High-profile court cases have emphasised the plight of transsexual people. Nigel Hanson looks at whether legislation to improve their rights goes far enough




The legal rights of transsexual people have been transformed in a generation. Thirty-three years after Mr Justice Ormrod pondered the concept of capacity to marry in Corbett v Corbett [1971] P 83 and ruled that a person’s sex was legally fixed at birth, Parliament is putting the finishing touches to a Bill to give gender-reassigned people full recognition in their new gender.



Those able to satisfy a proposed gender recognition panel that they have or have had ‘gender dysphoria’ – a feeling of unhappiness relating to their sex – and have lived in their acquired gender for two years, would be eligible for a certificate confirming their status and, hence, rights.



They would be able to marry in their acquired gender; their parenthood and inheritance rights would, expressly, be unaffected; and privacy would be protected by a prohibition on disclosure of sensitive information.



The pace of change has increased in tandem with medical advances in hormone therapy and reconstructive surgery.



Indeed, the planned legislative reform comes after a series of high-profile cases tackling illegal discrimination against transsexual people in employment, family and pensions law.



Earlier this month, in A v Chief Constable of West Yorkshire Police [2004] UKHL 21, the House of Lords gave judgment in favour of a post-operative male-to-female transsexual job applicant, who had been refused employment as a police constable on the basis that she would be unable to conduct intimate searches on either men or women suspects.



Reviewing European law, including article 2(1) of the European Equal Treatment Directive, which prohibits any ‘discrimination whatsoever on grounds of sex either directly or indirectly’, Lord Bingham said no one could reasonably object to such a search.



A was backed by the Equal Opportunities Commission. Its chairwoman, Julie Mellor, said: ‘This ruling makes it crystal clear that employers must treat transsexual people applying for a job in line with the sex in which they live.



‘The thousands of transsexual people who live in Britain today need to be able to get on with their lives without constantly battling discrimination. That includes not having their range of job opportunities restricted as a result of undergoing gender reassignment.’



Domestic law is likely to get its face-lift soon – the Gender Recognition Bill was passed by the House of Lords in February and is back in the Commons for report stage and third reading on a date to be announced.



But the road to equal treatment for transsexual people in all areas of life has been tortuous.



The UK has found itself criticised by the European Court of Human Rights and the European Court of Justice for dragging its feet on reform and infringing individuals’ rights under article 8 (right to respect for private life) and article 12 (right to marry) of the European Convention on Human Rights.



And although the Law Lords have now, to quote Lord Bingham, acknowledged ‘the part which the convention has played in shaping the current European understanding of what fundamental human rights mean and require’, reform remains controversial, particularly for religious groups.



Christian group the Evangelical Alliance, for example, claims the Bill is ‘intellectually based on absurdities’. Its public affairs manager, Don Horrocks, refers inquiring journalists to the group’s Web site, which states: ‘There is no evidence to show that sex can be determined in any way other than biologically.



‘However, the government has simply decided that to afford transsexual people human rights (to be approved of in itself), it must legislate to create artificially the fiction of a biological man (for example) becoming a "legal" woman, with the "legal" gender taking precedence over the true biological birth sex.’



Against this stance, pressure groups such as Brighton-based charity The Gender Trust and Press for Change, which was co-founded by Manchester Metropolitan University legal academic Stephen Whittle, have used test cases and the Internet to campaign for recognition.



Mr Whittle, who underwent female-to-male gender reassignment in 1975, says: ‘The situation now is so much better than it used to be. We used the Internet to trace and support people who could bring cases, and benefited from pro bono work by lawyers such as David Burgess and Nicholas Blake.



‘We actually lost more than we won, but if we hadn’t campaigned and realised that some of us had to take a risk, we weren’t going to get anywhere.’



He says reform is difficult to secure in this country if you are in a voting minority, but he nevertheless describes anti-discrimination initiatives under New Labour as ‘astonishingly good’.



Angela Clayton, a company physicist and chairwoman of The Gender Trust, says the social climate has been ‘completely transformed’ in recent years. When she first experienced gender dysphoria in 1978, a GP warned her she would be ‘institutionalised’ if she refused to toe the line.



‘The level of understanding is just beyond belief compared to 25 years ago,’ she says. ‘We’ve gone from being victims of ridicule, if not outright abuse, to a situation where for many it’s not really a large issue today.’



She describes the Bill as ‘fabulous’ for most transsexual people but contends that it is of fairly narrow import, leaving some generalised discrimination flourishing below the radar, with some pub landlords, for example, still refusing to let transsexual people use their toilets.



She is also concerned that there should be rigorous safeguards to prevent confidential information being disclosed through innovations such as ID cards.



Stephen Whittle’s main criticism of the Bill is that married couples, typically elderly, who have stayed together as friends even though one has undergone gender reassignment, will be dissuaded from applying for a recognition certificate because it would lead to their life-long marriage being annulled because of the ban on same-sex marriages.



Gender dysphoria is estimated to affect about 1 in 10,000 people. Mr Whittle estimates that some 5,000 people in the UK could qualify for gender recognition certificates under the new legislation.



But while transsexual people welcome legal reform, experts say gender and sexuality are so complex that the law in general may be inherently unsuited to dealing with them.



Lynne Segal, professor of psychology and gender studies at Birkbeck College in London, says it is impossible to box gender into clear-cut categories of masculine and feminine. In her opinion, gender is a fluid concept that poses ‘perhaps a challenge too far for the law’.



The issue continues to generate headlines, and the controversy seems unlikely to disappear overnight. Earlier this month, Canadian David Reimer, who underwent reconstructive surgery to be brought up as a girl after a botched circumcision as a boy in 1966, committed suicide.



As an adult, he had undergone phalloplasty surgery to become male again. His twin brother, Brian, killed himself two years ago with an over-dose of drugs he was taking for schizophrenia.



A Sunday newspaper recently reported that a male-to-female transsexual person from the London area was trying to have a child with her gay partner, using sperm frozen before reassignment surgery.



The couple had travelled to the US for their embryos to be screened to ensure the baby was also female, provoking religious groups to brand it a ‘hazardous social experiment’ and ‘gross distortion of human relationships’.



This is an area where the law will always be catching up with the reality of life for many transsexual people, and the issues thrown up by medical advances. But for many, the law is making rapid strides to assimilating them into the community and is a force for good.



Nigel Hanson is a freelance journalist




The long fight against sexual discrimination



Nigel Hanson recounts how the courts have viewed gender recognition over time



Baroness Hale of Richmond gives a useful overview of relevant case law in her speech in A’s case.



It showed how Mr Justice Ormrod’s fixed approach to gender in Corbett is seen to have had a lasting effect, even though the Sex Discrimination Act 1975, passed in anticipation of the Equal Treatment Directive, prohibited sex discrimination. The Court of Appeal in R v Tan [1983] QB 1053, for example, readily applied Corbett to gender-specific criminal offences.



The European Commission on Human Rights took a progressive view as early as 1979 in D Van Oosterwijk v Belgium (Applic No 7654/76), in finding that the refusal of Belgium to enable registers of civil status to reflect lawful sex changes violated article 8 of the convention. But the European Court of Human Rights decided in 1986 that the UK’s refusal to issue a new birth certificate to a post-operative transsexual was not a breach of article 8 (Rees v UK (1986) 9EHRR 56).



The court took the same view in Cossey v UK (1990) 13 EHRR, but only by a majority of ten to 8, with powerful dissent from Judge Martens. He said: ‘Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality… In doing so, he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to.’



P v S and Cornwall County Council (1996) ECR 1-2143 was a landmark decision that led to the Sex Discrimination (Gender Reassignment) Regulations 1999. The applicant, backed by Press for Change, complained of sex discrimination after being dismissed from her job as a manager in an educational establishment because she was undergoing male-to-female gender reassignment treatment and surgery. The European Court of Justice said tolerating such discrimination would be tantamount to a failure to respect the dignity and freedom to which she was entitled.



Members states were allowed some leeway in interpretation, known as the ‘margin of appreciation’. But the writing was on the wall and by 1998, in the words of Lady Hale, the UK was said to be alone in Europe in ‘allowing (and even funding) gender reassignment treatment and surgery but failing to recognise its results’.



In 2002, there was a further wake-up call in Goodwin v UK (2002) 35 EHRR 18. A male-to-female claimant sued over having to pay national insurance contributions until she was 65, not 60, like other women. She was also paying car insurance premiums that were too high and was unable to get a free bus pass at 60. She complained of taunts at work and was unable to pursue a claim for sexual harassment in an employment tribunal because she was still considered in law to be a man. The European Court of Human Rights, sitting as a Grand Chamber, ruled unanimously that the UK was in breach of articles 8 and 12.



Then came the marriage case of Bellinger v Bellinger [2003] 2 AC 467, in which Corbett was affirmed on the basis that legislative, not piecemeal, reform was desirable. Lord Nicholls said: ‘Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment. The anatomical appearance of the body can be substantially altered by forms of treatment which are permissible as well as possible.



‘It is in these changed circumstances that society is now facing the question of how far it is prepared to go to alleviate the plight of the small minority of people who suffer from this medical condition.’



He added: ‘The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.’



Earlier this year, pension rights of transsexuals were clarified in KB v NHS Pensions Agency [2004] IRLR 240. An NHS employee successfully claimed that the denial of an NHS widower’s pension to the female-to-male transsexual with whom she had celebrated what would have been a marriage had it been possible in domestic law, amounted to sex discrimination contrary to the Equal Pay Directive.




Transcending pride and prejudice in the legal profession


Struggling to assert sexuality within society can be fraught. Nigel Hanson hears a range of experiences



Stephen Whittle, 49



Reader in law at Manchester Metropolitan University (MMU), teaches contemporary legal studies.



Underwent female-to-male gender reassignment in 1975 and has since campaigned tirelessly for transsexual people’s rights, receiving a human rights award from Liberty and Justice in 2002.



His partner, Sarah Rutherford, has given birth to four daughters by sperm donation. His eldest daughter Eleanor, 11, recently addressed an international conference on her experience of living in a non-traditional family.



In the 1970s and 1980s, Mr Whittle says he endured ‘terrible job experiences’. He worked mainly in project and financial management, but was forced out by prejudice.



In one dispute with an employer, he was told that if he persisted in his complaint, his personal history would be passed to a newspaper.



‘I realised I could never say I was going to keep a job,’ he says.



Later, he project-managed small construction jobs, retaining independence by being self-employed.



At the age of 30, he enrolled for a part-time law degree at MMU, graduating five years later before completing a masters and PhD. He has found academia a more tolerant environment. Campaigning through Press for Change since 1992, he has raised the profile of transsexual issues in the media, particularly women’s magazines.



He lobbied Alex Carlisle QC to launch a private members Bill on gender reassignment in 1994 – the first time it was aired in Parliament.



Jan Doerfel, 31
Pupil barrister at 8 King’s Bench Walk, London



LLM in international human rights law at Essex University. Worked for three years with UN Special Rapporteur on Torture, in Geneva, before founding a non-governmental organisation, the International Research Centre on Social Minorities, in 2003, which lobbies UN bodies to pay greater attention to human rights violations perpetrated on grounds of gender identity and sexual orientation.



Mr Doerfel, a female-to-male transsexual lawyer, hopes to specialise in the area of discrimination on grounds of gender identity and sexual orientation.



He says: ‘There are still quite a few areas of discrimination over transsexuality. I don’t think it will be the end of the matter when the Gender Recognition Bill goes through – the issues won’t stop with the legislation; there will still be questions of application and challenges.’ Much remains to be done internationally, he adds: ‘Transsexual and transgender people continue to be subjected to serious human rights violations, including physical attacks and extra-judicial killings in many parts of the world for "transgressing" gender barriers.’



Anonymous solicitor



The experience of one male-to-female transsexual solicitor, who has asked not to be named, suggests discrimination may not be a major problem within the legal profession.



She qualified in 1978 and, after specialising in property, became an equity partner with a medium-sized London firm.







She ‘transitioned’ in 1997, winning support from partners after informing them of the situation in a boardroom meeting. A tabloid newspaper seemed determined to ‘out’ her at the time, forcing her to give an interview, but her fellow partners wanted only an assurance that business would not be affected.