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The applicant, P, was a manager of an educational unit operated by Cornwall County Council. In April 1992, P announced that she would undergo gender transition and notified S, the chief executive and financial director of the unit. S informed the governors of the unit. In September 1992, P was dismissed and given three months’ notice. The applicant complained to the Industrial Tribunal on the ground that she had been the victim of sex discrimination. The Industrial Tribunal found that such a situation was not covered by the Sex Discrimination Act 1975. The tribunal was uncertain whether the situation fell within 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. The Industrial Tribunal decided to stay proceedings and refer the following questions to the European Court of Justice for a preliminary ruling:
- 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?
- 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.’
The court found that the scope Directive 27/207/EEC should not be confined to discrimination based on the fact that a person is of one sex or other sex. It stated that the purpose of the right is to ‘safeguard’ and the scope of the directive applied to discrimination arising from gender identity.
The court continued that to tolerate such discrimination would be tantamount ‘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.’
Dismissal of P was therefore contrary to Article 5(1) of Directive 27/207/EEC and was not justified under Article 2(2).
Considering the reply to both questions, the court advised to the Industrial Tribunal that the directive precluded dismissal of a transgender person for a reason related to a gender identity.
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