Round table „Upholding rights of transgender people in Europe – obligations of member states under the current European legislative framework” 21 November 2011 Ankara, Turkey

Areas of inequality (I) Matters which are usually not affected by gender- related differences, but in which trans people are systematically treated less favourably than non- trans.  access to medical and social services  employment  social activities  housing  parental responsibilities including adoption/ fostering

Areas of inequality (II) Matters which hinge on legally defined sex.  marriage  life insurance  state pensions  gender specific offences  imprisonment

Areas of inequality (III) Areas where trans people must rely on the goodwill of others to avoid discrimination.  inheritance  sport  education  occupational pensions  police searches  gender specific victim support

Areas of inequality (IV) Instances where access to equal treatment relies on recognition of marital / partnership status  income related benefits  survivor pensions  inheritance tax  next of kin issues incl. parental rights  criminal injuries  workplace injuries

Further reading Document Link

Case Law European Court of Human Rights

X, Y, Z v. the UK (1997) Relationship between a trans man and his female partner’s biological child = family life (Art. 8) Kara v. the UK (1998) Cross-dressing (in the work place) protected (Art. 8)

European Court of Human Rights Van Kück v. Germany (2003) Gender identity is „one of the most basic essentials of self-determination” = protected under Art. 8 “Difference of treatment on the ground of sex” applies also to post-operative trans people. Burden of proof for the necessity of gender reassignment treatment must not be placed on the trans person. Courts must not oppose medical experts recommendation.

European Court of Human Rights Grant v. the UK (2006) Pension rights as a woman (lower retirement age than the one applicable to men) Schlumpf v. Switzerland (2009) Mechanical application of a minimal time of two years seeing a psychiatrist before health insurances are obliged to cover gender reassignment surgery violates Art. 8. P.V. v. Spain (2010) “Transsexuality” is a stand-alone ground under Art. 14

Recommendation of Committee of Ministers on combating discrimination on grounds of sexual orientation and gender identity 2010(5)

The Recommendation in a nutshell adopted 2010 „soft law“, but ALL Council of Europe members signed up to it! Monitoring 2012; review on progress: 03/2013 ILGA-Europe  specific support & toolkitspecific support & toolkit Trans-inclusive and specific aspects

No discrimination on grounds of gender identity in fields of: 9./10. Freedom of association: forming and running of organizations, public funding, Freedom of expression and peaceful assembly: information, protection of peaceful demonstrations 26./27. Parental responsibilities, guardianship and adoption

No discrimination on grounds of gender identity in fields of: 29. employment and occupation in the public as well as in the private sector incl. access to employment and promotion, dismissals, pay and other working conditions, including the prevention, combating and punishment of harassment and other forms of victimisation 30. employment: right to privacy of transgender individuals, esp. application process

31./32. education: safety, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment, information provision, protection and support for trans students No discrimination on grounds of gender identity in fields of:

33. health: highest attainable standard of health 35. Member states should take appropriate measures to ensure that transgender persons have effective access to appropriate gender reassignment services, including psychological, endocrinological and surgical expertise in the field of transgender health care, without being subject to unreasonable requirements; no person should be subjected to gender reassignment procedures without his or her consent.

36.Member states should take appropriate legislative and other measures to ensure that any decisions limiting the costs covered by health insurance for gender reassignment procedures should be lawful, objective and proportionate. No discrimination on grounds of gender identity in fields of:

Case Law European Court of Justice

EU Case Law P. v. S. and Cornwall County Council Case C-13/94 (1996) Dismissal of a transsexual employee for a reason relative to gender-reassignment surgery is sex discrimination, contrary to the principle of equal treatment enshrined which all EU Member States are bound to implement. K.B. and National Health Service Pensions Agency, Secretary of State for Health Case C- 117/01 (2004) States have to guarantee the right to heterosexual marriage after gender recognition. Applicant was the partner of a trans person Not awarding a trans person’s partner a widower’s pension by hindering the couple to get married (precondition to widower’s pension) is an inequality of treatment in conflict with EU law. Sarah Margaret Richards v Secretary of State for Work and Pensions Case C-423/04 (2006) Directive 79/7/EEC precludes a law which bars a male-to-female transsexual from benefitting from a pension at the age at which women become eligible to collect a pension.

Gender ReCast Directive (2006/54/EC)

The Directive in a nutshell This Directive consolidates (and repeals) a number of separate gender equality Directives and codifies some of the case-law (inc. P v. S). It includes explicit protection against discrimination arising from the ‘gender reassignment’ of a person.  It is not clear whether gender reassignment includes transgender people who are not transsexual and who do not intend to undergo gender reassignment. Had to be implemented by all EU-27 and EEA-3 into national law by 15/08/08.

The Areas Covered Dir 2006/58/EC covers: (a) access to employment, including promotion, and to vocational training; (b) working conditions, including pay; (c) occupational social security schemes.

The Protections Provided Direct discrimination Indirect discrimination Harassment Sexual harassment Pay discrimination Discrimination regarding occupational social security schemes Instruction to discriminate Discrimination related to pregnancy and maternity leave Victimisation Equality Bodies at national level needed to be set up

Impact of the Directive  So far clear reference to ‘gender identity and gender expression’ remains absent in the legislation of most of the EU Member States.  Only 6 EU Member States expressly introduced reference to a ground that is equivalent to ‘gender identity and/or gender expression’ in national gender equality legislation. The European Commission is currently undergoing the 1 st 5-year round of assessment of the implementation of Dir 2006/54/EC.

Patchy Protection

Gender Goods & Services Directive (2004/113/EC)

Gender Goods and Services Directive The Gender Goods and Services Directive provides protection on the grounds of gender in access to goods and services. (education is not covered). The text of the Directive does not make any reference to trans people, it is known that transsexuals are covered through the minutes of the joint Council and Commission meeting (2606 th Meeting).

2606th meeting of the Council of the European Union (EMPLOYMENT, SOCIAL POLICY, HEALTH AND CONSUMER AFFAIRS) 2. Joint Council and Commission Statement re Articles 3 & 5 "Concerning Article 3 and its application to transsexuals, the Council and Commission recall the jurisprudence of the Court of Justice in case C-13/94 P v S and Cornwall County Council, where the Court held that the right not to be discriminated against on grounds of sex cannot be confined simply to discrimination based on the fact that a person is of one or other sex, and may include discrimination arising from the gender reassignment of a person.”

Good Practices

Good practice – legislation (1) Sweden’s Discrimination Act (SFS 2008:567) and the Act Concerning the Equality Ombudsman (SFS 2008:566) cover the grounds of ‘sex, transgender identity and expression’ amongst other grounds.2008:567 Definition: 1. Sex: that someone is a woman or a man. 2. Transgender identity or expression: that someone does not identify herself or himself as a woman or a man or expresses by their manner of dressing or in some other way that they belong to another sex.

Good practice – legislation (2) The UK’s Equality Act 2010 (Art 16) clearly protects trans people during gender reassignmentEquality Act 2010  16. Gender reassignment discrimination: cases of absence from work (1)This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of gender reassignment. (2) A person (A) discriminates against a transsexual person (B) if, in relation to an absence of B's that is because of gender reassignment, A treats B less favourably than A would treat B if— (a)B's absence was because of sickness or injury, or (b)B's absence was for some other reason and it is not reasonable for B to be treated less favourably. (3) A person's absence is because of gender reassignment if it is because the person is proposing to undergo, is undergoing or has undergone the process (or part of the process) mentioned in section 7(1).

Case-Studies

...and now it is your turn! 2 working groups discussion of one case in your group (20‘) Bring back 1 comment and 1 question to the planery (10‘)

Case I Harassed and kicked out of Model Railroad Construction Firm After 35 years as employee and 5 years as top manager, Leila Z. comes out as a transsexual woman to her colleagues at Model Railroad Construction Firm at the general assembly. A member of the board and another manager insult her in front of the assembly: “You make me want to puke. You are disgusting me.” Within half a year, management of the firm informs her that “for the sake of the peace within the firm”, she has to leave her position.  Are there discriminatory aspects in this case? If yes, what are they? Which legal tools could be used?

Case II Not fit to change - Fitness company Emma is a healthy, 40 plus trans woman enjoying her job a lot in Budapest, Hungary. Emma has undergone gender reassignment treatment and has been issued identification documents reflecting her female gender identity. To balance her stressful job as a financial consultant she wants to join a gym. She sets a meeting at the local branch of the big fitness chain “maxi fit” to learn about conditions for membership. Upon arrival, Emma asks for the changing facilities. The receptionist at the counter shows her the way to the men’s locker room. Emma kindly requests to be shown the women’s changing facilities. The receptionist refuses and calls for the manager. The manager says that she cannot use the women’s changing facilities as this would create discomfort for and pose a threat to other female customers. Disappointed and frustrated Emma leaves. She complains to the “maxi fit” management and demands to be using the women’s locker rooms. However, she receives the written reply from the fitness company saying that she can only become a member if she agrees not to use the female changing rooms.  Are there discriminatory aspects in this case? If yes, what are they? Which legal tools could be used?