Joint Committee On Human Rights Nineteenth Report

Discrimination on the ground that the victim is a transsexual person

96. When we initially examined the Draft Bill, we devoted a good deal of attention to trying to decide whether, and if so when, the Draft Bill would make it unlawful to discriminate against a person on the ground that he or she is a transsexual person. The position under the present law is as follows. The European Court of Justice in P. v. S.[32] decided that the EC Equal Treatment Directive should be interpreted as protecting people against discrimination on the ground that they are transsexual, because that was so closely connected to a person's sex that transsexual people could not properly be excluded from the general protection against sex discrimination. However, the Directive applies only to employment and vocational training, so when the Sex Discrimination Act 1975 and the equivalent Northern Ireland legislation were amended by statutory instruments, made under section 2 of the European Communities Act 1972, to bring them into line with the requirements of the Directive, the amendment applied only in the fields of employment and vocational training.[33] The legislation as amended makes it unlawful to discriminate in those fields against a person on the ground that he or she has undergone, is undergoing or plans to undergo sex reassignment therapy.[34]

97. It remains lawful at present to discriminate against a person on that ground in the other fields covered by the Sex Discrimination Act 1975, namely education, housing and the supply of goods and services.

98. It seemed to us that it would be strange to make such discrimination unlawful in one field covered by the 1975 Act but to continue to permit it in other fields covered by the same Act. This prompted us to consider whether discrimination against people on the ground that they have undergone, are undergoing or plan to undergo sex reassignment therapy would constitute unlawful discrimination on the ground of sex in the fields of education, housing and the supply of goods and services. It is possible that such discrimination might be regarded as discrimination on the ground of sex, because (adopting rather similar reasoning to that used by the European Court of Justice in P. v. S.) it would discriminate on the ground that the person was of one sex and wanted to be, or had been, of the other. In establishing whether the person had been treated less favourably than others on the ground of sex, it would not be possible to compare his or her treatment with that of a person of the other sex, but in P. v. S. the European Court of Justice accepted that it would not be appropriate to seek a comparator in such cases. We thought that courts in this country might be encouraged to take a similar view in the light of the duty under section 3 of the Human Rights Act 1998 to read and give effect to legislation so far as possible in a manner compatible with Convention rights, including the right to respect for private life and for the home (ECHR Article 8) and the right to education (Article 2 of Protocol No. 1 to the ECHR) taken together with the right to be free of discrimination on the ground of status in the enjoyment of the other Convention rights (ECHR Article 14).

99. However, in the end we did not feel sufficiently confident that this would achieve the desired result, so we asked the Government for its view of the desirability of extending the legal protection against such discrimination under the 1975 Act from employment and vocational training to education, housing and the supply of goods and services.

100. The Government replied that it did not consider it to be a priority to extend the protection in that way at present. It took the view that the most pressing need had been to amend the law in relation to employment and vocational training in order to comply with Community law. It did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields. The Government pointed out that people who have dealings with transsexual people but who do not know them well, particularly in the fields of housing (for example in hostels) and the supply of goods and services, might find it very difficult to know whether a person is transsexual or transvestite, and there might be no way of finding out.

101. We do not accept the Government's approach. The evidence provided by our correspondents shows that there is a significant amount of discrimination against transsexual people in the supply of goods and services, particularly pubs and clubs, and in housing, where homeless people may be left without access to a hostel because the people in charge of hostels for men and women respectively refuse to take in people on account of their status as transsexuals. This is borne out by other anecdotal evidence. We consider that there is a pressing need to protect transsexual people against discrimination in fields other than employment and vocational training. We note that the difficulty of deciding whether a person falls into the category of transsexual person would be no greater than that involved in deciding whether transsexual people, or transvestites, are men or women, but that is not considered to justify refusing protection to men and women against discrimination on the ground of sex.

102. In our view, there is a risk that the legislation in its present form might give rise to a violation of the right to be free of discrimination on the ground of status in the enjoyment of Convention rights, under ECHR Article 14. Gender reassignment affects a person's status, and the relationship with status will be still clearer when a person can obtain a gender recognition certificate with legal effects. As noted above (paragraph 98), the supply of goods and services, housing and education fall within the ambit of the rights under ECHR Article 8 and Article 2 of Protocol No. 1. Discrimination in those fields on the ground of gender reassignment may therefore engage the right to be free of discrimination under Article 14, taken together with those rights. We consider that the Government should take this opportunity to attend to this potential incompatibility in the proposed primary legislation.

103. We therefore recommend that the legislation should include provisions amending the sex discrimination legislation to make it unlawful to discriminate against people in the fields of education, housing and the provision of goods, facilities and services on the ground that they have undergone, are undergoing or plan to undergo sex reassignment.

Rights of third parties

104. Third parties are inevitably affected by a person's decision to acquire a different gender. This section of the Report considers three respects in which the Draft Bill affects the rights of third parties: the parental responsibilities of the person concerned; the effect on property rights; and the rights of third parties whose religious convictions may be affected.

Parental responsibilities and rights

105. Clause 8 of the Draft Bill protects the status of a father or mother of a child after the acquired gender has been legally recognised. ECHR Article 8.1 protects respect for private and de facto family life rather than marriage as a legal status, so the proposals in the Draft Bill would not deprive anyone of the very essence of the right guaranteed by Article 8.

Succession to property, etc

106. A change of gender could affect rights of succession to property, to peerages, dignities and other titles of honour, and to interests under trusts.

107. In relation to property interests, this could affect the right to peaceful enjoyment of one's possessions under Article 1 of Protocol No. 1 to the ECHR. The Draft Bill makes provision for this. First, the interests of testators, settlors and donors of property are protected by providing that recognition of acquired gender would not affect the disposal or devolution of property if an intention that it should not do so is expressed in the will or other instrument by which the property is disposed of or devolves.[35] In the absence of such an expressed intention, the general rule in clause 5(1) would apply: the beneficiary would fall to be treated as having his or her acquired gender, so that (for example) a settlement in favour of 'my sons' would not benefit a son who had obtained a final gender recognition certificate as a male-to-female transsexual.

108. One can imagine circumstances in which this might cause injustice. For example, a bequest by a father with three sons and no daughters to 'each of my sons' could equally well mean 'each of my children', but expresses no intention that a son who acquires a female gender is still to benefit. The Bill caters for this sort of problem, which may arise in unpredictable ways, by allowing a person to apply to the High Court on the ground that he or she is adversely affected by the different disposition or devolution of the property. The High Court would then be allowed to make such order as it considers appropriate if satisfied that it is just to do so.[36]

109. In relation to peerages, dignities and other titles of honour, the Draft Bill provides that their devolution is not to be affected by anybody's change of gender (clause 11). This gives rise to the surprising possibility that one could have a Duke who is to be regarded as female for all legal purposes. But the Department for Constitutional Affairs explained that the purpose was to avoid the possibility that people might decide to change their sex in order to acquire a title. Clause 11 should achieve that aim.

Members of religious groups

110. Members of religious groups may consider that a person remains a man in the eyes of God even after being recognized as being a woman in the eyes of the state (or vice versa). To preserve the religious freedom to refuse to marry a person in his or her acquired gender, the Draft Bill provides that no clergyman is obliged to solemnize the marriage of a person whose gender has become the acquired gender under the Draft Bill, and that no clerk in Holy Orders in the Church of Wales is obliged to permit the marriage of such a person to be solemnized in the church or chapel of which he is the minister.[37]

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32   Case C-13/94, [1996] ICR 795 Back

33   See Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999 No. 1102; Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999, SR 1999 No. 31 Back

34   See e.g. Sex Discrimination Act 1975, s. 2A Back

35   Cl. 10 Back

36   Cl. 13 Back

37   Cl. 7 and Sch. 3, para. 3, inserting a new section 5B in the Marriage Act 1949 Back

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Prepared 20 November 2003