU do for Trans Equality?’ (Trans) Gender Equality Conference, European Parliament, 1st September 2010, ILGA Europe

Equality Authority welcomes ‘ground breaking’ decision awarding 35,000 Euros to a Transsexual Worker – Press Release 18th April 2011 http://www.equality.ie/en/Press-Office/Equality%20Authority%20Welcomes%20'ground%20breaking'%20decision%20awarding%2035,000%20euros%20to%20a%20Transsexual%20Worker.html Accessed 15 April 2015

P-0076/09 Parliamentary questions- Answers given by MrŠpidla on behalf of the Commission, 3February 2009, http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2009-0076&language=EN Last Accessed 24 April 2015