A (Respondent) v. Chief Constable of West Yorkshire Police (Appellant) and another

Community law required a post-operative trans person who had successfully transitioned to be recognised in the acquired gender within the fields governed by the Equal Treatment Directive. Accordingly, references to sex in domestic employment-discrimination legislation, and to a constable being of the same sex as a person searched, had to be read consistently with that acquired gender.

The occupational-qualification derogation from equal treatment must be construed strictly and proportionately. A police force could not refuse appointment merely because the applicant was transsexual and allegedly unable to perform searches. The prospective ruling in Goodwin did not provide the retrospective foundation for this result.

A post-operative male-to-female trans person applied to become a constable. The Chief Constable rejected her application because domestic law treated her as male, while her appearance made it impracticable for her to search men. He considered searching an essential police function.

The employment tribunal upheld her complaint under the Sex Discrimination Act 1975. The Employment Appeal Tribunal reversed that decision in West Yorkshire Police v A (No 2) [2002] ICR 552. The Court of Appeal restored the tribunal's decision: [2002] EWCA Civ 1584; [2003] ICR 161.

The House considered whether the refusal was unlawful sex discrimination in March 1998, having regard to the Equal Treatment Directive and the statutory requirements governing police searches.

1. Appeal dismissed unanimously. Lord Bingham and Baroness Hale delivered the principal speeches. Lord Steyn agreed with both, and Lord Carswell agreed with their reasons. Lord Rodger reached the same result by a separate route.

2. Per Lord Bingham and Baroness Hale, Community law required a post-operative trans person who had successfully achieved transition to be recognised in the acquired gender for matters governed by the Equal Treatment Directive. P v S established that discrimination arising from gender reassignment was discrimination on grounds of sex. KB confirmed that recognition extended to preconditions for enjoying Community rights.

3. Accordingly, section 54(9) of the Police and Criminal Evidence Act 1984 had to be read as referring to acquired gender. The sex-related expressions in sections 1, 2, 6 and 7 of the Sex Discrimination Act 1975 required the same approach. A post-operative trans woman who was visually and practically indistinguishable from other women could therefore search women under section 54. An objection based merely on her transsexuality would not be reasonable.

4. Article 2(2) of the Equal Treatment Directive was a derogation from an individual right. It therefore required strict and proportionate interpretation. No sufficiently strong public-policy reason justified excluding the respondent from appointment. The refusal consequently amounted to unlawful discrimination.

5. Lord Rodger held independently that section 7 of the 1975 Act did not make either sex a genuine occupational qualification for the office of constable. Men and women held the same office. The Chief Constable was also willing to arrange for other officers to undertake the relatively infrequent searches. The tightly drawn exception could not be expanded to require a man capable of searching men or a woman capable of searching women.

6. The House did not rely on Goodwin v United Kingdom. Per Lord Bingham and Baroness Hale, that decision was prospective and could not retrospectively determine the legality of a decision taken in 1998. Nor did the result disturb Bellinger v Bellinger, which concerned marriage, lacked a Community-law dimension and appropriately left comprehensive reform to Parliament.

1. House of Lords: The Chief Constable's appeal was dismissed unanimously: [2004] UKHL 21.
2. Court of Appeal: The respondent's appeal was allowed and the employment tribunal's decision restored: [2002] EWCA Civ 1584; [2003] ICR 161.
3. Employment Appeal Tribunal: It held that the occupational qualification based on decency or privacy applied: West Yorkshire Police v A (No 2) [2002] ICR 552.
4. Employment tribunal: It unanimously held that refusing the respondent employment as a constable constituted unlawful sex discrimination.