The European Union and gender identity Silvan Agius, Policy Director, ILGA-Europe 1 September 2010 What can the EU do for trans equality? Silvan Agius, Policy Director, ILGA-Europe (Trans)Gender Equality? Conference 1 st September 2010, European Parliament

1 Legislation

Legal base Art 19 TFEU [Anti-Discrimination] does not expressly include gender identity Does the EU then have competence to legislate on discrimination that affects trans people?

ECJ ruling The 1996 ECJ decision in P v. S and Cornwall County Council stated that: “[...] Council Directive 76/207/EEC of 9 February 1976 [...] precludes dismissal of a transsexual for a reason related to a gender reassignment.” A milestone decision for the emancipation of trans people within the EU!

P v. S principle The 1996 P v. S decision was taken into account in the adoption of: Dir 2004/113/EC on access to goods and services [2606 th C&C meeting] Dir 2006/54/EC gender ‘recast’ directive (on employment and occupation) [recital 3] However: MSs have no obligation to transpose P v. S into legal texts but only apply its principle The P v. S principle leaves transgender [non-op] people in a legal limbo

Patchy outcome

Leadership Is this not normal since ‘gender identity’ is a ‘new’ ground of anti-discrimination? No! Other ‘more established’ grounds were equally patchy before Art 13 of the Amsterdam Treaty and the 2000 Directives. It is therefore, important for the EC to take similar leadership for the grounds of ‘gender identity and gender expression’.

How? We need to raise ‘gender identity and gender expression’ to the same level of other ‘sex’ sub-grounds. For example: Art 4 of Dir 2004/113/EC states: 1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that (a) there shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity;

How? We need to raise ‘gender identity and gender expression’ to the same level of other ‘sex’ sub-grounds. For example: Art 4 of Dir 2004/113/EC states: 1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that (a) there shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity; and less favourable treatment of trans people for reasons associated with their gender identity and gender expression.

2 Gender Equality Strategies

Roadmap The EU will soon adopt the Follow-up strategy to the Roadmap for equality between men and women The EP has adopted the Figueiredo Report which strongly calls for clear measures to address discrimination against trans people We expect the EC to follow this call, along with that of ILGA-Europe, TGEU and EQUINET

Roadmap: ILGA-Europe T demands Combat gender based stereotypes (gendernormativity, transphobia) Effective legal protection (current + future) Tackling intersectional discrimination Gender equality measures take full account of trans people

VAW The EU is also in the process of adopting a Strategy for combating violence against women This strategy is very important opportunity to address violence and hate incidents against trans people since they are disproportionately targeted by perpetrators

VAW: ILGA-Europe T demands Adoption of effective legal measures VAW as core; but trans people also clearly covered Cover men who may fall victims due to their gender non-conformity/ gender reassignment Build upon existing local/ national strategies Combat gender stereotypes, transphobia, and gendernormativity.

Conclusion

Can we allow this in an EU that we are proud of? TRANS

World Leader The CoE sexual orientation and gender identity recommendations and resolutions are very useful resources to brings trans concerns closer to the core of EU gender mainstreaming approaches. For the EU to maintain its global leadership in equality and anti-discrimination, now is the time to act against discrimination of trans people.

Thank you!