Round table
„Upholding rights of transgender people in
Europe –
obligations of member states under the current
European legislative framework”
21 November 2011
Ankara, Turkey
Areas of inequality (I)
Matters which are usually not affected by genderrelated differences, but in which trans people are
systematically treated less favourably than nontrans.

access to medical and social services

employment

social activities

housing

parental responsibilities including adoption/ fostering
Areas of inequality (II)
Matters which hinge on legally defined sex.

marriage

life insurance

state pensions

gender specific offences

imprisonment
Areas of inequality (III)
Areas where trans people must rely on the
goodwill of others to avoid discrimination.

inheritance

sport

education

occupational pensions

police searches

gender specific victim support
Areas of inequality (IV)
Instances where access to equal treatment relies
on recognition of marital / partnership status

income related benefits

survivor pensions

inheritance tax

next of kin issues incl. parental rights

criminal injuries

workplace injuries
Further reading
Document Link
Document Link
Case Law
European Court of Human Rights
European Court of Human
Rights
X, Y, Z v. the UK (1997)
Relationship between a trans man and his female
partner’s biological child = family life (Art. 8)
Kara v. the UK (1998)
Cross-dressing (in the work place) protected (Art. 8)
European Court of Human
Rights
Van Kück v. Germany (2003)
Gender identity is „one of the most basic essentials of self-determination” =
protected under Art. 8
“Difference of treatment on the ground of sex” applies also to post-operative trans
people.
Burden of proof for the necessity of gender reassignment treatment must not be
placed on the trans person.
Courts must not oppose medical experts recommendation.
European Court of Human
Rights
Grant v. the UK (2006)
Pension rights as a woman (lower retirement age than the one applicable to men)
Schlumpf v. Switzerland (2009)
Mechanical application of a minimal time of two years seeing a psychiatrist before
health insurances are obliged to cover gender reassignment surgery violates Art.
8.
P.V. v. Spain (2010)
“Transsexuality” is a stand-alone ground under Art. 14
Recommendation of Committee
of Ministers on combating discrimination on
grounds of sexual orientation and gender
identity 2010(5)
The Recommendation in a
nutshell


adopted 2010
„soft law“, but ALL Council of Europe members
signed up to it!

Monitoring 2012; review on progress: 03/2013

ILGA-Europe  specific support & toolkit

Trans-inclusive and specific aspects
No discrimination on grounds of
gender identity in fields of:



9./10. Freedom of association: forming and
running of organizations, public funding,
13.-15. Freedom of expression and peaceful
assembly: information, protection of peaceful
demonstrations
26./27. Parental responsibilities, guardianship
and adoption
No discrimination on grounds of
gender identity in fields of:
29. employment and occupation in the public as well as
in the private sector incl. access to employment and
promotion, dismissals, pay and other working
conditions, including the prevention, combating and
punishment of harassment and other forms of
victimisation
30. employment: right to privacy of transgender
individuals, esp. application process
No discrimination on grounds of
gender identity in fields of:

31./32. education: safety, free from violence,
bullying, social exclusion or other forms of
discriminatory and degrading treatment,
information provision, protection and support for
trans students
No discrimination on grounds of
gender identity in fields of:
33. health: highest attainable standard of health
35. Member states should take appropriate measures to ensure
that transgender persons have effective access to
appropriate gender reassignment services, including
psychological, endocrinological and surgical expertise in the
field of transgender health care, without being subject to
unreasonable requirements; no person should be subjected
to gender reassignment procedures without his or her
consent.
No discrimination on grounds of
gender identity in fields of:
36.
Member states should take appropriate legislative and other
measures to ensure that any decisions limiting the costs
covered by health insurance for gender reassignment
procedures should be lawful, objective and proportionate.
Case Law
European Court of Justice
EU Case Law
P. v. S. and Cornwall County Council Case C-13/94 (1996)
Dismissal of a transsexual employee for a reason relative to gender-reassignment
surgery is sex discrimination, contrary to the principle of equal treatment enshrined
which all EU Member States are bound to implement.
K.B. and National Health Service Pensions Agency, Secretary of State for Health Case C117/01 (2004)
States have to guarantee the right to heterosexual marriage after gender recognition.
Applicant was the partner of a trans person Not awarding a trans person’s partner a widower’s
pension by hindering the couple to get married (precondition to widower’s pension) is an
inequality of treatment in conflict with EU law.
Sarah Margaret Richards v Secretary of State for Work and Pensions Case C-423/04 (2006)
Directive 79/7/EEC precludes a law which bars a male-to-female transsexual from benefitting from
a pension at the age at which women become eligible to collect a pension.
Gender ReCast Directive
(2006/54/EC)
The Directive in a nutshell


This Directive consolidates (and repeals) a number of separate
gender equality Directives and codifies some of the case-law (inc. P
v. S).
It includes explicit protection against discrimination arising from the
‘gender reassignment’ of a person.
 It is not clear whether gender reassignment includes transgender
people who are not transsexual and who do not intend to undergo
gender reassignment.

Had to be implemented by all EU-27 and EEA-3 into national law by
15/08/08.
The Areas Covered

Dir 2006/58/EC covers:
(a) access to employment,
including promotion, and to
vocational training;
(b) working conditions,
including pay;
(c) occupational social
security schemes.
The Protections Provided

Direct discrimination

Indirect discrimination

Harassment

Sexual harassment

Pay discrimination

Discrimination regarding occupational social security schemes

Instruction to discriminate

Discrimination related to pregnancy and maternity leave

Victimisation

Equality Bodies at national level needed to be set up
Impact of the Directive
 So far clear reference to ‘gender identity and
gender expression’ remains absent in the
legislation of most of the EU Member States.
 Only 6 EU Member States expressly introduced
reference to a ground that is equivalent to ‘gender
identity and/or gender expression’ in national
gender equality legislation.

The European Commission is currently undergoing
the 1st 5-year round of assessment of the
implementation of Dir 2006/54/EC.
Patchy Protection
Gender Goods & Services
Directive
(2004/113/EC)
Gender Goods and Services
Directive


The Gender Goods and Services Directive
provides protection on the grounds of gender in
access to goods and services. (education is not
covered).
The text of the Directive does not make any
reference to trans people, it is known that
transsexuals are covered through the minutes
of the joint Council and Commission meeting
(2606th Meeting).
2606th meeting of the Council of the
European Union (EMPLOYMENT, SOCIAL
POLICY, HEALTH AND CONSUMER
AFFAIRS)
2. Joint Council and Commission Statement re Articles 3 & 5
"Concerning Article 3 and its application to transsexuals, the Council
and Commission recall the jurisprudence of the Court of Justice in
case C-13/94 P v S and Cornwall County Council, where the Court
held that the right not to be discriminated against on grounds of sex
cannot be confined simply to discrimination based on the fact that a
person is of one or other sex, and may include discrimination
arising from the gender reassignment of a person.”
Good Practices
Good practice – legislation (1)

Sweden’s Discrimination Act (SFS 2008:567) and the Act
Concerning the Equality Ombudsman (SFS 2008:566) cover
the grounds of ‘sex, transgender identity and expression’
amongst other grounds.
Definition:


1. Sex: that someone is a woman or a man.
2. Transgender identity or expression: that someone
does not identify herself or himself as a woman or a man
or expresses by their manner of dressing or in some
other way that they belong to another sex.
Good practice – legislation (2)

The UK’s Equality Act 2010 (Art 16) clearly protects trans
people during gender reassignment

16. Gender reassignment discrimination: cases of absence from
work
(1)This section has effect for the purposes of the application of Part 5
(work) to the protected characteristic of gender reassignment.
(2) A person (A) discriminates against a transsexual person (B) if, in
relation to an absence of B's that is because of gender reassignment, A
treats B less favourably than A would treat B if—
(a)B's absence was because of sickness or injury, or
(b)B's absence was for some other reason and it is not reasonable for B to be
treated less favourably.
(3) A person's absence is because of gender reassignment if it is because
the person is proposing to undergo, is undergoing or has undergone the
process (or part of the process) mentioned in section 7(1).
Case-Studies
...and now it is your turn!

2 working groups

discussion of one case in your group (20‘)

Bring back 1 comment and 1 question to the
planery (10‘)
Case I
Harassed and kicked out of Model Railroad Construction Firm
After 35 years as employee and 5 years as top manager, Leila Z. comes
out as a transsexual woman to her colleagues at Model Railroad
Construction Firm at the general assembly. A member of the board
and another manager insult her in front of the assembly: “You make
me want to puke. You are disgusting me.” Within half a year,
management of the firm informs her that “for the sake of the peace
within the firm”, she has to leave her position.
 Are there discriminatory aspects in this case? If yes, what are they?
Which legal tools could be used?
Case II
Not fit to change - Fitness company
Emma is a healthy, 40 plus trans woman enjoying her job a lot in Budapest, Hungary.
Emma has undergone gender reassignment treatment and has been issued
identification documents reflecting her female gender identity. To balance her
stressful job as a financial consultant she wants to join a gym. She sets a meeting at
the local branch of the big fitness chain “maxi fit” to learn about conditions for
membership. Upon arrival, Emma asks for the changing facilities. The receptionist at
the counter shows her the way to the men’s locker room. Emma kindly requests to be
shown the women’s changing facilities. The receptionist refuses and calls for the
manager. The manager says that she cannot use the women’s changing facilities as
this would create discomfort for and pose a threat to other female customers.
Disappointed and frustrated Emma leaves. She complains to the “maxi fit”
management and demands to be using the women’s locker rooms. However, she
receives the written reply from the fitness company saying that she can only become
a member if she agrees not to use the female changing rooms.
 Are there discriminatory aspects in this case? If yes, what are they? Which legal tools
could be used?