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         61994J0013
         Judgment of the Court of 30 April 1996.
         P v S and Cornwall County Council.
         Reference for a preliminary ruling: Industrial
         Tribunal, Truro - United Kingdom.
         Equal treatment for men and women - Dismissal of a
         transsexual.
         Case C-13/94.
         European Court reports 1996 Page I-02143
                                                      
      
                  

         Summary
         Parties
         Grounds of the judgment
         Decision on costs
         Operative part of the judgment

         Content of the Court's judgment
         ++++
         Social policy ° Male and female workers ° Access to
         employment and working conditions ° Equal treatment °
         Directive 76/207 ° Dismissal of a transsexual for a
         reason arising from the gender reassignment of the
         person concerned ° Not permissible
         (Council Directive 76/207, Art. 5(1))

         Summary

         In view of the objective pursued by Directive 76/207 on
         the implementation of the principle of equal treatment
         for men and women as regards access to employment,
         vocational training and promotion, and working
         conditions, Article 5(1) of the directive precludes the
         dismissal of a transsexual for a reason arising from the
         gender reassignment of the person concerned. Since the
         right not to be discriminated against on grounds of sex
         constitutes a fundamental human right, the scope of the
         directive cannot be confined simply to discrimination
         based on the fact that a person is of one or other sex. It
         must extend to discrimination arising from gender
         reassignment, which is based, essentially if not
         exclusively, on the sex of the person concerned, since to
         dismiss a person on the ground that he or she intends to
         undergo, or has undergone, gender reassignment is to
         treat him or her unfavourably by comparison with
         persons of the sex to which he or she was deemed to
         belong before that operation.

         Parties

         In Case C-13/94,
         REFERENCE to the Court under Article 177 of the EC
         Treaty by the Industrial Tribunal, Truro (United
         Kingdom), for a preliminary ruling in the proceedings
         pending before that court between
         P.
         and
         S. and Cornwall County Council,
         on the interpretation of Council Directive 76/207/EEC
         of 9 February 1976 on the implementation of the
         principle of equal treatment for men and women as
         regards access to employment, vocational training and
         promotion, and working conditions (OJ 1976 L 39, p.
         40),
         THE COURT,
         composed of: G.C. Rodríguez Iglesias, President, C.N.
         Kakouris, D.A.O. Edward, J.-P. Puissochet and G.
         Hirsch (Presidents of Chambers), G.F. Mancini, F.A.
         Schockweiler, P.J.G. Kapteyn (Rapporteur), J.L.
         Murray, H. Ragnemalm and L. Sevón, Judges,
         Advocate General: G. Tesauro,
         Registrar: L. Hewlett, Administrator,
         after considering the written observations submitted on
         behalf of:
         ° P., by Helena Kennedy QC and Rambert De Mello,
         Barrister, instructed by Tyndallwoods & Millichip,
         Solicitors,
         ° the United Kingdom, by John E. Collins, Assistant
         Treasury Solicitor, acting as Agent, and David Pannick
         QC,
         ° the Commission of the European Communities, by
         Nicholas Khan, of its Legal Service, acting as Agent,
         having regard to the Report for the Hearing,
         after hearing the oral observations of P., represented by
         Madeleine Rees and Vereena Jones, Solicitors, Helena
         Kennedy QC, and Rambert De Mello and Ben
         Emmerson, Barristers; the United Kingdom, represented
         by John E. Collins and David Pannick QC, and the
         Commission, represented by Nicholas Khan, at the
         hearing on 21 March 1995,
         after hearing the Opinion of the Advocate General at the
         sitting on 14 December 1995,
         gives the following
         Judgment

         Grounds of the judgment

         1 By order of 11 January 1994, received at the Court on
         13 January 1994, the Industrial Tribunal, Truro, referred
         to the Court for a preliminary ruling under Article 177 of
         the EC Treaty two questions on the interpretation of
         Council Directive 76/207/EEC of 9 February 1976 on
         the implementation of the principle of equal treatment
         for men and women as regards access to employment,
         vocational training and promotion, and working
         conditions (OJ 1976 L 39, p. 40 hereinafter "the
         directive").
         2 Those questions were raised in proceedings brought by
         P. against S. and Cornwall County Council.
         3 P., the applicant in the main proceedings, used to work
         as a manager in an educational establishment operated at
         the material time by Cornwall County Council
         (hereinafter "the County Council"), the competent
         administrative authority for the area. In early April 1992,
         a year after being taken on, P. informed S., the Director
         of Studies, Chief Executive and Financial Director of the
         establishment, of the intention to undergo gender
         reassignment. This began with a "life test", a period
         during which P. dressed and behaved as a woman,
         followed by surgery to give P. the physical attributes of
         a woman.
         4 At the beginning of September 1992, after undergoing
         minor surgical operations, P. was given three months'
         notice expiring on 31 December 1992. The final surgical
         operation was performed before the dismissal took
         effect, but after P. had been given notice.
         5 P. brought an action against S. and the County Council
         before the Industrial Tribunal on the ground that she had
         been the victim of sex discrimination. S. and the County
         Council maintained that the reason for her dismissal was
         redundancy.
         6 It appears from the order for reference that the true
         reason for the dismissal was P.' s proposal to undergo
         gender reassignment, although there actually was
         redundancy within the establishment.
         7 The Industrial Tribunal found that such a situation was
         not covered by the Sex Discrimination Act 1975,
         inasmuch as it applies only to cases in which a man or
         woman is treated differently because he or she belongs
         to one or the other of the sexes. Under English law, P. is
         still deemed to be male. If P. had been female before her
         gender reassignment, the employer would still have
         dismissed her on account of that operation. However,
         the Industrial Tribunal was uncertain whether that
         situation fell within the scope of the directive.
         8 According to Article 1(1), the purpose of the directive
         is to put into effect in the Member States the principle of
         equal treatment for men and women, in particular as
         regards access to employment, including promotion, and
         to vocational training, and as regards working
         conditions. Article 2(1) of the directive provides that the
         principle of equal treatment means that there is to be "no
         discrimination whatsoever on grounds of sex, either
         directly or indirectly".
         9 Furthermore, the third recital in the preamble to the
         directive states that equal treatment for men and women
         constitutes one of the objectives of the Community, in so
         far as the harmonization of living and working conditions
         while maintaining their improvement is to be furthered.
         10 Considering that there was doubt as to whether the
         scope of the directive is wider than that of the national
         legislation, the Industrial Tribunal decided to stay
         proceedings and refer the following questions to the
         Court for a preliminary ruling:
         "(1) Having regard to the purpose of Directive No
         76/207/EEC which is stated in Article 1 to put into
         effect the principle of equal treatment for men and
         women as regards access to employment etc ... does the
         dismissal of a transsexual for a reason related to a
         gender reassignment constitute a breach of the
         Directive?
         (2) Whether Article 3 of the Directive which refers to
         discrimination on grounds of sex prohibits treatment of
         an employee on the grounds of the employee' s
         transsexual state."
         11 Article 3 of the directive, to which the Industrial
         Tribunal refers, is concerned with application of the
         principle of equal treatment for men and women to
         access to employment.
         12 A dismissal, such as is in issue in the main
         proceedings, must be considered in the light of Article
         5(1) of the directive, which provides that:
         "Application of the principle of equal treatment with
         regard to working conditions, including the conditions
         governing dismissal, means that men and women shall be
         guaranteed the same conditions without discrimination
         on grounds of sex."
         13 The Industrial Tribunal' s two questions, which may
         appropriately be considered together, must therefore be
         construed as asking whether, having regard to the
         purpose of the directive, Article 5(1) precludes dismissal
         of a transsexual for a reason related to his or her gender
         reassignment.
         14 The United Kingdom and the Commission submit that
         to dismiss a person because he or she is a transsexual or
         because he or she has undergone a gender-reassignment
         operation does not constitute sex discrimination for the
         purposes of the directive.
         15 In support of that argument, the United Kingdom
         points out in particular that it appears from the order for
         reference that the employer would also have dismissed
         P. if P. had previously been a woman and had undergone
         an operation to become a man.
         16 The European Court of Human Rights has held that
         "the term 'transsexual' is usually applied to those who,
         whilst belonging physically to one sex, feel convinced
         that they belong to the other; they often seek to achieve
         a more integrated, unambiguous identity by undergoing
         medical treatment and surgical operations to adapt their
         physical characteristics to their psychological nature.
         Transsexuals who have been operated upon thus form a
         fairly well-defined and identifiable group" (judgment of
         17 October 1986, in Rees v United Kingdom, paragraph
         38, Series A, No 106).
         17 The principle of equal treatment "for men and
         women" to which the directive refers in its title,
         preamble and provisions means, as Articles 2(1) and 3(1)
         in particular indicate, that there should be "no
         discrimination whatsoever on grounds of sex".
         18 Thus, the directive is simply the expression, in the
         relevant field, of the principle of equality, which is one
         of the fundamental principles of Community law.
         19 Moreover, as the Court has repeatedly held, the right
         not to be discriminated against on grounds of sex is one
         of the fundamental human rights whose observance the
         Court has a duty to ensure (see, to that effect, Case
         149/77 Defrenne v Sabena [1978] ECR 1365,
         paragraphs 26 and 27, and Joined Cases 75/82 and
         117/82 Razzouk and Beydoun v Commission [1984]
         ECR 1509, paragraph 16).
         20 Accordingly, the scope of the directive cannot be
         confined simply to discrimination based on the fact that
         a person is of one or other sex. In view of its purpose
         and the nature of the rights which it seeks to safeguard,
         the scope of the directive is also such as to apply to
         discrimination arising, as in this case, from the gender
         reassignment of the person concerned.
         21 Such discrimination is based, essentially if not
         exclusively, on the sex of the person concerned. Where
         a person is dismissed on the ground that he or she
         intends to undergo, or has undergone, gender
         reassignment, he or she is treated unfavourably by
         comparison with persons of the sex to which he or she
         was deemed to belong before undergoing gender
         reassignment.
         22 To tolerate such discrimination would be tantamount,
         as regards such a person, to a failure to respect the
         dignity and freedom to which he or she is entitled, and
         which the Court has a duty to safeguard.
         23 Dismissal of such a person must therefore be
         regarded as contrary to Article 5(1) of the directive,
         unless the dismissal could be justified under Article 2(2).
         There is, however, no material before the Court to
         suggest that this was so here.
         24 It follows from the foregoing that the reply to the
         questions referred by the Industrial Tribunal must be
         that, in view of the objective pursued by the directive,
         Article 5(1) of the directive precludes dismissal of a
         transsexual for a reason related to a gender
         reassignment.

         Decision on costs

         Costs
         25 The costs incurred by the United Kingdom and the
         Commission of the European Communities, which have
         submitted observations to the Court, are not recoverable.
         Since these proceedings are, for the parties to the main
         proceedings, a step in the proceedings pending before
         the national court, the decision on costs is a matter for
         that court.

         Operative part of the judgment

         On those grounds,
         THE COURT,
         in answer to the questions referred to it by the Industrial
         Tribunal, Truro, by order of 11 January 1994, hereby
         rules:
         In view of the objective pursued by Council Directive
         76/207/EEC of 9 February 1976 on the implementation
         of the principle of equal treatment for men and women
         as regards access to employment, vocational training and
         promotion, and working conditions, Article 5(1) of the
         directive precludes dismissal of a transsexual for a
         reason related to a gender reassignment.
                                                      
 

 
     
      
 
 

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