Discrimination & privacy. A third sex ruled out by tribunal

Transsexuals who are treated equally to members of their original sex cannot claim 'discrimination', writes Ruth Bamforth. Ruth Bamforth is a barrister at the DSS solicitor's office. Views expressed are the author's own. A recent industrial tribunal case has examined whether an occupational rule that a pension scheme that allows a survivor's benefits to be paid only to the deceased member's spouse constitutes sex discrimination.

Whether the pensions rule was contrary to Article 119 of the EC Treaty was decided in B v Secretary of State & ors. It concerned a member of the pensions scheme whose partner was a transsexual and therefore could not legally marry the member.

The issue in B forced the tribunal to consider and reconcile the European Court of Justice (ECJ) decisions of P v S & Cornwall County Council (1996) and Grant v South West Trains (1998).

The tribunal in B held that the pension scheme's rule was not discriminatory, either directly or indirectly. It said that the provision gave rise to 'an equal inability to qualify for benefit'.

The availability of benefit depended on whether the survivor was married according to English law, a criterion equally easily satisfied by men and women. Indeed, transsexuals in their post-operative sex are not the only persons prohibited from marrying (see s11 Matrimonial Causes Act 1973).

The tribunal rejected the argument that transsexuals formed a third sex. It said that, while B and her partner are accepted as a heterosexual couple, their way forward was not through the tribunal but to seek to influence government social policy. The motive behind the case appears to be an attempt to use the domestic courts, or the ECJ, to obtain legal recognition of a transsexual's post-operative sex.

As recently as 1997 the European Court of Human Rights (ECHR ), in X, Y, Z v UK (1997), said that such non-recognition is not a breach of human rights. The outcome of Sheffield and Horsham v UK before the ECHR on the same point is awaited. In this context the applicant's submission that transsexuals are a 'third sex' is difficult to understand. Transsexualism is a medically recognised condition.

Operative treatment is an attempt to change the sufferer's outward gender to that which she or he feels is her or his true gender. It would defeat the object of the exercise if a transsexual became a member of a third sex instead of the sex to which she or he feels herself or himself to belong.

The case of B caused the tribunal to reconcile two seemingly unreconcilable cases. In P v S, the ECJ said that dismissing a person from his employment because he was undergoing gender reassignment was contrary to the Equal Treatment Directive.

However, in Grant the ECJ held that it was not contrary to Article 119 for an employer to refuse to allow travel concessions to a worker's same-sex partner, when they are granted to a worker's spouse or unmarried, opposite-sex partner.

The possible rationale behind the decision is that the court felt that issues surrounding homosexuals differ from those surrounding transsexuals, rather than side-stepping the political question raised by the Article 6a amendment to the EC Treaty.

Notwithstanding that, it is possible to reconcile the two cases. In P v S, the court said that the directive is the expression in a particular field of the principle of equality, which is one of the fundamental principles of EC law. Sex discrimination, including that arising from gender reassignment, is all-embracing.

Equality, however, is a right which must be established. A transsexual establishes whether or not she or he is discriminated against by seeing whether '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'.

The comparator used shows that the principle of equality cannot, as yet, be used to give legal recognition to the transsexual's new sex. A transsexual must be considered as either a member of the original sex or the new sex – there is no such thing as a third sex. The court, therefore, chose the only possible comparator without recognising the new sex.

Contrary to the suggestion of Advocate General Elmer in Grant, the court in P v S was not taking 'a decisive step away from an interpretation of the principle of equal treatment based on the traditional comparison between a female and a male employee'. Elmer correctly said that the decision was based essentially on gender. The transsexual is still a member of the original sex and cannot be treated more unfavourably than the original sex.

In Grant, the court said that a requirement of a stable heterosexual relationship was not discriminatory, the condition applied regardless of the worker's sex. The court reiterated that relationships between people who cannot marry are not equivalent to marriage. This is consistent with human rights law.

Grant confined P v S to discrimination based on gender reassignment. It upheld ECHR case law establishing that only persons of the biologically opposite sex can marry. Crucially, Grant held that conditions applying equally to men and women are not discriminatory.

The case of B manages to reconcile P v S and Grant. While it must be remembered that transsexuals must not be treated more unfavourably than their original sex as the ruling in B states, 'it is a quantum leap from that to accord a transsexual couple the full legal rights of the sex to which one of them has become reassigned'.