The term ‘transgender’ refers to individuals whose gender identity does not correspond to the gender with which they were born. They may seek to align their physical attributes with their gender identity. This process is called gender reassignment and can involve elements of hormonal, surgical or psychological care. This treatment is usually referred to as gender reassignment treatment. An individual who intends to, is undergoing or has undergone a process of gender reassignment has the right to protection from workplace and employment-related discrimination.
The establishment of a right to such protection was determined in the case of P v S and Cornwall County Council (Case C-13/94) when the European Court of Justice (ECJ) held that the scope of the 1976 Council Directive 76/207/EEC 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 ‘cannot be confined simply to discrimination based on the fact that a person is of one or other sex.’ The court was clear that the protection extends to discrimination arising from gender reassignment. The protection was further clarified in the case of KB v NHS Pension Agency (Case C-117/01) when the ECJ held that legislation preventing a person who has undergone gender reassignment treatment from marrying, a requirement for entitlement to a widow or widower’s occupational pension, was in breach of Article 141 of the EC Treaty (now Article 157 of the Treaty on the Functioning of the European Union), which guarantees the right to equal pay.
While Council Directive 76/207/EEC made no specific reference to gender reassignment and to the rights of transgender people, Council Directive 2006/54/EC does make specific reference to the issue by stating in its preamble that the principle of equal treatment ‘applies to discrimination arising from the gender reassignment of a person.’ The rulings of the ECJ and the European Court of Human Rights (ECHR), together with the effect of Council Directive 2006/54/EC, make it clear that equal opportunities and equality of treatment are extended from the period in which an individual intends to undergo gender reassignment and continues thereafter in any case where discrimination is encountered on the grounds of the person’s sex. This also means that workplace benefits that are differentiated on gender grounds must be applied to the individual as is appropriate to their reassigned gender.
The 2004 Joint Council and Commission Statement regarding the application of Article 3 of Council Directive 2004/114/EC to transsexuals pointed to the fact that in light of the jurisprudence of the ECJ in the case of P v S and Cornwall County Council, Article 3 may include discrimination arising from the gender reassignment of a person.
The adoption of Council Directive 2006/54/EC encouraged the social partners to address transgender issues within the general framework of their work on the promotion of non-discrimination and equality of treatment. The European Trade Union Confederation (ETUC), in a memorandum dated 16 June 2006, condemned discrimination based on sexual orientation and committed its support ‘for the rights of all citizens’ including transgender communities.
Employer organisations BusinessEurope and UEAPME welcomed the establishment of the 2007 Year of Equal Opportunities for All and acknowledged the added value of diversity in all the forms identified in the 2006 directive, with UEAPME calling on companies to introduce diversity policies in recruitment and employment practices.