52. Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.
53. Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.
(7) Discrimination on the grounds of being transgender: the 1999 Regulations
54. The common law of England and Wales did not recognise the possibility of a person becoming a different gender from their gender at birth. In the well-known case of Corbett v Corbett (otherwise Ashley) [1971] P 83, the High Court declared that a marriage was null and void where both parties were biological males but one had undergone gender reassignment. Ormrod J said that over a very large area, the law is indifferent to sex. In other areas, such as insurance and pension schemes, there was nothing to prevent the parties to a contract from agreeing that the person concerned should be treated as a man or a woman, as the case may be: p 105. But marriage was a relationship between a man and a woman and, in the context of marriage, even if not for other purposes, the person was still a biological male. That conclusion that a person could not change sex was applied in the criminal law in R v Tan [1983] QB 1053.
55. In P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, [1996] ECR I-2143 (“P v S”) the European Court of Justice considered the scope of the Equal Treatment Directive, that is Council Directive 76/207/EEC (OJ 1976 L39 p 40) in the context of alleged discrimination connected to gender reassignment. The applicant (a biological male employee) was dismissed by Cornwall County Council after telling her employer that she intended to undergo gender reassignment surgery. She complained of unlawful discrimination on the grounds of her sex. The Judge Rapporteur recorded that the industrial tribunal “found that there was no remedy under the Sex Discrimination Act 1975, the applicable United Kingdom statute, since English law took cognisance only of situations in which men or women were treated differently because they belonged to one sex or the other, and did not recognise a transsexual condition in addition to the two sexes. Under English law, the applicant was at all times a male” (para 7). The Court at para 18 held that the Directive was “simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law”. The right not to be discriminated against on grounds of sex was, the Court said, a fundamental human right and accordingly the Directive also applied to discrimination arising from gender reassignment (para 20).
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