Chief Constable of the West Yorkshire Police v A (No 2)

In employment law, a post-operative transsexual must be treated as belonging to the reassigned gender unless significant public-interest factors justify a different approach. Discrimination because of gender reassignment is discrimination on grounds of sex for the purposes of the Sex Discrimination Act 1975 and the Equal Treatment Directive. A genuine occupational qualification cannot be established merely by relying on operational difficulties under the Police and Criminal Evidence Act 1984. Where the applicant accepts that her gender reassignment may be disclosed, search-related difficulties can be managed and do not justify refusing to consider her for appointment.

A, a post-operative male-to-female transsexual, applied to become a police constable. The Chief Constable accepted that she had been discriminated against because of her transsexuality, but relied on the genuine occupational qualification provisions of the Sex Discrimination Act 1975. The Employment Tribunal found that excluding her would be disproportionate. The Employment Appeal Tribunal allowed the Chief Constable’s appeal and remitted the case for further consideration, holding that A could not be held out as female for search purposes and that concealment of her transsexuality was impracticable.

A appealed and the Chief Constable cross-appealed. After Goodwin v UK, A made clear that she accepted disclosure of her transsexuality to colleagues and, if necessary, members of the public. The central issue was whether she had to be treated as female in the employment context and whether the search provisions created a genuine occupational qualification.

1. Appeal allowed; cross-appeal dismissed. The court held that the complaint had to be determined principally under section 7(2)(b) of the Sex Discrimination Act 1975, while taking account of the consequences for searches under section 54(9) of the Police and Criminal Evidence Act 1984.
2. Following Goodwin v UK [2002] 35 EHRR 447, the court considered that, in the employment context, A could no longer be treated as other than female unless significant public-interest factors outweighed her interest in legal recognition of gender reassignment. The Convention reasoning applied despite the impugned decision having been made before Goodwin. Buxton LJ added that the relevant legal question is rule-specific: the law need not assign a person one gender for every purpose.
3. Because discrimination on grounds of transsexuality falls within discrimination on grounds of sex under the Equal Treatment Directive, its occupational-activity exception may also take account of considerations specific to transsexuality. Any such consideration remains subject to balancing, proportionality, and the obligation to manage policing arrangements consistently with privacy and equal-treatment interests.
4. The Chief Constable’s defence depended on operational difficulties said to arise if A were an undisclosed transsexual. Once A accepted disclosure to colleagues and, if necessary, members of the public, arrangements could be made to avoid difficulties under section 54(9). The search-related defence therefore failed, and the court did not need to express a concluded view on the precise operation of section 54(9).
5. Keene LJ agreed with both judgments and added nothing.

• Court of Appeal: Chief Constable of the West Yorkshire Police v A (No 2) [2002] EWCA Civ 1584. The court allowed A’s appeal and dismissed the Chief Constable’s cross-appeal.
• Employment Appeal Tribunal: On 2 October 2001, it allowed the Chief Constable’s appeal from the Employment Tribunal and remitted the matter for reconsideration of the genuine occupational qualification issue.
• Employment Tribunal: On 8 March 1999, it found discrimination but held that excluding A from appointment would be disproportionate, subject to its consideration of the statutory exception.