Ontario, continental tribunals take gender identity seriously
Tribunals in Europe and Canada have recently issued significant transsexual rights decisions that treat the issue of gender transition with complete seriousness and empathy.
An Ontario Human Rights Tribunal Adjudicator, Mary Ross Hendriks, issued a lengthy ruling May 16 finding that the failure of local police officials to allow transsexual detainees to choose the gender of police officers assigned to perform strip searches on them is a violation of the right to be free of sex discrimination, a protection provided by the province’s Human Rights Code.
On May 23, a chamber of the European Court of Human Rights ruled that the United Kingdom had violated the right to respect for private life under the European Charter when the government persisted in denying a pension application from a transgendered applicant because that she had not yet attained the requisite age for a male pension. In 2002, the same court ruled Britain’s failure to recognize gender identity violated the Charter.
The European Court ruling was largely symbolic for the plaintiff, but it reiterated the court’s will on matters of gender identity. The Ontario decision went beyond symbolism, imposing significant changes in police procedure and training there.
Rosalyn Forrester, a transsexual woman, filed the action in Ontario, a move championed by the province’s Human Rights Commission. Amidst a 1999 custody dispute with her former spouse as she was transitioning from male to female, her ex complained to police about threats and harassment, and Forrester was arrested. Each time she was taken to the police station, she was subjected to a strip search before being placed in a cell.
The Tribunal hearing record makes clear that Forrester’s desire to be searched only by women police officers was not accommodated, and that she felt humiliated and experienced significant emotional distress from having to disrobe in front of male police officers. The Tribunal found that this was sex discrimination, even though transsexualism is not specifically a protected category. Just as male or female detainees would not be subjected to strip searches by police officers of the opposite sex except in emergency situations, similar respect must be given to the sensibilities of transsexual detainees, the Tribunal found.
The hearing testimony revealed widespread ignorance on the police force about transsexuality, and in her decision Adjudicator Hendriks found that part of the remedy must be for the police to work with transsexual rights advocates to develop training videos for the entire force.
Hendrik’s opinion, which runs 125 pages and is available on the Tribunal’s Web site, is a rather startling document in its sensitivity and knowledge by comparison to the way some American appellate courts have dealt with transgender issues.
The European Court ruling responded to a complaint by Linda Grant, a retired police officer recorded as male at birth, who served in the armed forces and then the police force, and began her gender transition at age 24, presenting herself as a woman since 1963. During the period when the National Insurance scheme had separate rates for men and women, she paid at the women’s rate.
In the U.K., the retirement age for women is 60 and for men is 65 (a differential being phased out). As her 60th birthday approached in 1997, Grant applied for her state pension, but was denied because her birth certificate identified her as male. As she unsuccessfully appealed this decision administratively, other litigation challenged the U.K.’s refusal to provide legal recognition for gender identity change. That litigation culminated in the 2002 European Court ruling that the U.K. was not meeting its obligations under the Convention on Human Rights.
In response, the U.K. enacted a gender recognition statute that went into effect in 2004. On the day after the 2002 European Court decision, Grant, then 64, submitted a new application asking for her pension, and that it be made retroactive to age 60, but was again turned down since the law had not yet been updated. Grant took the matter to the European Court.
The Court concluded that the U.K. could not be held liable prior to the date of its 2002 ruling, meaning that Grant’s remedy was limited to the three months from the time of that ruling until her 65th birthday. She was awarded less than $2,200 in pension reimbursement, but also nearly $36,000 in legal fees and expenses.
Though the decision is largely symbolic, it does send the message to all European members countries that they must take seriously the requirement of recognizing the gender identity claims of transsexual residents.