A v West Yorkshire Police

The House of Lords held that a post-operative male-to-female transsexual who visually and for all practical purposes presents as a woman falls within the protection against sex discrimination afforded by Council Directive 76/207/EEC (the Equal Treatment Directive) and therefore must be treated, for the purposes of the Directive and the Sex Discrimination Act 1975 as read in light of that Directive, in her acquired gender unless there are strong and proportionate public-policy reasons to the contrary.

Applying that principle to the statutory duty in section 54(9) of the Police and Criminal Evidence Act 1984 (that the constable carrying out a search be of the same sex as the person searched) and to the genuine occupational qualification defences in section 7 of the Sex Discrimination Act 1975, the House concluded that a post-operative transsexual who is visually indistinguishable from others of her acquired sex should be regarded as of that sex for the purposes of those provisions. The appeal by the Chief Constable was therefore dismissed.

Background and parties:

• Applicant/Respondent: Ms A, a post-operative male-to-female transsexual who applied in 1997 to join West Yorkshire Police as a constable.
• Defendant/Appellant: Chief Constable of West Yorkshire Police, who in March 1998 refused her application on the ground she could not perform the full searching duties required of a constable.

Procedural history:

• Employment Tribunal (18 March 1999): held the refusal unlawful and awarded a declaration and compensation.
• Employment Appeal Tribunal: reached a contrary view, holding that the office needed to be held other than by a transsexual to preserve decency or privacy.
• Court of Appeal ([2002] EWCA Civ 1584; reported [2003] ICR 161): allowed Ms A's appeal in large part.
• House of Lords ([2004] UKHL 21): this appeal.

Nature of the claim and issues:

• Ms A alleged unlawful sex discrimination under the Sex Discrimination Act 1975 as in force in 1998 and sought a declaration and compensation.
• Key issues: (i) whether domestic authorities (Corbett v Corbett and R v Tan) which treated gender as immutable at birth prevented recognition of Ms A's acquired gender for employment purposes; (ii) whether the Equal Treatment Directive and the Court of Justice decisions in P v S and KB required recognition of gender reassignment for the purposes of the Directive; (iii) whether section 54(9) PACE and the genuine occupational qualification in section 7 SDA 1975 could lawfully exclude a post-operative transsexual from appointment as a constable; and (iv) whether confidentiality concerns raised by Ms A affected the legal analysis.

Court’s reasoning and decision:

• The House accepted that, as a matter of domestic common law precedent in 1998, Corbett and R v Tan treated gender as fixed at birth, but held that Community law (the Equal Treatment Directive) and the Court of Justice's decision in P v S required that discrimination on grounds of gender reassignment be regarded as discrimination on grounds of sex.
• Community law must be given effect in domestic law; the Court of Justice had interpreted the Directive to require that a transsexual be treated in the reassigned gender for the purposes covered by the Directive, subject to strict and proportionate derogations under Article 2(2) of the Directive.
• The House concluded that a post-operative transsexual who is visually and practically indistinguishable from non-transsexual members of her acquired sex should be regarded as of that sex for the purposes of the Directive and the Sex Discrimination Act (as to be interpreted in light of the Directive). There were no strong public policy reasons in 1998 to justify exclusion in this case, and the genuine occupational qualification in section 7 SDA 1975 could not be given a broad construction to defeat the Directive.
• Consequently the refusal to appoint Ms A amounted to unlawful sex discrimination and the Chief Constable's appeal was dismissed.

Wider context:

• The House emphasised the role of Community values and proportionality in interpreting derogations from equal treatment and noted contemporaneous domestic developments (the Sex Discrimination (Gender Reassignment) Regulations 1999 and the then-proposed Gender Recognition Bill) but distinguished the present decision from Bellinger v Bellinger (marriage issues) and Goodwin (European Convention jurisprudence), which had different temporal and remedial effects.

Appeal dismissed. The House held that, for the purposes of the Equal Treatment Directive and the Sex Discrimination Act 1975 as interpreted in light of that Directive, a post-operative transsexual who is visually and for all practical purposes indistinguishable from members of her acquired sex is to be treated as of that sex; there were no sufficient public-policy reasons in 1998 to deny Ms A appointment as a constable, so the refusal was unlawful sex discrimination.

Employment Tribunal (18 March 1999): declaration and compensation for Ms A; Employment Appeal Tribunal (reported as West Yorkshire Police v A (No 2) [2002] ICR 552): held genuine occupational qualification applied; Court of Appeal ([2002] EWCA Civ 1584; reported [2003] ICR 161): allowed Ms A's appeal; House of Lords ([2004] UKHL 21): dismissed the Chief Constable's appeal.