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P v S and Cornwall County Council

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P v S
European Court of Justice
Submitted 13 January 1994
Decided 30 April 1996
Full case nameP v S and Cornwall County Council
CaseC-13/94 ECR I-2143
CelexID61994CJ0013
ChamberFull Court
Court composition
Judge-Rapporteur
Paul Joan George Kapteyn
President
Gil Carlos Rodríguez Iglesias
Advocate General
Giuseppe Tesauro
Instruments cited
Directive 76/207/EEC (Equal Treatment Directive)

P v S and Cornwall County Councilwas a landmark case of theEuropean Court of Justice(ECJ) which extended the scope ofsex equalitytodiscriminationagainsttranssexuals.[1][2]

The case concerned a United Kingdom (UK)trans woman,referred to as P in court proceedings, who was dismissed from her post after informing her employers that she was undergoing gender reassignment. She took her employers to anEmployment Tribunal.The Tribunal agreed that she had been dismissed because of hergender reassignment,but was unable to rule that she had been discriminated against because at that time theSex Discrimination Act(SDA) offered little protection to transsexual people. If P had been atrans man,he would have been treated in the same way and so there were no grounds in the SDA to rule that P had been discriminated against.[3]However, the UK was part of theEuropean Communityand thus obliged to implement theEqual Treatment Directive.The Tribunal felt the scope of the Directive was wider than that of the SDA and accordingly asked the ECJ for apreliminary ruling.Effectively, the Tribunal asked the Court to rule whether the Directive precluded dismissal of a transsexual for a reason related to his or her gender reassignment.[4]

The Court, assisted by an influential opinion fromAdvocate GeneralTesauro,ruled that the Directive was an expression of a fundamental principle of equality and thus that the Directive did indeed preclude dismissal for a reason related to gender reassignment.[5]The Tribunal was able to rule in P's favour and P received compensation from her employers.[6]

It was the first piece ofcase law,anywhere in the world, which prevents discrimination in employment or vocational education because someone is transsexual.[7]The scope of the ruling is considered as applying to transsexuals "intending to undergo, undergoing or [who] have undergone gender reassignment".[8]However, the Court left open the question of employment where the natal sex or its continuity was a constitutive element in the employee's job.[9]In UK law this is reflected in theEquality Act 2010where transsexuals can be barred from gender-specific services if that is "a proportionate means of achieving a legitimate aim".[10]

Facts and Procedure

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P was amale to female transgender womanwho worked as a senior manager in an educational establishment maintained byCornwall County Council.She started her employment as a man on 1 April 1991. In April 1992, she informed S, Chief Executive of the establishment, that she intended to undergogender reassignment.She explained to S that she was to undertake a"life test",an initial period of a year living as a woman. That summer P took sick leave for initial surgery. At the beginning of September 1992, she was given three months notice of dismissal. She was not allowed to return to work as a woman. Final surgery took place before the notice of dismissal had expired. On 3 March 1993, P brought an action beforeTruroEmployment Tribunal,complaining that she had been discriminated against on the grounds of sex. Both S and Cornwall County Council maintained the termination was due toredundancy.[7][9][11]

The Tribunal determined that although there was redundancy within P's establishment, the sole and exclusive reason for her dismissal was her gender reassignment. The Tribunal found this situation was not covered by theSex Discrimination Act.However, article 1(1) of theEqual Treatment Directivestates that the purpose of the Directive is to put into effect the principle of equal treatment for men and women, while article 2(1) of the Directive provides that the principle of equal treatment means that there is to be "no discrimination whatsoever on grounds of sex, either directly or indirectly". Moreover,recital3 in the preamble to the Directive asserts that equal treatment for men and women constitutes one of the objectives of theEuropean Community.The Tribunal considered the scope of the Directive could thus possibly extend to the protection of transsexuals and decided tostay proceedingsand refer that interpretation of the Directive to theEuropean Court of Justice.The Court responded in its judgment of 30 April 1996.[7][9][11]

Advocate General's opinion

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The opinion of theAdvocate Generalis distinct from the judgment of the Court and has an advisory character. In an influential opinion, Advocate GeneralTesaurostressed the need for the law to keep pace with the times.[12][13]

24... 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 profound conviction that what is at stake is a universal fundamental value, indelibly etched in modern legal traditions and in the constitutions of the more advanced countries: the irrelevance of a person's sex with regard to the rules regulating relations in society. Whosoever believes in that value cannot accept the idea that a law should permit a person to be dismissed because she is a woman, or because he is a man, or because he or she changes from one of the two sexes (whichever it may be) to the other by means of an operation which - according to current medical knowledge - is the only remedy capable of bringing body and mind into harmony. Any other solution would sound like a moral condemnation - a condemnation, moreover, out of step with the times - of transsexuality, precisely when scientific advances and social change in this area are opening a perspective on the problem which certainly transcends the moral one...

Opinion of Mr Advocate General Tesauro delivered on 14 December 1995. - P v S and Cornwall County Council

Judgment

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The Court ruled that the Equal Treatment Directive was an expression of a fundamental principle of equality and that the Directive precluded dismissal for a reason related to gender reassignment.[5]

17. The principle of equal treatment "for men and women" to which the directive refers in its title, preamble and provisions means, as Articles 2(1) and 3(1) in particular indicate, that there should be "no discrimination whatsoever on grounds of sex".

18. Thus, the directive is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law.

19. Moreover, as the Court has repeatedly held, the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure...

20. Accordingly, the scope of the directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.

21. Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.

22. 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, and which the Court has a duty to safeguard.

Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143

The Court noted that Article 2(2) of the Directive, relating to occupations where the sex of the worker was a determining factor, could be used to justify such a dismissal, but that there was no evidence this was so in P's case.[14][a]

Commentary

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  • Catherine Barnardconsiders the judgment important both for its broad approach to the principle of equality and for recognising both the moral and economic significance of the principle. She discusses the potential of the judgment as well as the barriers to implementing its potential.[16]
  • Eva Bremssets the judgment in the context of the national legislation of many European countries and the case law of theEuropean Court of Human Rightsof the time, which showed a moral consensus for maximum legal recognition of transsexuals, for example in the matter of marriage law and of privacy issues in relation to recording the natal sex on birth certificates.[17]
  • Chalmerset al.note thatP v S,along withDefrenne v Sabena,were amongst the first ECJ cases to acknowledge that the principle of equal treatment set out inArticle 157of theTreaty on the Functioning of the European Union(TFEU) enshrines a fundamental right.[18][19]They discussKB v National Health Service Pensions Agency,where the Court left it the UK national courts to determine whether a transsexual could rely on his rights under Article 157 in a matter relating to assigning survivor's pension rights. They note that the Court's reluctance to fully engage with the complexities of gender identity is matched by the relatively timid revision atrecital 3of theEqual Treatment Directive (2006),which refers only to discrimination arising from gender reassignment.[20][21][b]

See also

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Notes

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  1. ^Article 2(2) of the Directive provides "[The] Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor."[15]
  2. ^Recital 3 of the 2006 revisedEqual Treatment Directivestates "The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person."[20]

References and sources

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References
  1. ^P v S,P v S and Cornwall County Council [1996] ECR I-2143 (C-13/94)
  2. ^Chalmerset al.2011,p. 548
  3. ^Whittle 2002,p. 2
  4. ^P v S,[13]
  5. ^abP v S,[17]..[22]
  6. ^Equality and Human Rights Commission,Transgender case decisions
  7. ^abcWhittle 2002,p. 3
  8. ^Whittle 2002,p. 4
  9. ^abcBrems 1996,Case Law: P. v. S.
  10. ^Equality Act sch.3, part 7, para 28
  11. ^abP v S:full record of the ECJ proceedings 1996,p. 1
  12. ^Advocate General,[9]
  13. ^Barnard 1997,p. 3
  14. ^P v S,[23]
  15. ^Equal Treatment Directive 1976,[2.2]
  16. ^Barnard 1997,p. 5
  17. ^Brems 1996,pp. 344-5– viaHeinOnline(subscription required)
  18. ^P v S,[18]
  19. ^Chalmerset al.2011,p. 538
  20. ^abEqual Treatment Directive 2006,recital 3
  21. ^Chalmerset al.2011,pp. 548, 549 n. 77
Sources
Further reading
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