The use of litigation to advance trans rights

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A presentation given to human rights and LGBT activists from across Europe in London, September 2010. The conference was organised by the International Lesbian and Gay Association (ILGA)

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The use of litigation to advance trans rights

  1. 1. Use of Litigation in the UK to advance trans rights Christine Burns MBE Friday 24th September 2010
  2. 2. About Press for Change• Formed in 1992• “To campaign to achieve equality and human rights for all trans people in the UK through legislation and social change• 7 Vice Presidents• Non-hierarchic, facilitative, approach• No office, no secretariat. A bedroom- based campaign
  3. 3. Trans rights in the UK in the early 1990’s• Unchanged since 1970• Defined by outcome of Corbett v Corbett case (April Ashley) in 1970 and R v Tan 1974• Not affected by Sex Discrimination Act (1975) http://www.pfc.org.uk/node/319
  4. 4. Trans Rights in 1992• Change name YES• Change documents YES• Change birth certificate NO• Marry in assigned gender NO• Employment protection NO• Goods, services, housing NO• Rape / sexual offences NO
  5. 5. Case 1 – P vs S andCornwall County Council• Unfair dismissal on notification of intended transition• Employer believed standard comparator (man vs woman) meant there was no sex discrimination• Employment tribunal sought ECJ ruling on application of Equal Treatment Directive
  6. 6. Case 1 – Key Points• Plaintiff anonymity / reporting restrictions• Novel comparator• Advocate Tesauro’s recommendation (Changing sex is an ‘aspect’ of sex)See also Diane Schroer v Library of Congress forvery similar circumstances and outcome
  7. 7. … to maintain that the unfavourabletreatment 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
  8. 8. Case 1 – Outcome• Immediate EC-wide effect• UK Government amended SDA in 1999 (but note special exceptions)• Forced employers to address transition rather than getting rid of the ‘problem’• 11 years later, still no evidence of detriment to society• Hasn’t eliminated discrimination
  9. 9. Case 2 – X, Y & Z vs UK• Legal parenthood• Pursuing the right accorded to non- married cis-gender male partners to place their name on birth certificate of female partner’s children• Case framed around the child’s rights
  10. 10. Case 2 – Outcome• Lost, but… ECHR recognised the existence of ‘family life’ X, Y & Z v UK held that in determining whether a relationship can amount to “family life” numerous factors may be relevant; “including whether a couple live together, the length of their relationship and whether they have demonstrated commitment to each other by having children or by any other means.” In this case a transsexual man, his female partner and child constituted “family life” under Article 8 (1997) 24 EHRR 143.
  11. 11. Case 3 – Goodwin & I vs UK • Article 8 and 12 rights (+14) • Two cases heard together • Preceeded by • Rees vs UK (1985) • Cossey vs UK (1990) • Sheffield & Horsham vs UK (1998)
  12. 12. Case 3 – Outcome• Won, unanimously• Court accepted substantial evidence of discrimination resulting from inability to alter birth certificate and be certain of legal status• Decision referred to proportionality• Led to Gender Recognition Act 2004• Not dependent on specific surgeries
  13. 13. Para 83. The Court is not persuaded therefore that the state ofmedical science or scientific knowledge provides any determiningargument as regards the legal recognition of transsexuals.Para 90. In the twenty first century the right of transsexuals topersonal development and to physical and moral security in the fullsense enjoyed by others in society cannot be regarded as a matterof controversy requiring the lapse of time to cast clearer light onthe issues involved. In short, the unsatisfactory situation in whichpost-operative transsexuals live in an intermediate zone as notquite one gender or the other is no longer sustainablePara 93. …the Court finds that the respondent Government can nolonger claim that the matter falls within their margin of appreciation,save as regards the appropriate means of achieving recognition of theright protected under the Convention. Since there are no significantfactors of public interest to weigh against the interest of thisindividual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that isinherent in the Convention now tilts decisively in favour of theapplicant. There has, accordingly, been a failure to respect her rightto private life in breach of Article 8 of the Convention.
  14. 14. Domestic Cases• A vs West Yorkshire Police• A, D & G vs NW Lancs Health Authority• Bellinger v Bellinger For a full list and judgements see: http://www.pfc.org.uk/legal
  15. 15. Trans Rights in 2010• Change name YES• Change documents YES• Change birth certificate YES• Marry in assigned gender YES• Employment protection YES• Goods, services, housing YES• Rape / sexual offences YES
  16. 16. But remember…Changing the law by judicial or legislativemeans doesn’t prevent discrimination. Themost the law can do is to provide a remedyafter discrimination has taken place, or toencourage change. REAL CHANGE requiressocial campaigning (and time)

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