Homosexuals are individuals who are sexually attracted to another person of the same sex, and transsexuals are people who perceive their gender to be different from their biological sex2. They will often live according to gender or have surgery to change their biological sex.
Willingness to take such drastic and risky steps is caused by strong and consistent feelings that they should have been born the opposite sex. 3 About 5,000 people in the United Kingdom exhibit signs of transsexualism4, with statistics showing 1 out of 1,000 males.According to the MIND report5, a result of researches conducted on the mental well being on homosexuals, mental stress among this group of people are higher than heterosexuals. This can be attributed towards the lethargic development of law concerning these individuals. It becomes an argumentative subject when the rights of homosexuals and transsexuals are brought into context with the UK legal system.
It is uncertain as to whether the law is giving enough protection towards this special group of people or not.The extent of equality for homosexuals and transsexuals is limited by society's lack of acknowledgment towards this group of people and the insufficient recognition by the law. Currently, UK law has provided protection in the form of The Sex Discrimination Act (SDA) 1957, The Sex Discrimination (Gender Reassignment) Regulations 19996, and an upcoming Gender Recognition Bill7. The SDA is to be read together with the 1999 Regulations8, which inserts additional sections into the former and came into force on May 1st, 1999.This is to incorporate the spirit of the European Equal Treatment Directive9, in accordance with the European Court of Justice's judgement of P v.
S and Cornwall County Council10. Both the Act and the Regulations deal with matters of employment, self-employment and vocational training by preventing discrimination in these fields, with the latter dealing specifically with people undergoing, undergone or is going to undergo gender reassignment.Regulation 2A provides that the principal must treat the employer who intends to undergo, is undergoing or has undergone gender reassignment the same way he would treat other persons, including instances where the employee is absent due to gender reassignment procedures11. Regulation 2(3) inserts the definition of "gender reassignment" into the SDA. According to this definition, "gender reassignment" is quoted as ".
.. 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;" Exceptions are provided under Regulation 4 in relation to s. 7 of the SDA and deals specifically with 'Genuine Occupational Qualifications' for transsexuals. These clauses stipulate areas where the Regulation does not apply. An example is where the occupation requires that the employee's sex be a genuine qualification.
Sometimes this renders it difficult for the employer to provide the necessary surroundings for the employee who is about to undergo, is undergoing or has undergone gender reassignment12. Here, the law allows it to be an exception. The Regulations also deal with religious issues under Regulation 5. The rule of non-discrimination no longer applies to employment within an organized religion where limitations are ".
.. imposed to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers. 13 Regulation 6 deals in respect to discrimination concerning goods, facilities or services provided during vocational training. The duties of the Equal Opportunities Commission (whose aim is to promote equality of employment and vocational training opportunity to persons who intend to undergo, are undergoing or have undergone gender reassignment) are extended under Regulation 7 where it also increases the Commission's powers by allowing it to issue Codes of Practice in relation to promotion issues.
Any breach of the Regulations will render the employer liable in the same way they would for discrimination against a person on grounds of sex under the Sex Discrimination Act 1975. The The Sex Discrimination (Gender Reassignment) Regulations 1999 has been subject to examination in various ways. This can be brought down to assessing the Regulations in terms of advantages and disadvantages. The first advantage is that the definition of 'gender reassignment'14 is wide enough to not require any one treatment in particular in order to cover a person (transsexual).Also the Regulation covers people who not merely have conveyed their intentions, are undergoing or has undergone gender reassignment, but also those who have no intentions of undergoing surgery by relying on hormones.
Another advantage is that, the Regulation puts down in writing, matters concerning 'Genuine Occupational Qualifications' (GOQ) for transsexuals15. It is up to the employer to prove that he or she has taken reasonable steps. Inherent disadvantages identified within the Regulation seem to be reasons enough for to lobby for it to stop from proceeding any further, unless it is significantly amended.Disadvantages identified revolve around GOQ for transsexuals.
It can be seen that Regulation 4 has restricted chances of employment of transsexuals in certain occupations by providing for exceptions where discrimination protection is not given. An example of an instance is the that" ... involves holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers"16, which proves to be a disadvantage because employers might prevent transsexuals from holding such jobs by using relevant statutory provisions to stop them from being employed.
Another instance would involve requiring the holder of the job to live or do his or her work in private homes under situations where householders might reasonably object to the level of physical or social contact his or her are likely to have with them, or the possibility of knowing intimate details of their life by him or her. 17 This would bring about the possibility of paranoia and abuse by arguing that transsexuals should not be employed in case of such instances occurring.Also, where the holder of the job which requires 'living in' is a transsexual, reasonable objection could be raised to preserve privacy and decency. The onus is on the employer to show that it is unreasonable to provide suitable accommodation or alternative arrangements for him or her. 18 This part deals only with people intending to undergo or are in the process of undergoing gender reassignment.
However no definition has been given to mark the ending of the process. Thus, he or she could be prevented from holding the job for an uncertain period.As such, the The Sex Discrimination (Gender Reassignment) Regulations 1999, after being scrutinized, may not be as beneficial as it seems. Since the European Convention of Human Rights became part of British domestic law, the legal position in the United Kingdom is being transformed. At first, the Convention seemed to have little or no effect but it is becoming more obvious that its influence is going to be greater than expected.
Article 8 of the Convention, guarantees respect for private and family life, has been held to confer a right on an individual to assert his sexual identity. In the case of Mendoza v.Ghaidan [2002]19, Lord Justice Buxton states that "Parliament having swallowed the camel of including unmarried partners within the protection given to married couples, it is not for the this court to strain at the gnat of including such partners who are of the same sex as each other. " Homosexual partnerships and the 'marriage' of transsexuals should be recognised by law and afforded the same rights as traditional marriages.
20 Recently, there have also been substantial developments, spurred by the European Convention, towards equality for the 5,000-strong minority of transsexuals in the UK.Following decisions of the European Court which found the UK government's policy on transsexuals to breach Article 8 and Article 12, the right to marry, the government has committed itself to introducing a Bill to formally recognise a transsexual's acquired gender including the right to marry in the acquired gender. An upcoming legislative after The Sex Discrimination (Gender Reassignment) Regulations 1999, is the Gender Recognition Bill21 to be cited as the Gender Recognition Act 2003. It deals with the applications for gender recognition certificates.
Requirements in order to apply for the aforesaid certificates are listed. For example, applicants must be of 18 years and above. Evidence is then required to proof that the applicant is subject to gender dysphoria. This comes in the form of a report given by a medical practitioner or chartered psychologist, expert in the relevant field.
The applicant must also make a statutory declaration that the required conditions are met and to announce his marital status. The Gender Recognition Panel issues certificates.After acquiring it, the acquired gender of the person becomes for all purposes, a full gender. The Bill addresses issues such as to marriages, parenthood, succession to property and peerages, further amendments to the Sex Discrimination Act 1975 and so on.
Other than relevant legislation, further evidence should be given to illustrate the extent of equality of homosexuals and transsexuals in UK. The case of A v. West Yorkshire Police22, which is mentioned beforehand, relates to Regulation 4 of The Sex Discrimination (Gender Reassignment) Regulations 1999.This case is a proof to society at large that there are no limits to transsexuals' abilities in any occupation.
The plaintiff was a woman who had undergone gender reassignment and later applied to be constable. The application was allowed initially, but was not in later stages as the defendants considered possibility of hardship whilst conducting searches beyond outer clothing as it was required that officers and suspects to be of the same sex. The plaintiff's birth certificate still showed her gender as male.The case was decided in favour of the plaintiff as the employment tribunal held that if the defendant's case was allowed, then no transsexual would be able to be employed in the police force, thus going against the right to equal treatment. Other changes in the law include recognition of the criminal law of rape that men could be charged with raping another person who is legally male.
However, certain legal terms relating to rape needs to be changed in order to include trans people.Transsexuals are also able to assert their reassigned gender through documents other than birth certificates, such as driving licenses23. This issue is in relation to the Gender Recognition Bill. A problem yet to be solved is which prison should a transsexual be sent to when he or she commits a crime? Laws concerning marriage is yet to be changed as transsexuals are not protected under divorce laws, let alone foster or adopt children as any marriage of transsexual couples are not legally recognized24.The UK legal system has started to recognize that a certain group of people, that is, the homosexuals and transsexuals need protection in the form of legislation.
So far, legislation has been provided but, whilst providing undeniable benefits, the inherent flaws do not guarantee full protection. "Whilst the recent judicial rulings in both jurisdictions and plans for legislative reform in the UK are to be welcomed, they constitute only a gradual and piecemeal solution to a problem. " 25
