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)

1. Use of Litigation in the UK
to advance trans rights
Christine Burns MBE
Friday 24th September 2010

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. 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. 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. Case 1 – P vs S and
Cornwall 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. 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 for
very similar circumstances and outcome

7. … 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

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. 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. 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. 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. 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. Para 83. The Court is not persuaded therefore that the state of
medical science or scientific knowledge provides any determining
argument as regards the legal recognition of transsexuals.
Para 90. In the twenty first century the right of transsexuals to
personal development and to physical and moral security in the full
sense enjoyed by others in society cannot be regarded as a matter
of controversy requiring the lapse of time to cast clearer light on
the issues involved. In short, the unsatisfactory situation in which
post-operative transsexuals live in an intermediate zone as not
quite one gender or the other is no longer sustainable
Para 93. …the Court finds that the respondent Government can no
longer claim that the matter falls within their margin of appreciation,
save as regards the appropriate means of achieving recognition of the
right protected under the Convention. Since there are no significant
factors of public interest to weigh against the interest of this
individual applicant in obtaining legal recognition of her gender re-
assignment, it reaches the conclusion that the fair balance that is
inherent in the Convention now tilts decisively in favour of the
applicant. There has, accordingly, been a failure to respect her right
to private life in breach of Article 8 of the Convention.

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. 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. But remember…
Changing the law by judicial or legislative
means doesn’t prevent discrimination. The
most the law can do is to provide a remedy
after discrimination has taken place, or to
encourage change. REAL CHANGE requires
social campaigning (and time)