When m'lud says justice ain't my job
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When M’lud Says Justice Ain’t My Job
British judges don’t want to be the ones to give us justice, so it’s back to Europe … and to Parliament
Sunday 5th November 2000
It seems to us that society’s tolerance of transsexualism is a topic not best determined by courts of law
The Honourable Mr Justice Morison, in the 1999 judgment of the Employment Appeal Tribunal in the case of X v NHS Pensions Agency
If the full impact of those words has not sunk in, then stop for a moment and consider the horror of that sentence in any other context. Try replacing that word “transsexualism” with another term such as “disability”, “old age”, or “race” and see how it looks:
“society’s tolerance of race is a topic not best determined by courts of law”
“society’s tolerance of disability is a topic not best determined by courts of law”
Can you imagine the outcry if a judge were to pronounce in this way that a whole class of people was excluded from the protection of the courts? It could easily become front-page news, one of those stories where a judge is universally mocked for his silliness and derided for his antiquated attitudes: foreign commentators would pronounce on the intolerance of a society which allowed such people to dispense justice.
Or rather, they would if the judge concerned had used a word other than “transsexualism”. But that was the word used by Morison; and as a result, the ruling has received little attention.
The UK’s courts have spent much of the last few decades deciding upon issues of society’s tolerance of minorities. In test cases on racial discrimination, British judges decided that being Jewish or Sikh was a racial matter and not just a religious one, thereby entitling them to protection under the Race Relations Act. On questions of sex discrimination, countless of other important points about the legality of social attitudes have been determined in the Courts. It seems to be acceptable to use the law to determine society’s tolerance of some minorities … but not us.
In most countries, a written constitution provides a framework in which judges can and do consider such principles of equality, and frequently pronounce on the justice or otherwise of the way in which a society treats its minorities. Not having a written constitution, the UK has a weaker tradition of judicial protection of minorities. Maybe, as the Human Rights Act takes hold, judges will feel less cautious about ruling against discrimination; but that remains to be seen.
Thank you, Morison
In the meantime, though, we owe The Honourable Mr Justice Morison our thanks. Not for his jurisprudence, because the principles he brings to his work seem much less encouraging than the cheery face he displayed when I saw him presiding over a hearing, but for letting the cat out of the bag.
In a sentence which he may come to regret, Morison has given a clear warning to all of us that we cannot expect the UK courts to apply the principles of justice to trans people in any way which disrupts the status quo. When the pensions case on which Morison pronounced was referred to the Court of Appeal, the judges there referred it on to the European Court of Justice.
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And there lies the irony. It was the European Court of Justice which in 1996 made the landmark ruling in the case of P v S & Cornwall County Council: it ruled that discrimination against transsexual people is illegal. In a ruling which Morison himself describes as “enlightened and sympathetic”, the ECJ upheld our right to equal treatment: the court’s Advocate-General wrote that to do otherwise would be a “betrayal of the true essence of that fundamental and inalienable value which is equality”.
It is unlikely that Morison would be foolish enough to openly express any reservations he has about the ECJ’s support for the notion that trans people should benefit from equal treatment. But it’s very clear from this ruling that far from being willing to apply fundamental principles to a new area of law, as the ECJ did in P-v-S, Morison would not even extend their application within an area of law where the general principle had already been clarified. On the contrary, he has tried to restrict our rights: in a bizarre line of reasoning, he asserts that the P-v-S case only guarantees trans people equality with their former sex, not with that in which they now live their lives.
From Europe, we can hope for the justice which was denied in the English High Court of Justice: we know, at least, that the European Court of Justice has shown fewer reservations about using the law to protect minorities. Across the North Sea, “justice” has a less restricted meaning than in London.
What About The Human Rights Act?
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Morison’s ruling was issued 18 months ago. Have things improved since then, especially with the entry-into-force of the Human Rights Act in October 2000?
Not for Elizabeth Bellinger, they haven’t. This week, in another branch of the High Court (the Family Division this time) Mr Justice Johnson seemed similarly reluctant to right an injustice, ruling that the law as it stood prevented him from declaring Mrs Bellinger’s 20-year marriage to be valid.
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Funny how this line of reasoning goes, isn’t it? When April Ashley appeared before the High Court in 1969 to defend her marriage, the law had not impeded trans people from marrying. The situation then was that we could indeed conduct legally valid heterosexual marriages. Yet Ormrod J shared none of Morison’s reservations: he decided upon a new definition of sex which undid April Ashley’s marriage by declaring her to be legally male. It was a ground-breaking decision: one which most of us believe to be fundamentally flawed, but a landmark ruling nonetheless. In deciding that invisible genetic codes would override all other criteria in determining sex, Ormrod made a decision which had a major impact on the issue which overwhelmed Morison: “society’s tolerance of transsexualism”.
Yet, thirty years later, the High Court (of which the Employment Appeal Tribunal is a division) seems to have been overcome by shyness when considering its powers to undo a previous mistake. So the Bellingers remain in legal limbo, with every reason to fear for the safety of their pensions and all the other mutual rights and responsibilities which our society confers on married couples. Mrs Bellinger may try to bring her case to the Court of Appeal, but her path has been made more difficult by Mr Justice Johnson’s refusal of leave to appeal — so she will first have to apply for permission to have her appeal heard.
The courts seem insistent in their determination to leave this job to parliament.
Hands Off
Maybe the Appeals Court will feel inclined to take a less one-sided view of the limits of a judge’s role, but any caution they feel will find support from powerful quarters. The Guardian reported yesterday how Mr Justice Johnson noted that the Attorney-General told his Court “this is an area of law in which reform needs to be comprehensive and should be left to parliament.”
So there you have it. The government has warned the courts: “hands off”. And the courts have complied.
It is depressing that the courts have been cowardly enough to comply with this request, but we can only hope that the European judges hearing the pensions case will be less slavishly bound to follow the British government’s line. We can hope too, that if and when Elizabeth Bellinger finds her way to the Court of Appeal, the three judges who hear her case there will show rather more independence and rather less caution.
Taking The Government At Its Word
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There is a certain cheek in the Attorney-General’s submission to the Court. He argues that Parliament needs to sort out the details of our situation, which seems reasonable; but it does not follow that the Courts should not decide the principle.
Courts regularly decide matters of principle: if the result is confusion, then Parliament can legislate to clarify the details. That is, after all, precisely what this government tried to do for trans people after the P-v-S case, by introducing amendments to the Sex Discrimination Act (though the mess they made of that legislation is not encouraging, with two of the exceptions promptly struck out by tribunals for breaching European law, as Press For Change warned ministers would happen).
In the end, though, I’m inclined to take the Attorney-General at his word and to assume that his submission to the High Court represents government policy. It’s his job to represent the government in court: his job would be on the line if his submission was merely a personal opinion.
The Attorney-General says that “reform needs to be comprehensive”. I agree, wholeheartedly: Press For Change and the other groups representing trans people in the UK devoted a lot of work to making precisely that case to the Government’s Inter-departmental Working Group. As you know, the working group agreed: its report said that “The Group identified no areas where a transsexual person might be granted recognition in their acquired gender, in the absence of full legal recognition, without leading to confusion and uncertainty”.
As to the second part of the submission, that reform “should be left to parliament”, the principle is praiseworthy. Parliament’s job is to pass laws, and if it wants to do that job, we can only celebrate.
The Big Question: When Do They Start?
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The niggling question, though, is when do they start? Having decided that parliament should do the job, when will the government give Parliament the chance to start work?
Parliament can only act if the government drafts legislation and asks MPs and peers to vote on it and amend it. That can only happen if the government decides to legislate … and so far the government has not decided to legislate.
Or rather we thought it hadn’t. But the Attorney-General is now telling us a new story: that legislation is indeed required.
As we gear up for a winter of lobbying MPs to support early legislation, remember to tell them about our new ally, the Attorney-General. He reckons it’s their job, and so do we. He says the details are complex: we agree. And that’s why it is time for ministers to instruct civil servants to draft the necessary legislation.
So the crucial question your MP needs to ask ministers is: when can they start to do the job which we all agree needs to be done? When will ministers do their job, so that MPs can do Parliament’s work?
Claire McNab
(Vice-President, Press for Change)
