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

Abstract

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 P v S and Cornwall County Council,' 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 R v Ministry of Defence, exp 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 v Safeway 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 P correctly 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