Being a post-operative transsexual person, though not pre-op or non-op, is a “protected status” within the meaning of the European Convention on Human Rights, article 14. This is the result of Carpenter v Secretary of State for Justice, in which a post-operative trans woman challenged the requirement to inform the Gender Recognition Panel of the details of her surgery. I found the case on Halsbury’s Law Exchange. What does protected status mean?
Article 14 provides, The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
This means that the State must not discriminate against a person because s/he is post-op trans, in enforcing rights under the Convention. Cases cannot be pleaded against other parties. A case must be pleaded about another right; but even if that case is not established, it opens the door to the trans person pleading discrimination.
I am unclear as to what that might mean. The Human Rights Act remains essential for British freedoms, even for “British values”; I feel I am more likely to need the protection of other articles than article 14 as a post-operative trans woman.
Though post-operative, I resent this shibboleth of The Operation as the sine qua non of any protection under any law. Post-operative trans folk are a tiny minority of trans folk. I am more likely to be treated badly because I am trans, rather than because I am specifically post-op. Though as it is difficult to discover a person’s operation status, or even their desire permanently to express themselves in their true sex, other trans people may be protected because would-be discriminators fear legal action.
I doubt the British state will treat a post-operative trans woman differently because she is post-op. If they did, they have a discretion to justify why different treatment because of my operation is appropriate.