Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes

Publication Date01 May 1997
AuthorRobert Wintemute
DOIhttp://doi.org/10.1111/1468-2230.00084
Recognising New Kinds of Direct Sex Discrimination:
Transsexualism, Sexual Orientation and Dress Codes
Robert Wintemute*
Introduction
The concept of direct sex discrimination in EC and UK law has recently been
invoked in three contexts which, at first glance, appear unrelated. In PvS and
Cornwall County Council,
1
a male-to-female transsexual manager succeeded in
persuading the European Court of Justice (ECJ) that her dismissal was direct sex
discrimination under the Equal Treatment Directive (ETD).
2
But in RvMinistry of
Defence, ex p Smith,
3
four gay and lesbian members of the armed forces failed to
convince the Court of Appeal that their dismissals were direct sex discrimination
under the ETD. And in Smith vSafeway plc,
4
a pony-tail-wearing male
delicatessen assistant saw the Court of Appeal reject his direct sex discrimination
argument in upholding his dismissal under the Sex Discrimination Act 1975
(SDA). What do these plaintiffs’ cases have in common? Can each one be analysed
as a case of direct sex discrimination? If not, was Pcorrectly decided? If so, were
Ministry of Defence and Safeway correctly decided? I will begin this article by
outlining a proposed general concept of direct sex discrimination and by
identifying eight potential kinds of direct sex discrimination that seem to fit this
general concept. After a brief discussion of some of the differences among these
eight kinds, I will then focus on the three kinds at issue in P,Ministry of Defence
and Safeway: discrimination against (i) transsexual persons, (ii) gay, lesbian and
bisexual persons, and (iii) persons who violate sex-distinct dress codes.
Before turning to the proposed general concept of direct sex discrimination, I
must explain the terminology I will be using. I will use ‘sex’ to mean ‘biological
sex’ and, more precisely, because the indicia of biological sex (eg chromosomes,
gonads, genitals) may conflict, ‘chromosomal sex,’ ie whether a person is
chromosomally male (XY) or female (XX), or belongs to another chromosomal
category. ‘Sex,’ ‘men’ and ‘women’ will thus mean ‘chromosomal sex,’
‘chromosomal males’ and ‘chromosomal females,’ but the latter more precise
terms will often not be used where those affected by a particular kind of direct sex
discrimination are mainly non-transsexual. I will use ‘psychological sex’
5
to refer
to whether a person, regardless of their chromosomal sex or physical sex
characteristics (gonads, hormones, genitals, presence or absence of breasts or a
uterus or a prostate, physique, body or facial hair, voice pitch, etc), considers
The Modern Law Review Limited 1997 (MLR 60:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.334
*School of Law, King’s College London.
I would like to thank Patricia Carnese, Leo Flynn, Bruce MacDougall, Maleiha Malik and Anya Palmer for
their helpful comments on an earlier draft.
1 Case C-13/94 [1996] ECR I-2143.
2 Council Directive 76/207/EEC, (1976) 19 OJ, No L39, 40.
4 [1996] IRLR 456.
5 I prefer this term to ‘sexual identity’ (which is often a synonym for ‘sexual orientation’) or ‘gender
identity’ (which could be a synonym for ‘gender’ or ‘social sex role’).
themselves to be male, female or a member of another category; ‘change of
physical sex characteristics’
6
to refer to the use of hormones and surgery to bring a
person’s physical sex characteristics into the closest possible conformity with their
psychological sex; and ‘social sex role’ to refer to social expectations as to the
jobs, physical sex characteristics, relationship partners and dress that are
appropriate for a person of a given chromosomal sex. I will generally not use
the word ‘gender,’ because it rarely appears in legislation and because some use it
to mean ‘biological sex’ (to avoid the sense of ‘sex’ as ‘sexual activity’), while
others use it to mean ‘social sex role.’
7
In using the concept of ‘chromosomal sex’ as the basis of a direct sex
discrimination analysis, I do not mean to defend its use as conclusive for the legal
definition of who is a ‘man’ and who is a ‘woman.’ But if a discriminator is
determined to classify a person as male or female and treat them differently on the
basis of that classification, XY and XX chromosomes provide stable markers
which cannot be changed and can be used to determine a person’s biological or
birth sex, in spite of their use of hormones and surgery to change their physical sex
characteristics. ‘Chromosomal sex’ is thus generally a useful concept for a direct
sex discrimination analysis because it represents the immutable core of biological
sex, and graphically illustrates the injustice of direct sex discrimination: telling
individuals that their chromosomes determine how they must live their lives or
what treatment they may receive. In particular, it permits the phenomenon of
transsexualism
8
to be integrated into a direct sex discrimination analysis, which
assumes the existence of two stable categories of ‘male’ and ‘female,’ requires the
classification of the complainant as a member of one category, and requires the
identification of a comparator who is usually (but not always) a member of the
other. Persons whose chromosomes do not fit the XY or XX pattern, or whose birth
genitals do not match their XY or XX chromosomes (intersexual or hermaphrodite
persons), could also be integrated into a direct sex discrimination analysis, but the
recognition of additional categories might be necessary. I do not propose to deal
with such cases here.
What is direct sex discrimination?
Direct sex discrimination exists whenever a person’s chromosomal sex is used
directly or expressly to limit their choices or opportunities in life, or to determine
which benefits they receive or which burdens are imposed upon them. Its purpose
6 Although the term ‘gender reassignment’ is widely used, it covers both change of clothing, name, etc
and change of physical sex characteristics; the latter gives rise to greater analytical difficulties than
the former.
7 cf Mary Anne Case, ‘Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man
in the Law and Feminist Jurisprudence’ (1995) 105 Yale LJ 1, 9–16, which examines true ‘gender
discrimination’ (discrimination against persons of either sex because their dress, behaviour,
mannerisms, voice pitch, qualities, etc are considered, socially, to be feminine or masculine), as
opposed to ‘sex discrimination’ (discrimination against persons because they are, biologically,
female or male).
8 I refer to ‘transsexualism’ and ‘discrimination against transsexual persons’ because it is difficult to
find a universal term, comparable to race, sex or sexual orientation, to describe this ground of
discrimination. Although terms such as ‘gender identity’ or ‘sexual identity’ are used, they are not
obviously confined to the difference between persons whose psychological and physical sexes
coincide (non-transsexual persons), and persons whose psychological and physical sexes do not
coincide, and who may wish to take steps to bring them into conformity (transsexual persons).
May 1997] New Kinds of Direct Sex Discrimination
The Modern Law Review Limited 1997 335

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