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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