Legal matters
UK Legislation | European Union Legislation | Overseas Legislation | Employment tribunals | Medical funding | Other UK court cases | Human Rights in International Law | ECtHR cases | Goodwin & ’I’ | ECJ cases | Foreign court cases | Changing the law | Police | Prisons | Other
… to maintain that the unfavourable treatment suffered by P. was not on grounds of sex because it 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 fundamental and inalienable value which is equality.
from Advocate General Tesauro’s opinion in the landmark P v S case.
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UK Legislation
- The Sex Discrimination (Amendment of Legislation) Regulations 2008 — adds protection from discrimination for trans people in the areas of The Provision of Goods, Services, Facilities and Premises
- The Gender Recognition Act 2004 — legislation to give legal recognition to trans people as passed by Parliament.
- The Family Proceedings (Amendment No. 3) Rules 2005 — instructions to the courts to accept an Interim Gender Recognition Certificate as grounds for annulment of a marriage.
… Gender Recognition Act 2004 Procedure — Court practice direction relating to annulment where there is a gender recognition certificate. - The Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 — lays out exemptions to the privacy provisions of the Gender Recognition Act 2004.
- The Civil Partnership Act 2004 — legislation to enabled the registration of same sex partnerships and amended the GRA.
- The Sex Discrimination (Gender Reassignment) Regulations 1999 — amending UK law to outlaw discrimination against trans people in certain circumstances
- Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999: Northern Ireland’s equivalent, and broadly similar, regulations
- The Sex Discrimination Act 1975 (Size: 153Kb)
- Schedules to the Sex Discrimination Act 1975 (Size: 57Kb)
(NB: the Schedules contain the full text of the Equal Pay Act 1970, as amended by the SDA) - The Human Rights Act 1998 — legislation to incorporate the European Convention of Human Rights into UK law (83Kb)
- The Equality Act 2006 — Primary legislation which establishes a Commission for Equality and Human Rights as well as introducing a public sector duty to promote gender equality. It includes an enabling clause to allow legislation to outlaw discrimination in goods and services based on sexual orientation
… see also the Public Sector Gender Duty - The Protection from Harassment Act 1997 — introduced four new criminal offences which have been used by trans people to obtain justice.
European Union Legislation
- Directive 2006/54/EC — This Directive aims to consolidate (and repeal) a number of separate Directives that already exist on gender equality as well as codifying some of the case-law — all with a view to making the law more transparent. It includes explicit protection against discrimination arising from the gender reassignment of a person.
- The EEC Equal Treatment Directive 1976: establishing in European Community law the principle of equal treatment in employment and training
… updated in 2000 - Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services
… and as a PDF
… with accompanying guidance notes
… plus the Women and Equality Unit’s own guidance.
… and the minutes which refer to the PvS case as relevant in implementing that new Directive
Overseas Legislation
- Austria — 1993
- Finland — 2002
- Germany — 1980
- Italy — 1982
- Kazakhstan — 2006
- Netherlands — 1985
- New Zealand — 1995
- South Africa — 2003
- South Australia — 1998
- Spain — 2006
- Sweden — 1972
- Turkey — 1988
Draft legislation
- Isle of Man — Draft Gender Recognition Bill and consultation document
Employment Tribunals
Note: Employment tribunals were formerly known as Industrial Tribunals.
A v West Yorkshire Police | Other Police Cases | Other employment cases
A v West Yorkshire Police![[top]](/graphic/icon/up_small.gif)
- A-v-West Yorkshire Police — full text of the 1999 employment tribunal ruling which, after a fuller examination of the law, upheld the applicant’s complaint of sex discrimination
- A-v-West Yorkshire Police — full text of the 1999 employment tribunal’s second decision, in which it ruled that part of the 1999 amendments to the Sex Discrimination Act contravene the Equal Treatment Directive.
- West Yorkshire Police-v-A — full text of the 1999 Employment Appeal Tribunal’s important precedent-setting decision upholding the validity of an a Restricted Reporting Order extending beyond promulgation.
- West Yorkshire Police-v-A (EAT) — full text of the 2001 Employment Appeal tribunal’s substantive ruling
- A-v-West Yorkshire Police (Court of Appeal) — 2002 Court of Appeal ruling in favour of A
- A-v-West Yorkshire Police — full text of the 2003 House of Lords rule, upholding the earlier ruling of the Court of Appeal.
Other police cases
- Ashton-v-West Mercia Police — full text of the 1999 employment tribunal ruling which rejected a claim of discrimination by a trans police officer dismissed from a civilian post to which she had been redeployed.
- Ashton v West Mercia Police: full text of the decision of the Employment Appeal Tribunal upholding the dismissal of Ms Ashton’s claim of sex discrimintion and disability discrimintion (July 2000)
- M-v-West Midlands Police — full text of the 1996 industrial tribunal ruling which allowed a police force to refuse to recruit trans officers
Other employment cases
- Mills and Crown Prosecution Service v. Marshall — full text of the 1998 Employment Appeal Tribunal ruling which upheld an industrial tribunals’s decision to hear a claim of sex discrimination after the expiry of the three-month limit, because until the ECJ’s ruling in the P-V-S case Ms Marshall had been unaware that she had a right to bring a claim.
- Kristina Sheffield v. Air Foyle Charter Airlines — full text of the 1998 industrial tribunal ruling in which the applicant was found to have been unlawfully discriminated against because she was trans when her application for employment was rejected.
- Chessington World of Adventure-v-X — full text of the 1997 employment appeal tribunal ruling which confirmed that the 1975 Sex Discrimination Act does prevent discrimination against trans people (38Kb)
- DA-v-Suffolk County Council — full text of the 1999 employment tribunal decision which found unlawful discrimination against a trans woman who had been providing personal care to people with learning disabilities.
- Cash v The Ministry Of Defence (Royal Navy): full text of the decision of the Employment Appeal Tribunal which upheld the dismissal of her claim of unfair dismisal and medical negligence (October 2000)
- X v NHS Trust Pensions Agency: trans man not entitled to partner’s pension (Employment Appeal Tribunal, 1999)
- White v. British Sugar: full text of the 1977 industrial tribunal ruling which concluded that at that time, the Sex Discrimination Act did not outlaw discrimination on grounds of gender reassignment.
- X v. Brighton & Hove City Council: Council ordered to pay £34,765.18 for twice victimising and discriminating against a transgender ex-employee.
- Following this Employment Tribunal, a disciplinary order was made against the council employee concerned by the General Teaching Council for England.
Medical funding
- High Court judgment in the case of A, D and G v North West Lancashire Health Authority, December 1998. The High Court ruled in favour of three trans women contesting the Health Authority’s refusal to fund surgery. (Size: 71Kb)
- Appeals Court judgment in the case of North West Lancashire Health Authority v A, D and G, July 1999. The Appeals Court upheld Hidden J’s judgment that the Health Authority’s refusal to fund surgery was “unlawful and irrational”. (Size: 101Kb)
- Yvonne Watts v Bedford Primary Care Trust & Secretary of State for Health, May 2006. Case regarding the right to treatment abroad paid for by the NHS.
…Commentary by Stephen Whittle.
Rogers v Swindon PCT
Although not a case involving trans people the Rogers case examined the A,D & G case in some detail confirming that it remains good law for deciding upon treatment decisions. The case went on to examine what constitutes “exceptional circumstances” in providing treatment which is deemed low priority
- R (on the application of Rogers) v Swindon NHS Primary Care Trust and another Full High Court ruling.
- R (on the application of Rogers) v Swindon NHS Primary Care Trust and another Full Court of Appeal ruling.
Other UK Court cases
- Corbett v. Corbett (otherwise Ashley) — full text of 1970 judgment by Lord Justice Ormrod which has since denied trans citizens of the UK legal recognition in their true gender (Size: 93Kb)
- R v. Tan and others — 1983 Appeals Court ruling which upheld the applicability of Ormrod’s test of sex for a trans woman convicted for engaging in prostitution. Classification as male exposed her to more severe penalties than if she had been recognised as female. (Size: 49Kb)
- R v Registrar General for England and Wales, Ex parte P & G: full text of the 1996 High Court judgment in the case where two trans women unsuccessfully sought judicial review of the Registrar-General’s refusal to alter their birth certificates. (36Kb)
- R v John Matthews: full text of the ruling which confirmed that non-consenting penile penetration of a transsexual woman’s vagina may be prosecuted as rape. Reading Crown Court, October 1996
- Bellinger v Bellinger: full text of the High Court ruling rejecting an application from a trans woman who had married in a registry office for her marriage to be recognised as valid. November 2000
- Bellinger v Bellinger (appeal): Full text of the Appeals Court ruling upholding the refusal of the High Court to recognise as valid the marriage of a trans woman. July 2001 (144Kb)
- Lords of Appeal: Bellinger v Bellinger: full text of the House of Lords ruling upholding the refusal of the lower courts to recognise as valid the marriage of a trans woman. (April 2003)
- Government FAQ on the Bellinger case published following the House of Lords ruling
- W-v-W: full text of the October 2000 High Court ruling rejecting an application to annul the marriage of an intersex woman (130Kb)
Human Rights in International Law
Europe
- European Convention on Human Rights and Fundamental Freedoms
- Broadening Article 14 of the European Convention — a proposal from The International Lesbian and Gay Association (ILGA) to include “gender identity” as an expressly prohibited ground of discrimination
- Council of Europe: treaties — a summary of the major European human rights treaties
- Rights in Britain - an examination of the impact in the UK of the European Convention on Human Rights and Fundamental Freedoms
United Nations
- The Universal Declaration of Human Rights: one of the founding documents of the United Nations, setting out “a common standard of achievement for all peoples and all nations”.
- Sexual Minorities: The United Nation’s Call for Submissions — Independent Experts of the United Nations Commission on Human Rights call for submissions on sexual minority issues (May 2001)
- PFC’s submission to the United Nations Human Rights Committee
- Petition for Equal Human Rights for Transgendered People (13 Apr 2006)
A global petition set up by two US trans women, Laurie-Anne and Michelle, concerned at the continuing high levels of murder, violent assault and officially sanctioned harassment of gender variant people in many parts of the world. The organisers assert that trans people living in the United States have a one in twelve chance of being murdered, whereas the risk for other americans is 1 in 18,000.
… Signature roll
… PFC News Background - Press Release on Statements to the UNHRC (5 Dec 2006)
… Norwegian Statement on Sexual Orientation, Gender Identity and Human Rights (1 Dec 2006)
… NGO Joint Statement on Sexual Orientation, Gender Identity and Human Rights (1 Dec 2006) - The Yogyakarta Principles — These Principles were developed at a meeting of international human rights experts in Yogyakarta, Indonesia in November 2006, co-hosted by the International Commission of Jurists and the International Service for Human Rights, on behalf of a coalition of human rights organisations.
Trans-related cases in the ECtHR
ECtHR cases heard in full | Cases heard only by the Commission | The X, Y, & Z case | Sheffield & Horsham | Goodwin & ’I’
ECtHR cases heard in full
Warning! These documents are long, and will take a while to download. Sizes indicated in italics.
- The Van Oosterwijck case, October 1980 (Size: 77Kb)
- Rees v. The United Kingdom, September 1986 (Size: 53Kb)
- The Cossey case, August 1990 (Size: 128Kb)
- B. v. France, January 1992 (Size: 126Kb)
- See also:
- Grant v. UK, May 2006
ECtHR cases heard only by the Commission
(The European Commission of Human Rights examines cases to seek a resolution where possible, and otherwise to decide whether the case should be referred to the European Court of Human Rights, making recommendations if it does so)
- Paula James v. United Kingdom: commission ruled that there was no violation of the Convention, by majority vote, December 1988 (plain text, 45Kb)
- W. v. United Kingdom: commission ruled that there was no violation of the Convention, unanimous on one count, by majority vote on the other; March 1989 (plain text, 47Kb)
- C. v. United Kingdom: commission ruled that there was a violation of Article 12 of the Convention, but no violation of article 8, by majority vote on both counts; May 1989 (plain text, 45Kb)
- Eriksson & Goldschmidt v. Sweden: case ruled inadmissible, November 1989 (plain text, 7Kb)
- I. v. United Kingdom: case ruled partly admissible, May 1997 (plain text, 21Kb)
- L.F. v. Ireland: case ruled inadmissible, July 1997 (plain text, 47Kb)
- Roetzheim v. Germany: case ruled inadmissible, October 1997 (plain text, 15Kb)
- Paul KARA v. United Kingdom: case ruled inadmissible (22 October 1998)
- Goodwin. v. United Kingdom: case ruled admissable, December 1997 (plain text, 32Kb)
- Parry & Parry v. United Kingdom: case ruled inadmissable, April 2008
The X, Y, Z case
In which a trans man took his case to the European Court of Human Rights, but failed to secure the right to be recognised as the father of his children.
Sheffield & Horsham
In this case, heard by the ECtHR in 1998, two trans women claimed that the UK government’s refusal to correct their birth certificates violates the European Convention for the Protection of Human Right and Fundamental Freedoms.
- Foreword to Liberty’s amicus brief for the Sheffield and Horsham case
- Liberty’s amicus brief for the Sheffield and Horsham case, in three parts (Part 1, Part 2, Part 3)
- ECHR: Commission’s preliminary ruling on admissibilityof the case of Rachel Horsham: September 1995 (plain text, 12Kb)
- ECHR: Commission’s Final ruling on admissibility of the case of Rachel Horsham: January 1996 (plain text, 14Kb)
- ECHR: Commission’s preliminary ruling on admissibility of the case of Kristina Sheffield: September 1995 (plain text, 13Kb)
- ECHR: Commission’s Final ruling on admissibility of the case of Kristina Sheffield: January 1996 (plain text, 15Kb)
- ECHR: Commission report on Horsham v. United Kingdom (56Kb)
- ECHR: Commission report on Sheffield v. United Kingdom (59Kb)
- Full text of the Court’s judgment (1998-07-30, 117Kb)
- Analysis: Court criticises UK government
- Kristina Sheffield v. Air Foyle Charter Airlines — full text of the 1998 industrial tribunal ruling in which the applicant was found to have been unlawfully discriminated against because she was trans when her application for employment was rejected.
Goodwin & ’I’
In these landmark cases, the ECtHR finally ruled in favour of the transsexual applicants from the UK, prompting the government to introduce the Gender Recognition Bill to give effect to the ECtHR’s judgment.
- Goodwin v United Kingdom full text of the Europe Court of Human Rights judgment (2002-07-11)
- ’I’ v United Kingdom full text of the Europe Court of Human Rights judgment (2002-07-11)
- Goodwin & ’I’ v. United Kingdom Government: What Does it Mean?
- Goodwin & ’I’ v. United Kingdom Government: What We Need to do Now
European Court of Justice (ECJ) cases
Richards v Secretary of State for Work and Pensions | K.B. v NHS Pensions Agency | P v S | Miscellaneous Cases
Richards v Secretary of State for Work and Pensions
On the 27th April 2006, European Court of Justice ruled that a British transsexual woman was discriminated against when she was treated as a man and refused a state pension. The case has important implications for other transsexual women in the UK, who may be able to claim backdating of their pensions.
K.B. v NHS Pensions Agency
The female partner of a trans man went to court to try to secure her right to marry him in order that he could inherit her pension if she died. The Court of Appeal referred the case to the European Court of Justice, which ruled in principle in favour of the applicant.
- X v NHS Trust Pensions Agency: trans man not entitled to partner’s pension (Employment Appeal Tribunal, 1999)
- ECJ Advocate General: K.B. v NHS Pensions Agency — full text of the recommendation of the Advocate General (2003-06-10)
- ECJ: K.B. v NHS Pensions Agency — full text of the judgment of the European Court of Justice (ECJ) (2004-01-07)
P v S
The landmark case of P v S and Cornwall County Council, in which a Press For Change activist secured employment protection for transsexual people throughout the European Union.
- Report of the proceedings — full record of the proceedings before the European Court of Justice, including full text of the judgment (82Kb)
- Victory in the European Court of Justice — review of the Court’s decision
- Jumping the hurdles of Gender : Transsexuals finally make legal headway — review of the Advocate-General’s recommendation
- The ECJ recommendation — recommendation of the Advocate General
- Dinner in Cornwall — P explains how it all began.
- Living Truth — P explains the issues
- Appeal
- The EEC Equal Treatment Directive 1976: the crucial outcome of P’s case was the ruling that the ETD does apply to trans people
Miscellaneous Cases
- Mangold v Helm: where the court ruled that an EC directive had to be taken into account from the date that it was made rather than the date of national legislation. This is particularly important in relation to the Directive on access to goods, services and facilities.
Foreign court cases
Some significant court cases from other jurisdictions
- Littleton v. Prange (Texas Appeals Court, October 1999). This judgment upheld the decision of a lower court that trans woman Christie Lee Litteton was legally male, and that her marriage to her late husband had been invalid. As with the UK’s landmark Corbett-v-Corbett case in 1970, this case was sparked by property issues: Littleton had sued doctors for malpractice following the death of her husband. They responded by claiming that she was legally male and as such could not be the surviving spouse of a man.
- New Zealand Attorney General v. The Family Court at Otahuhu (November, 1994). The judgment which established in New Zealand law the principle that, for the purposes of marriage, trans people should be legally recognised in their reassigned sex.
- M v. H (May 1999). In this case, Canada’s Supreme Court ruled that gay and lesbian couples have the same rights and obligations under family law as unmarried heterosexual couples. (Links to full text of the judgment).
- Re: Kevin — This Australian case questioned the validity of Kevin’s marriage based on his being a transman.
… Re: Kevin — appeal by the Australian Government.
… Research note used in Re: Kevin - Re: Kanteras &mdash Opinion in the divorce hearing and custody case of trans man Michael J Kanteras
… and the Full Judgement. - Legal Recognition in the Baliwick of Guernsey
Changing the law
Issues to consider in legislating for trans rights
- Legislating for Transsexual Rights: a prescriptive form — Stephen Whittle reviews other countries’ experience and examines how UK laws could be framed
- Gemeinschaftsfremden — or how to be shafted by your friends — sterilization requirements for trans people
- Why trans men should not be required to undergo vaginectomy: affidavit by Dr Stephen Whittle for a successful 1997 challenge to Quebec’s law on change of legal gender.
- An Association For As Noble A Purpose As Any - Stephen Whittle looks at marriage rights for trans people
- The Conceptualisation Of Transsexualism In Matrimonial Proceedings, by Antony Mark Noble
- Much More than Marriage: the law’s refusal to allow UK trans people to marry is just a symptom of a much wider failure to recognise some human realities, argues Claire McNab
Police
- M-v-West Midlands Police — full text of the 1996 industrial tribunal ruling which allowed a police force to refuse to recruit trans officers (75Kb)
- Searching Questions Tax Police - in the UK, transsexual women have to be searched by men, and vice versa for transsexual men!
- Greater Manchester Police policy on policing LGBT people: “a practical guide to help officers understand the issues involved in dealing sensitively with lesbian, gay and trans communities” (2000)
- Metropolitan Police Guidelines: “advice for officers dealing with transsexuals and transvestites” (1995)
- Is He our Sister? Sex, Gender, and Transsexuals Under European Law (external link)
- See also the section on Employment Tribunals, for details of discrimination cases involving police officers and recruit applicants.
Prisons
Other
- Grant v South-West Trains Ltd: full text of the 1998 judgment of the European Court of Justice on refusal of travel concessions to cohabitees of the same sex (ECJ, 1998)
- Discrimination and privacy. A third sex ruled out by tribunal: pension scheme not required to support partner of trans person (The Lawyer 1999-04-28)
- Apply Now to have your Birth Certificate Changed
- Court Case Diary
- The strange case of Ewan Forbes : when records of a birth cert change disappeared.
