The Gender Recast Directive – Implementation Guidelines

March 10, 2010

ILGA-Europe has published Transgender People and the Gender Recast Directive (direct link to PDF download) 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.

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