Women and Justice: Keywords

Domestic Case Law

Khaki v. Rawalpindi Supreme Court of Pakistan (2009)

Gender discrimination, LGBTIQ

The Supreme Court of Pakistan considered the social status and injustices caused to the transgender population. The Court noted that under the Constitution of Pakistan, transgender individuals are entitled to enjoy constitutional rights like every other citizen of Pakistan. Over the years, transgender individuals in Pakistan have been deprived of inheritance, other property rights, voting rights, education, and employment due to the stigma and exclusion they have suffered. The Court directed the National Database and Registration Authority to adopt a strategy for recording exact status in the electoral list and the Federal and Provincial Governments to ensure that transgender individuals receive childhood education. The Court directed the Chief Secretaries/Commissioners to consult with the Social Welfare Department to implement the order and prepare a policy that would allow transgender individuals to vote during elections.



Direct Action of Unconstitutionality (ADI) 4275 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2009)

Gender discrimination, LGBTIQ

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender marked in the civil registry. The court stated that this does not require psychological evaluation, hormonal treatment, transition surgery, or any other medical procedure. The court recognized the right of transgender persons to change their civil registry without gender change or even judicial authorization. All the justices of the court recognized the right and the majority understood that no judicial authorization is necessary of the amendment.



Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.



Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.



Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)

Gender discrimination, LGBTIQ

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire.  The police detained the Applicants for the entire weekend without explaining the charges against them.  Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02.  At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ.  The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire.  Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars).  The loitering charges were eventually dismissed.  The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case.  SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress.  The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel.  They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution.  Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution.  The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims.  The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic.  The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.



Fabian v. Hospital of Central Connecticut United States District Court for the District of Connecticut (2016)

Employment discrimination

Plaintiff complained that the Hospital of Central Connecticut did not hire her to be an on-call orthopedic surgeon because she disclosed that she was a transgender woman. Defendant moved for summary judgment, which the court denied, citing that transgender discrimination is a cognizable claim under Title VII as sex-based discrimination.



Rosati v. Igbinoso Court of Appeals for the Ninth Circuit (2015)

Gender discrimination

Pro se plaintiff Rosati, a transgender female, was imprisoned in California and suffering from Gender Dysphoria. Prison officials refused to provide the medically necessary gender reassignment surgery. The prison officials denied the gender reassignment surgery on the recommendation of a physician’s assistant who had no experience in transgender medicine and in spite of the plaintiff attempting repeated self-castrations. The district court dismissed without leave to amend for failure to state a claim on which relief could be granted. The Ninth Circuit reversed the dismissal citing that the prison officials were deliberately indifferent to the serious medical need of the inmate and that such conduct was a violation of the Eighth Amendment right to be free from cruel and unusual punishment, and that a plausible claim for relief was stated.



Avendano-Hernandez v. Lynch Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

Plaintiff was a transgender woman from Mexico who was subjected to sexual assault and rape by Mexican police and military throughout her life. In 2006, she was arrested in America for driving under the influence. In 2007 she was deported to Mexico. After suffering more mistreatment in Mexico, Avendano-Hernandez returned to the U.S. and appealed for asylum under the United Nations Convention Against Torture. She reentered the United States in May 2008 and was arrested three years later for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation office. Plaintiff applied for withholding of removal and relief under the Convention Against Torture but the immigration judge denied her request for failing to show that the Mexican government would more likely than not consent to or acquiesce in her torture, which was confirmed by the Board of Immigration Appeals. On appeal, the Ninth Circuit reversed the decision with respect to the Convention Against Torture application because it was enough for Avendano-Hernandez to show that she was subject to torture at the hands of local officials. Additionally, the immigration judge relied on recent anti-discrimination legislation; however, the judge did not consider the legislation’s effectiveness. Therefore, Plaintiff should be given relief under the Convention Against Torture.



Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.



NSW Registrar of Births, Deaths, and Marriages v. Norrie High Court of Australia (2014)

Gender discrimination

After undergoing a sex affirmation procedure, Norrie registered as “non-specific” with the NSW Registrar. After initially approving this registration, the NSW informed Norrie that the registration was invalid. The Administrative Decisions Tribunal of New South Wales agreed with this determination, and the Tribunal’s appeal panel dismissed Norrie’s appeal. At this point, Norrie appealed to the Court of Appeal of New South Wales, which remitted the matter to the Tribunal for determination of Norrie’s sex classification. The Registrar appealed to the High Court. The issue on appeal to the High Court was whether the NSW Registrar was in fact confined to registrations of “male” or “female,” which would preclude Norrie’s registration as “non-specific.” The High Court noted that the Transgender (Anti-Discrimination and Other Acts Amendment) Act of 1996, which amended the Births, Deaths, and Marriages Registration Act of 1995, recognized “ambiguities.” Furthermore, the Court pointed to its holding in AB v. Western Australia, where it stated that "the sex of a person is not ... in every case unequivocally male or female." On this basis, the High Court held that individuals do not have to affirmatively select “male” or “female” following a sex affirmation procedure, and may instead register as “non-specific” with the NSW Registrar.



Appeal Concerning an Application for Permission to Revise a Family Registration, ID 28212731 Third Petit Bench of the Supreme Court (2013)

Gender discrimination

Person X1 was female and underwent surgery to become a man. X1 registered as a male and married a woman X2 in 2008. In 2009, X2 bore a child. In 2012, X1 applied to have the family registry reflect that X1 was the child’s father and that the child was born while X1 and X2 were married. The ward mayor in charge of changes to family registries held that there was a problem with the application because Article 774 of the Civil Law was inapplicable to the child’s situation as the child was not related by blood to X1. X1 did not comply with the ward mayor’s request to fix the application, so the ward mayor filled in the family registry for the child with a blank for father and a note that the child was X2’s oldest son. X1 and X2 filed suit to have X1 added as the child’s father on the grounds that the child should be presumed to be a “legitimately” born child based on Article 772 of the Civil Law. The Supreme Court held that the child should be presumed to be the son of X1, overruling the lower court and the ward mayor’s decision. The court reasoned that under Article 3.1 of the Gender Identity Disorder Law, a transgender man should be treated for all purposes under the law as a man. The court held that this includes being able to marry and have a “legitimate” child. Following this decision, the Ministry of Justice issued a notification on 27 January, 2014 directing that this procedure be followed for any similarly situated families. Subsequently, the state changed the family registry for forty-five such couples to reflect that both parents are their children’s parents.



Legislation

Anti-Discrimination Act (1998)

Employment discrimination, Gender discrimination, LGBTIQ

The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a  person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and  resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.



Justice and Related Legislation (Marriage and Gender Amendments) Act (2019)

Gender discrimination, LGBTIQ

The Act was adopted to amend several major pieces of legislation in Tasmania, including the Adoption Act 1988, the Anti-Discrimination Act 1998, and the Births, Deaths and Marriages Registration Act 1999, with the purpose of improving and strengthening the rights of trans people. The new provisions make it possible to change legal gender through statutory declaration and remove the previous requirement of having completed gender reassignment surgery before amending a birth certificate. Additionally, gender is now allowed to be taken of birth certificates altogether. The Act entered into force on 5 September 2019.



Offenses Pertaining to Schools (Title 16, Chapter 38, General Laws of Rhode Island)

Gender discrimination, LGBTIQ

Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.