Is He Our Sister? Sex, Gender and Transsexuals under European Law

Andrea Loux

Research output: Contribution to journalArticlepeer-review

Abstract

The question of the legal sex-identity of transsexuals holds fascination for scholars throughout Europe because it highlights the continuing significance in law of distinctions based on sex. A new chapter in the legal saga of transsexualism in Britain has begun with the decision of The Court of Justice of the European Communities (ECJ) in the case P v S [1996] IRLR 347. In that case, the ECJ held that to discriminate against a transsexual on the basis of his or her transsexualism constitutes sex discrimination within the meaning of the Equal Treatment Directive unless the discrimination "can be justified". The question of when an employer may lawfully derogate from the Directive must now be decided by Britain's courts. This Article examines the case of M v Chief Constable, Birmingham Industrial Tribunal Case No. 08964/96 (20/12/96) (unreported), where an employment tribunal held that the police could lawfully derogate from the Directive and refuse to hire a transsexual. It argues that because an English-born transsexual's legal sex is incongruent with his or her gender, English courts must distinguish between the biological category of sex and the social category of gender when evaluating derogations from the Directive. Parts I-III discuss the sex/gender dichotomy and how these categories are implicated in the question of the legal status of English-born transsexuals in domestic and EC law. Part IV examines the IT decision in M v Chief Constable. Part V analyses the question of permissible derogations in EC law as they apply to English-born transsexuals and proposes a model for adopting a sex/gender distinction in English law.
Original languageEnglish
JournalWeb Journal of Current Legal Issues
Issue number3
Publication statusPublished - 1997

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