C-13/94

What is new, and certainly no small matter, is the fact that a transsexual is seeking to rely on the directive. As a result, the questions Next, Article 2(1) of the directive states that referred by the Truro Industrial Tribunal 'the principle of equal treatment shall mean direct the Court's attention to transsexuality that there shall be no discrimination whatso­ from the point of view of the prohibition of ever on grounds of sex either directly or sex discrimination: can a transsexual, if he or indirectly by reference in particular to mari­ she is dismissed because he or she is a trans­ tal or family status'. The application of that sexual, in particular when he or she under­ principle relates in particular to 'the condi­ goes gender reassignment, successfully rely tions, including selection criteria, for access on the directive? to all jobs or posts' (Article 3(1)) and to 'working conditions, including the condi­ tions governing dismissal' (Article 5(1)).

Relevant legislation, the facts and the ques- tions referred for a preliminary ruling

2. According to Article 1(1), the purpose of 3. The national legislation relevant to this the directive is 'to put into effect in the case is the Sex Discrimination Act Member States the principle of equal treat­ 1975 which defines — and prohibits — as ment for men and women as regards access direct sex discrimination, treating a woman less favourably than a man on the ground of her sex (Section 1(a)). In addition, it provides * Original language: Italian. that the provisions relating to sex discrimi­ 1 — OJ 1976 L 39, p. 40. nation against women are to be read as

There is however no specific provision relat­ ing to the state of transsexuals, not even after they have undergone a gender reassignment 2 operation. Contrary to what is provided in some national legal systems, in the United Kingdom every person retains the male or 5. In April 1991 P. was taken on as a man­ female sex which he or she had at birth: it is ager at an educational establishment operated therefore impossible to have the original sex at the material time by Cornwall County Council ('the Council'), the competent administrative authority for the area. A year 2 — This would be a suitable moment at which to make it clear later, P. told S., the Principal and Chief Exec­ that in the United Kingdom no legal formality is required for a surgical operation to change sex and all the costs are utive of that establishment, that she intended borne by the National Health Service. I would add that to undergo a sex-change operation. At first under English law any person may change his or her name and use the new one without any restriction or formality, S. appeared supportive and tolerant, and with the result that a transsexual has no difficulty in chang- ing his or her name and using the new one on documents reassured her about her position within the such as his or her driving licence, passport, vehicle log book establishment, but later his attitude changed. and social security and tax documents. For a complete pic- ture of the position and rights of transsexuals in the United According to the national court's reconstruc­ Kingdom, see Bradley: Transsexualisme —L'Idéologie, les principes juridiques et la culture politique', in Transsexual- tion of the facts, S.'s change in attitude was isme, médiane et droit, Actes du XXIII Colloque de droit essentially due to the opposition of the européen, Vrije Universiteit Amsterdam, 14-16 April 1995, p. 63 et seq. board of governors, who at one time put

7. The Industrial Tribunal considers that English law provides no helpful answer in 3 the circumstances and in particular that no discrimination against P. can be identified on the basis of the Sex Discrimination Act. The Tribunal is however of the opinion that the Community directive on equal treatment for 6. P. underwent the final gender- men and women may allow a broader inter­ reassignment operation on 23 December pretation that would cover discrimination 1992, that is to say, before her dismissal took effect but after she was given notice on 15 September 1992 of the termination of her employment. On 13 March 1993 P. brought 3 — In particular, the Tribunal notes that the termination of employment cannot be assessed from the point of view of an action before the Truro Industrial Tribu­ unfair dismissal, since for that purpose in the United King- nal, claiming that she had suffered discrimi­ dom a person must have been employed for at least two years. At the time of her dismissal P. had worked for the nation on grounds of sex. Both S. and the establishment concerned for only 20 months.

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against transsexuals as well, inasmuch as it together with such a profound conviction of refers to discrimination 'on grounds of sex'. belonging to the other sex that the transsex­ It is from exactly that point of view that it ual person is prompted to ask for the corre­ 4 asks the Court of Justice: sponding bodily "correction" to be made'.

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6 — According to figures supplied by the applicant, in Europe 1 in 30 000 males and 1 in 100 000 females seek to change sex by means of surgery. 8 — On this point, it is worth repeating that in the United King- 7 — This is the case, for example, of the Council of Europe's Par- dom, where it is still not possible to have the attribution of liamentary Assembly, whose proceedings culminated in the sex altered in the register of births, not only is 'transsexual' adoption of the abovementioned Recommendation 1117 on surgery permitted without any legal formality, it is moreover the condition of transsexuals. wholly paid for by the National Health Service.

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As far as Member States of the Community the problem is, by contrast, resolved case by are concerned, this is so in the case of Swe­ case by the courts, or even, much more 9 10 15 den, the Federal Republic of Germany, simply, at the administrative level. 12 Italy 11 and the Netherlands. The laws concerned authorize transsexuals to correct their birth certificates so as to include a ref­ erence to their new sexual identity, with the result that they have the right to marry, adopt children and enjoy pension rights according with their new sexual identity. 11. Transsexuality has furthermore been tackled by the Commission and the Euro­ pean Court of Human Rights from the two­ fold angle of violation of the right to respect for private life (Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHRC)) and of the right to contract valid marriages ( EHRC , Article 12).

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12. The approach of the European Court of had changed and science had progressed and Human Rights, when called upon to rule on increasing importance was attached to the an alleged violation by the United Kingdom problem of transsexualism. of Articles 8 and 12 of the EHRC , was dif­ ferent. In the Rees case, it held that it must 'be left to the respondent State to determine to what extent it can meet the remaining demands of transsexuals. However, the Court is conscious of the seriousness of the problems affecting those persons and the dis­ tress they suffer. The convention has always to be interpreted and applied in the light of current circumstances. (...) The need for appropriate legal measures should therefore be kept under review having regard particu­ 13. It is clear from this survey that at present larly to scientific and societal develop­ 'transsexual' surgery is regarded as legal, 17 ments'. The same solution was later even in those countries which still do not 18 adopted in the Cossey case. allow a corresponding change of civil status. This fact alone means that the law, as a result of scientific and social progress which has taken place in this area, is paying more and more attention to transsexuality, by regulat­ ing those aspects which are liable to have sig­ nificant repercussions on relations in society. As we have seen, this is borne out by the fact that in most national legal systems it is per­ missible to change civil status, either by vir­ tue of specific laws or because of judicial In the subsequent case of B. v France, by involvement on a case-by-case basis. contrast, the Court in Strasbourg found against France, stating that the fact that the applicant, who had undergone surgery in 1972 to become a woman also from the sex­ ual point of view, could not adopt a feminine name or change her civil status, constituted a 19 violation of Article 8(1) of the EHRC . In reaching that conclusion — and distinguish­ 20 ing B. v France from Rees and Cossey — the European Court explained that attitudes

16. While it is quite true that the directive The national court starts from the premiss prohibits any discrimination whatsoever on that the directive, in particular Article 3(1) in grounds of sex, it is equally indisputable that so far as it prescribes that 'there shall be no the wording of the principle of equal treat­ discrimination whatsoever on grounds of ment which it lays down refers to the tradi­ 21 sex', does not mean, or at least does not tional man/woman dichotomy. necessarily mean, that discrimination can exist only as between a male and a female, but may be interpreted as covering discrimi­ nation against transsexuals as well.

In order to ascertain whether the directive can, as the Industrial Tribunal suggests, be so interpreted as to cover discrimination against transsexuals too, it must, in any event, be 15. First of all, I would observe that the pro­ determined in the first place whether the visions relevant to this case are rather Article unfavourable treatment of transsexuals con­ 2(1), which lays down in general terms the stitutes discrimination on grounds of sex. It prohibition of discrimination on grounds of will then be necessary to decide whether it is sex, and Article 5(1) of the directive, which only discrimination between men and women which is covered by the expression 'discrimination on grounds of sex' or, more generally, all unfavourable treatment con­ 21 — In addition to Article 3(1), Article 2(1) also provides in gen- eral terms to that effect. nected with sex.

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it is, requires a redefinition of sex which merits deeper consideration in more appro­ priate circles; consequently, this is not the path that I propose that the Court should 22 — I refer first to the judgment in White v British Sugar Cor- poration [1977] IRLR 121, in which an English industrial follow. I fully realize that from time imme­ tribunal held that the Sex Discrimination Act did not apply to the case of the dismissal of a female transsexual who had morial a person's sex has merely been ascer­ not undergone any sex-change surgery but who had held herself out to be a man when she obtained the job. There tained, without need of the law to define it. are many judgments of United States courts on the issue. The law dislikes ambiguities and it is cer­ Nearly all held the dismissal of transsexuals to be lawful, on the ground that no discrimination on grounds of sex could tainly simpler to think in terms of Adam and be identified (see, for example, Grossman v Bernards Town- ship Board of Education, 11 FEP Cases 1196, 1975; Kirk- Eve. patrick v Seligman and Latz, 636 F 2d 1047, 1981; Sommers v Budget Marketing, 667 F 2d 748, 1982; also Ulane v East- em Airlines, 35 FEP Cases 1348, 1984). Holloway v Arthur Anderson & Co., 566 F 2d 659, 1977, deserves a separate mention; that was a case exactly like this one, in which it was held to be lawful to dismiss a transsexual for starting treatment to become a woman. 23 — To that effect see the judgment at first instance in Ulane v Eastern Airlines, 35 FEP Cases 1332, 1984, in which the court held that dismissal of an employee on account of her transsexual state was equivalent to dismissal on grounds of sex. Another notable exception may be found in Richards v United States Tennis Association, 93 misc. 2d 713, 400 N . Y. Having said that, I regard as obsolete the S. 2d 267, 1977, relating to a tennis player who, following idea that the law should take into consider­ an operation to become (also) physically a woman, sought to take part in women's tournaments. Despite the opposi- ation, and protect, a woman who has suf­ tion of the tennis association, which maintained that Rich- ards, by retaining her male muscular structure, would be at fered discrimination in comparison with a an advantage, the Supreme Court of the State of New York permitted her to take part in the 1977 US Women's Open man, or vice versa, but denies that protection (to complete the picture, I would observe that Richards was to those who are also discriminated against, beaten in the first round by Wade 6-1, 6-4).

So how can it be claimed that discrimination on grounds of sex was not involved? How can it be denied that the cause of discrimi­ nation was precisely, and solely, sex? To my mind, where unfavourable treatment of a transsexual is related to (or rather is caused by) a change of sex, there is discrimination by reason of sex or on grounds of sex, if that is preferred. In the present case, what is required is at least a rigorous application of the principle of equality so that, therefore, any connota­ tions relating to sex and/or sexual identity cannot be in any way relevant. Moreover, in trying to justify their relevance, it would be very hard to argue, and in any event it has 19. On this subject I cannot do other than not been claimed, that the abilities and role recall that the prohibition of discrimination of the person in question were adversely on grounds of sex is an aspect of the princi­ affected by her change of sex. ple of equality, a principle which requires no account to be taken of discriminatory fac­ tors, principally sex, race, language and reli­ gion. What matters is that, in like situations, individuals should be treated alike.

20. I must add that, for the purposes of this case, sex is important as a convention, a Consequently, the principle of equality pro­ hibits unequal treatment of individuals based on certain distinguishing factors, and these 24 — Judgment in Case C-450/93 KaUnke [1995] ECR 1-3051.

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In this regard, a judgment of the German Constitutional Court is of some interest; the court recognized — in the absence of rele­ vant legislation — transsexuals' right to Such a situation is still less acceptable when change their civil status. The judgment the social change and scientific advances stated: 'Clearly it is in the interests of legal made in this area in recent years are taken certainty that the legislature should regulate into consideration. Whilst it is true, as I have questions concerning personal legal status already said, that transsexuals are in fact not connected to a change of sex and their very significant in statistical terms, it is effects. But until such legislation is adopted, equally true that for that very reason it is the task of the courts is none other than that vital that they should have at least a mini­ which arises from the principle of equality mum of protection. On this view, to main­ between men and women before the entry tain that the unfavourable treatment suffered into force of a law putting them on an equal by P. was not on grounds of sex because it 25 footing.' 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 funda­ mental and inalienable value which is equal­ ity.

22. First, transsexuals certainly do not con­ stitute a third sex, so it should be considered as a matter of principle that they are covered by the directive, having regard also to the

Secondly, I note that the directive is nothing if not an expression of a general principle It should, moreover, be borne in mind that and a fundamental right. Here I would point the statement of reasons for the directive out that respect for fundamental rights is one expressly states that 'equal treatment for of the general principles of Community law, male and female workers constitutes one of the observance of which the Court has a the objectives of the Community, in so far as duty to ensure; and that 'there can be no the harmonization of living and working doubt that the elimination of discrimination conditions while maintaining their improve- based on sex forms part of those fundamental ment are inter alia to be furthered'. 28 The 27 rights'. directive is thus essentially intended, with a view to attaining the economic goals pre­ scribed by the Treaty while satisfying criteria of social justice, to ensure equal treatment as between workers. From this point of view, it seems to me only too obvious that all work­ ers, thus including those who have changed sex as a result of surgery, are entitled to 23. When the problem is expressed in those enjoy the protection conferred by the direc­ terms, it seems to me only too clear that the tive; and this, I would repeat, is so whenever directive, which dates from 1976, took sex is a discriminatory factor. account of what may be defined as 'normal' reality at the time of its adoption. It is quite natural that it should not have expressly taken into account a question and a reality that were only just beginning to be 'discov­ ered' at that time. However, as the expres­ sion of a more general principle, on the basis of which sex should be irrelevant to the The European Parliament expressed itself to the same effect in a resolution on discrimi­ nation against transsexuals of 9 October 1989 in which, inter alia, it 'calls on the 26 — See, in particular, paragraphs 10 to 13. Commission and the Council to make it 27 — Case 149/77 Defrenne II [1978] ECR 1365, paragraph 27, emphasis added. See also more recently Case T-45/90 Spey- clear that Community directives governing brouck v Parliament [1992] ECR II-33, in which the Court of First Instance reaffirmed precisely that: 'the principle of the equality of men and women at the work­ equal treatment for men and women in matters of employ- place also outlaw discrimination against ment and, at the same time, the principle of the prohibition of any direct or indirect discrimination on grounds of sex form part of the fundamental rights the observance of which the Court of Justice and the Court of First Instance must ensure pursuant to Article 164 of the EEC Treaty' (paragraph 47). 28 — Third recital in the preamble; emphasis added.

24. Finally, I am well aware that I am asking the Court to make a 'courageous' decision. I am asking it to do so, however, in the pro­ found conviction that what is at stake is a universal fundamental value, indelibly etched in modern legal traditions and in the consti­ tutions of the more advanced countries: the irrelevance of a person's sex with regard to the rules regulating relations in society. Who­ soever believes in that value cannot accept the idea that a law should permit a person to be dismissed because she is a woman, or Finally, I would point out in the words of because he is a man, or because he or she Advocate General Trabucchi in an Opinion changes from one of the two sexes (whichev­ now 20 years old, that 'If we want Commu­ er it may be) to the other by means of an nity law to be more than a mere mechanical operation which — according to current system of economics and to constitute medical knowledge — is the only remedy instead a system commensurate with the capable of bringing body and mind into har­ society which it has to govern, if we wish it mony. Any other solution would sound like to be a legal system corresponding to the a moral condemnation — a condemnation, concept of social justice and European inte­ moreover, out of step with the times — of gration, not only of the economy but of the transsexuality, precisely when scientific people, we cannot disappoint the [national] advances and social change in this area are court's expectations, which are more than opening a perspective on the problem which 30 those of legal form'. certainly transcends the moral one.