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Awarded to Dr Stephen Whittle of Manchester Metropolitan University
TRANSGENDER RIGHTS: THE EUROPEAN COURT OF HUMAN RIGHTS AND NEW IDENTITY POLITICS FOR A NEW AGE.
Synopsis Prepared by Dr Whittle
In the past, legal activism in the area of Transgender and Transsexual Rights has tended to concentrate on ‘quality of life’ issues such as the transsexual’s right to birth certificate change, the right to marry and the medico-legal issues of treatment and surgery. Of recent years, the issues of concern have changed within the new community, the emphasis on birth certificates and marriage (which are to do with the further privacy of ‘passing’) giving way to concerns about the right to personal physical safety, about the right to keep a job regardless of a transgendered status and resultant lifestyle, about the right to be treated equally before the law particularly in the area of relationship rights and the right to medical treatment (including reassignment) ,to all of which ‘passing’ should be irrelevant.
The 1990s cases before the European Courts have clearly illustrated some of these trends, with cases concerning employment rights , parenting , the right not to face arbitrary discrimination in areas such as cross border immigration, marriage status, employment regulation and the right not to have to disclose medical treatment except where absolutely necessary . The essay gives an overview of previous claims to the ECHR by transsexual people, and analyses the reasons for the success and failures of these.
In particular the essay considers the effects of the organizational movements within the trans community that have taken place over the last ten years and which have allowed an acknowledgement of the political and social diversity within the community. This has, in turn, enabled a wide-ranging set of common sites of oppression to be identified and to be acted or campaigned upon.
The essay concludes by considering one of the more recent applications to the European Commission on Human Rights, that of Roetzheim v Germany and argues that it sums up the essence of the new campaign issues surrounding gender identity rights.
Roetzheim’s claims before the Commission closely mirror those made in the International Bill of Gender Rights wherein fundamental human and civil rights are articulated from a gender perspective. The rights claimed are not be viewed as special rights applicable to a particular interest group, but are to be regarded as universal rights both claimable and exerciseable by any and every human being. These range from the right to define and have free expression of gender identity for one’s self, to the right to conceive, bear or adopt children, to nurture and have custody of them regardless of a self-defined gender identity or the expression of such identity.
These rights are both transformative and embedded in notions of personal liberty and free expression. They provide a framework for the claims of the new trans community and as such are increasingly being seen as the paradigms that inform the legal battles the community is undertaking. As yet they may be seen as being too revolutionary for justice systems yet they are simple truisms with which it is hard to argue. For example; ‘the right to train and to pursue an occupation … nor to be denied … employment … or just compensation by virtue of chromosomal sex, genitalia, assigned birth sex, or initial gender role’ reflects what we might see as essential interpretations of the Equal Treatment Directive of the European Community, or the Sex Discrimination Act. Yet for trans people those rights have to be fought for and clearly articulated as was to happen in P v S and Cornwall County Council in the European Court of Justice.
The essay argues that it can only be a matter of time before arbitrary and unfounded discrimination of any kind on the grounds of gender identity and gender expression is outlawed. This is the new agenda for the new millennium which the re-organised, newly informed and highly politicised trans community is determined to make happen. They have not flinched as yet from the battle as they are extremely determined to win the war against gender identity discrimination, Increasingly, they are using the courts and the tools of the political lobby to ensure that their issues and claims are heard and heeded.
1.) P v S and Cornwall County Council,  ERLR 347.
2.) X,Y and Z v UK Government  Application No. 2 1830/93 Ed-JR.
3.) Sheffield v lix Govt  Application No. 22985/93 ECHR; Horsham v UK. Government  Application No. 23390/94 ECHR.
4.) Self Help groups were the earliest types of trans groups often divided into specific ‘camps’ such as heterosexual transvestite, male to female transsexual, female to male transsexual etc. In these groups excellent knowledge and expertise of particular issues and problems faced by members was developed. These groups still participate in the main educational thrusts of trans and other people. They were also to be instrumental in the development of the the Direct Action groups and The Political Lobbying groups. Direct Action groups such as ‘Transsexual Menace’ are instrumental in trans people and their loved ones getting over one very clear message: we are your neighbours, your friends, your co-workers and keeping trans matters alive and in the public domain, using quick response mechanisms to ensure that immediate direct, and public, action is taken in response to specific events.
The Political Lobbying groups are the politically wise face of the community. They are at the forefront of organising and co-ordinating political lobbying such as the ‘Days on the Hill’ which GenderPac and ITA have organised in Washington and the Downing Street Lobby in London organised by Press For Change in October 1997. They also co-ordinate legal challenges at every level and both in the United Kingdom and America and have positively promoted transgender and transsexual claims through the courts.
5.) Roetzheim v Germany  Application No. 31177/96 ECHR.
6.) ICTLEP, ‘Proceedings from the Fourth International Conference on Transgender Law and Employment Policy’, 1995, Houston: ICTLEP: vin-xi
7.) P v S and Cornwall County Council, [19961 IIRLR 347.