[Blog/Commentary] [UK] The Gender Recast Directive – Implementation Guidelines
Stephanie Stevens
The Gender Recast Directive – Implementation Guidelines
March 10, 2010
ILGA-Europe <http://www.ilga-europe.org/> has published Transgender
People and the Gender Recast Directive (direct link to PDF download
<http://www.ilga-europe.org/europe/publications/reports_and_other_materials/transgender_people_and_the_gender_recast_directive_implementation_guidelines_december_2009>
) which is intended to provide “an introduction to the content of the
Gender Recast Directive and an overview of the jurisprudence of the
European Court of Justice (ECJ), and their relevance for trans people
living in the European Union”.
In 2006, the European Union (EU) adopted a Directive aimed at
consolidating the existing provisions on the implementation of the
principle of equal treatment between men and women and providing a
simplified legal framework on the area of sex discrimination.
This Directive, referred to as the “Gender Recast Directive”,
required all 25 Member States, plus
Bulgaria and Romania which joined the Union in 2007, to implement
its provisions by 15 August 2008. Additionally, it was incorporated
into the European Economic Area Agreement and is thus also applicable
to Iceland, Liechtenstein and Norway.
It’s worth noting that, until the Gender Recast Directive, gender
identity was not explicitly included in EU law – primarily because of
a 1996 European Court of Justice decision that “interpreted the ground
of sex [discrimination] to cover ‘gender reassignment’”.
The landmark case of P. v. S. and Cornwall County Council opened
the door for the inclusion of trans people under in EU gender equality
legislation. In this case, P (the applicant) was a British transsexual
woman who had been dismissed while on sick leave recovering from her
gender reassignment surgery. She claimed that she had been
discriminated against on the ground of sex.
The [European Court of Justice] established that the scope of the
Directive [76/207/EEC], as far as the concept of discrimination on
grounds of sex was concerned, was not limited to discrimination based
on the fact that the individual is of one sex or the other. In fact,
the Court ruled that the Directive also extended to discrimination
based on the sex of the person, thus including the case of dismissal
of a transsexual person related to her/his gender reassignment.
P. v. S. was a landmark case, not only because it represents a
precedent on which the European Court of Justice has constructed solid
jurisprudence, but also because it constitutes the foundation on which
gender reassignment was included in the scope of subsequent gender
equality Directives.
The Gender Recast Directive is the first piece of EU legislation that
includes a direct reference to trans people, although it doesn’t go so
far as to explicitly recognise gender identity as a distinct ground of
anti-discrimination. Whether it can be assumed that its use of the
term gender reassignment is equivalent to gender identity (and vice
versa) is a problem.
A recent legal analysis carried out for the EU Fundamental Rights
Agency may however provide useful insights for the domestic
legislator. In response to whether ‘gender reassignment’ is indeed
equivalent to ‘gender identity’, the study concluded that:
“[T]ransgenderism may not have to be reduced to [a] narrow
understanding, linking it to ‘gender reassignment’ defined as ‘a
process which is undertaken under medical supervision for the purpose
of reassigning a person’s sex by changing physiological or other
characteristics of sex, and includes any part of such a process’.
Whereas transgender people in this narrow understanding do find
themselves in a specific situation due to the operation of gender
reassignment [...] there is no reason not to extend the protection
from discrimination beyond these persons, to cover cross dressers, and
transvestites, people who live permanently in the gender ‘opposite’ to
that on their birth certificate without any medical intervention and
all those people who simply wish to present their gender differently.
It has been recommended that protection from discrimination on grounds
of ‘gender identity’, more generally, should encompass not only
transsexuals (undergoing, intending to undergo, or having undergone a
medical operation resulting in gender reassignment), but also those
other categories.”
If you live in the EU (maybe even if you don’t) it’s worth having a
look at Transgender People and the Gender Recast Directive. It’s
well-presented and very ‘readable’ – but I still come away from it
with the sense that, like every other document related to legislation
around trans matters, it only reinforces what we already knew: the
(comparatively) few legal protections we have are still too few and
far between, still too patchily implemented, still out of reach of
many of us. The fact that we’re still arguing over definitions of
transsexual and transgender in this day and age really doesn’t inspire
confidence; always – always – our identities are subject to
interrogation by numberless cis people before we can even think about
being permitted to access the few meagre laws available to us
(assuming, of course, that we can afford to, or that we can believe we
have a chance of succeeding).
I dunno, I feel like I’m in Ungrateful Angry Trans Harpy mode again
and that I should be thankful that we have even the few laws that we
do. Yet at the same time it all seems so distant, so academic, somehow
– despite the many positive gains that have been made over the years.
But when I hear that, for example, the biggest concern of many cis gay
people is about same sex marriages, while at the same time trans women
have disproportionately high rates of homelessness, poverty,
harassment, discrimination and murder – and nobody gives a fuck –
well, frankly, any ‘victories’ to be found from tying together these
strands of EU law seem hollow, at best.
This entry was posted on March 10, 2010 at 3:19 pm and is filed under
Europe, Gender Recast Directive, Human rights, equality, law and
order, legal recognition.