The extent of equality for homosexuals & transsexuals under UK's legal system.

            The The Sex Discrimination (Gender Reassignment) Regulations 1999 has been subject to examination in various ways. This can be brought down to assessing the Regulations in terms of advantages and disadvantages. The first advantage is that the definition of ‘gender reassignment’ is wide enough to not require any one treatment in particular in order to cover a person (transsexual). Also the Regulation covers people who not merely have conveyed their intentions, are undergoing or has undergone gender reassignment, but also those who have no intentions of undergoing surgery by relying on hormones. Another advantage is that, the Regulation puts down in writing, matters concerning ‘Genuine Occupational Qualifications’ (GOQ) for transsexuals. It is up to the employer to prove that he or she has taken reasonable steps. Inherent disadvantages identified within the Regulation seem to be reasons enough for to lobby for it to stop from proceeding any further, unless it is significantly amended. Disadvantages identified revolve around GOQ for transsexuals. It can be seen that Regulation 4 has restricted chances of employment of transsexuals in certain occupations by providing for exceptions where discrimination protection is not given. An example of an instance is the that“ … involves holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers”, which proves to be a disadvantage because employers might prevent transsexuals from holding such jobs by using relevant statutory provisions to stop them from being employed. Another instance would involve requiring the holder of the job to live or do his or her work in private homes under situations where householders might reasonably object to the level of physical or social contact his or her are likely to have with them, or the possibility of knowing intimate details of their life by him or her. This would bring about the possibility of paranoia and abuse by arguing that transsexuals should not be employed in case of such instances occurring. Also, where the holder of the job which requires ‘living in’ is a transsexual, reasonable objection could be raised to preserve privacy and decency.  The onus is on the employer to show that it is unreasonable to provide suitable accommodation or alternative arrangements for him or her. This part deals only with people intending to undergo or are in the process of undergoing gender reassignment. However no definition has been given to mark the ending of the process. Thus, he or she could be prevented from holding the job for an uncertain period. As such, the The Sex Discrimination (Gender Reassignment) Regulations 1999, after being scrutinized, may not be as beneficial as it seems.

Since the European Convention of Human Rights became part of British domestic law, the legal position in the United Kingdom is being transformed. At first, the Convention seemed to have little or no effect but it is becoming more obvious that its influence is going to be greater than expected. Article 8 of the Convention, guarantees respect for private and family life, has been held to confer a right on an individual to assert his sexual identity. In the case of Mendoza v. Ghaidan [2002], Lord Justice Buxton states that "Parliament having swallowed the camel of including unmarried partners within the protection given to married couples, it is not for the this court to strain at the gnat of including such partners who are of the same sex as each other." Homosexual partnerships and the ‘marriage’ of transsexuals should be recognised by law and afforded the same rights as traditional marriages. Recently, there have also been substantial developments, spurred by the European Convention, towards equality for the 5,000-strong minority of transsexuals in the UK. Following decisions of the European Court which found the UK government's policy on transsexuals to breach Article 8 and Article 12, the right to marry, the government has committed itself to introducing a Bill to formally recognise a transsexual's acquired gender including the right to marry in the acquired gender.

            An upcoming legislative after The Sex Discrimination (Gender Reassignment) Regulations 1999, is the Gender Recognition Bill to be cited as the Gender Recognition Act 2003. It deals with the applications for gender recognition certificates. Requirements in order to apply for the aforesaid certificates are listed. For example, applicants must be of 18 years and above. Evidence is then required to proof that the applicant is subject to gender dysphoria. This comes in the form of a report given by a medical practitioner or chartered psychologist, expert in the relevant field. The applicant must also make a statutory declaration that the required conditions are met and to announce his marital status. The Gender Recognition Panel issues certificates. After acquiring it, the acquired gender of the person becomes for all purposes, a full gender. The Bill addresses issues such as to marriages, parenthood, succession to property and peerages, further amendments to the Sex Discrimination Act 1975 and so on. Other than relevant legislation, further evidence should be given to illustrate the extent of equality of homosexuals and transsexuals in UK. The case of A v. West Yorkshire Police, which is mentioned beforehand, relates to Regulation 4 of The Sex Discrimination (Gender Reassignment) Regulations 1999.  This case is a proof to society at large that there are no limits to transsexuals’ abilities in any occupation. The plaintiff was a woman who had undergone gender reassignment and later applied to be constable. The application was allowed initially, but was not in later stages as the defendants considered possibility of hardship whilst conducting searches beyond outer clothing as it was required that officers and suspects to be of the same sex. The plaintiff’s birth certificate still showed her gender as male. The case was decided in favour of the plaintiff as the employment tribunal held that if the defendant’s case was allowed, then no transsexual would be able to be employed in the police force, thus going against the right to equal treatment. Other changes in the law include recognition of the criminal law of rape that men could be charged with raping another person who is legally male. However, certain legal terms relating to rape needs to be changed in order to include trans people. Transsexuals are also able to assert their reassigned gender through documents other than birth certificates, such as driving licenses. This issue is in relation to the Gender Recognition Bill. A problem yet to be solved is which prison should a transsexual be sent to when he or she commits a crime? Laws concerning marriage is yet to be changed as transsexuals are not protected under divorce laws, let alone foster or adopt children as any marriage of transsexual couples are not legally recognized.

            

The UK legal system has started to recognize that a certain group of people, that is, the homosexuals and transsexuals need protection in the form of legislation. So far, legislation has been provided but, whilst providing undeniable benefits, the inherent flaws do not guarantee full protection. “Whilst the recent judicial rulings in both jurisdictions and plans for legislative reform in the UK are to be welcomed, they constitute only a gradual and piecemeal solution to a problem.”

There are still problems yet to be attended to, and by considering the present speed of development, considerable effort would be needed to address and rectify them all,

“homosexuals need to … become more vocal and work together with one another and heterosexuals to achieve their goal of equality through legislation."

 The equality of homosexuals and transsexuals may not have extended far enough into the legal system, but further reforms backed up with gradually liberal minds will ensure that homosexuals and transsexuals will someday receive equal treatment.

   

   

   

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