Court rules in favour of sacked transsexual

Date: 02/05/1996

THE European Court of Justice rose to the challenge thrown down by one of its own advocates-general this week by ruling that the EU's equal opportunities directive applied to transsexuals.

The full Court responded to Advocate-General Giuseppe Tesauro's plea for a “courageous” and broad interpretation of the directive by ruling that a British school broke EU law when it sacked a transsexual for having a sex change.

In their landmark judgement, the judges said that the principle of equal treatment for men and women meant that no discrimination whatsoever on the grounds of sex was permitted in the Union.

The verdict is likely to surprise legal purists who claim the EU's equal opportunities directive rules out discrimination between men and women, but does not, for instance, cover discrimination against transsexuals or people with mixed sexual identities.

Tesauro, whose non-binding opinion on the case published earlier this year read more like a sociology paper than a legal document, said the 19-year-old directive needed to be revamped to take account of changing sexual attitudes and habits - an opinion with which the full Court agreed.

P, hired as a man, worked as a manager in the UK school until she was fired in 1992 shortly after announcing her intention to have a sex change. According to P, the school's directors started to treat her badly when they discovered that she was a woman and not a man. But the school claimed that P was sacked because of her decision to have a sex change and not because of her sex.

Tesauro pointed out that had P remained a man, she would probably not have been fired.

He rejected as obsolete “the idea that the law should protect a woman who has suffered discrimination in comparison to a man, or vice versa, but deny that protection to those who are also discriminated against by reason of sex, merely because they fall outside the traditional man/woman classification”.

Following his lead, the judges ruled that the school had failed to respect the dignity and freedom to which EU citizens were entitled and which the court had a duty to safeguard.

Before the case went to the ECJ, an industrial tribunal in Cornwall had already determined that the true reason for P's dismissal was her decision to change sex, but found that English law did not cover such discrimination.

The tribunal then asked the European Court to verify whether or not the EU's directive on equal opportunity for men and women in the workplace extended to P's case.