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
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))
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.
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
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.
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.
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.
