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Since the Human Rights Act (HRA) came into force in 2000, many claims for the right to a private life have been staked in the courts. The extent to which a private life is maintained in the workplace has long been a contentious issue. One group whose privacy rights remain unclear are transsexuals. Even after going through the long process of gender reassignment, they remain at threat of discrimination due to a lack of legal recognition of their new status.
There have been significant advances in the prohibition of discrimination against transsexuals in employment. The Sex Discrimination (Gender Reassignment) Regulations 1999 brought the protection of the Sex Discrimination Act (SDA) to those who are undergoing gender reassignment, who plan to undergo it or have undergone it.
However, the law preventing transsexuals from marrying in their reassigned gender, or from changing their birth certificates, permits discrimination as it ties transsexuals to their former gender. The detriment that the present state of the law causes to individuals is demonstrated in two recent employment law cases.
In KB v NHS Trust Pensions Agency and Secretary of State for Health (2000), the Employment Appeals Tribunal (EAT) found that an NHS pension scheme did not unlawfully discriminate against a woman whose transsexual partner could not benefit from her pension if she predeceased her partner. The reasoning for the decision was that in light of the decision of the European Court of Justice (ECJ) in Grant v South West Trains (1998), European Law did not require member states to treat people who were in a relationship but unable to marry as equivalent to those who were married.
It was only because the transsexual partner remained a biological female under UK law that the couple were unable to marry. This case went to the Court of Appeal which referred it to the ECJ. The Luxembourg court has had to consider whether transsexuals are entitled to pension benefits under Article 141 (formerly Article 119 of the Treaty of Rome). Judgment has not yet been delivered.
In Chief Constable of West Yorkshire Police v A & Secretary of State for Education and Employment (2002), the EAT held that the law against transsexuals joining the police force was not contrary to the SDA. The law requires that certain searches be conducted by members of the same sex as the person to be searched. A was a male-to-female transsexual. She was not permitted to carry out searches on women, as in the eyes of the law she was still male. This was because, according to the decision in Corbett v Corbett (1970), gender was fixed at birth. The court said that any change had to be made by Parliament and Parliament should consider the matter.
Despite this unsatisfactory state of affairs, the outcome of the cases of Goodwin & I v UK and Bellinger v Bellinger (2002) could have a fundamental impact on transsexuals' right to amend their birth certificates or marry a person of the same sex as they had been at birth.
Christine Goodwin is a transsexual who took her case to the European Court of Human Rights in March 2002. Her representative, Laura Cox QC of Cloisters, argued that the UK has failed to respect her right to a private life and discriminated against her by refusing to provide her with a new national insurance number. Goodwin's complaints include being denied the right to marry.
If the Strasbourg court accepts Goodwin's arguments that her rights under Articles 8, 12 and 14 of the European Convention on Human Rights have been breached, the UK Government would be under tremendous pressure to act to recognise transsexuals' post-operative sex.
It is hoped that the case will force the UK to give legal status to transsexuals. The only other countries in the Council of Europe that still do not recognise sex changes as legally valid are Andorra, Albania and Ireland.
The Government has done nothing in the way of even considering reforming the legal status of transsexuals since April 2000. The relevance of this inaction is that there is only so long that the UK can sustain its position in Strasbourg by reliance on the margin of appreciation.
The Government's inaction was criticised by the Court of Appeal last year in the case of Bellinger v Bellinger, a pre-HRA case, where a transsexual woman failed to get her 20-year marriage to a man recognised as valid. The Appeal judges said that Mrs Bellinger would have to wait for the law to be changed by Parliament and added that they were dismayed that nothing at all had been done by the Government.
The House of Lords is likely to hear Bellinger's appeal this year. If she or Goodwin succeed, the quality of transsexual's working lives will undoubtedly improve. A change in the law is long overdue.
Rachel Crasnow is a barrister at Cloisters and is co-author of Employment Law and the Human Rights Act.