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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0013

	Název: Title:		ECJ Judgement of 30 April 1996 Case C-13/94 Preliminary Ruling P v S and Cornwall County Council [1996] ECR I-2143

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Defrenne Case 149/77 Defrenne v Sabena [1978] ECR 1365


	Plný text: Fulltext:		Ne

Fakta:
Since 1991, P. worked as a manager in an educational establishment operated by Cornwall County Council, the competent administrative authority for the area. In early April 1992, P. informed S., the director of the establishment of the intention to undergo gender reassignment. At the beginning of September 1992, after undergoing minor surgical operations, P. was given three months‘ notice. The final surgical operation was performed before the dismissal took effect, but after P. had been given notice.
P. brought an action against S. and the County Council before the Industrial Tribunal, Truro, alleging that she had been the victim of sex discrimination. It appears from the proceedings that the true reason for P.‘s dismissal was his proposal to undergo gender reassignment. The Industrial Tribunal found that such a situation was not covered by the Sex Discrimination Act 1975, inasmuch as it applies only to cases in which a man or woman is treated differently because he or she belongs to one or the other of the sexes. Under English law, P. is still deemed to be male. If P. had been female before her gender reassignment, the employer woiuld still have dismissed her on account of that operation. However, the Tribunal is uncertain whether the dismissal of a transsexual is compatible with the 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, vocational training and promotion, and working conditions (OJ 1976 L 39, 40)
and therefore referred the case to the ECJ.
According to Art. 1 (1), the purpose of the directive is to put into effect in the Member States the principle of equal treatment for men and women, in particular as regards access to employment, including promotion, and to vocational training, and as regards working conditions. Art. 2 (1) of the directive provides that the principle of equal treatment means that there is to be ”no discrimination whatsoever on grounds of sex, either directly or indirectly.” Art. 5 (1) reads: ”Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex”.

Názor soudu a komentář:
For a definition of the term ‚transsexual‘, the Court refers to a judgement of the European Court of Human rights. Thereafter, this term is applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other. Therefore they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature. Transsexuals who have been operated upon thus form a fairly well-defined and identifiable group.
Judgement of 17 October 1986, in
Rees v United Kingdom
, para. 38, Series A, No 106.
As regards the directive, the central passages of the Court‘s reasoning may be restated: First, it considers this piece of legislation as the expression, in the relevant field, of the principle of equality, which is one the fundamental principles of EC law. Moreover, the right not to be discriminated against on grounds of sex is characterised as one of the fundamental human rights whose observance the Court has a duty to ensure (Defrenne ). Accordingly, the Court continues that the scope of the directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of its rights which is seeks to safeguard, the scope of the directive should be read as including any discrimination arising, as in this case, from the gender reassignment of the person concerned. For such discrimination is based, essentially if not exclusively, on the sex of the person concerned. In addition, where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she may be found to have been treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. According to the Court, to tolerate such discrimination would be tantamount to a failure to respect the dignity and freedom to which any person is entitled. For all these reasons, the dismissal of P. is found to constitute a violation of Art. 5.

Shrnutí (Summary of the Judgment):

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