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A (Respondent) v. Chief Constable of West Yorkshire Police (Appellant) and another
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Chief Constable of West Yorkshire Police (Appellant) and another
THURSDAY 6 MAY 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
A (Respondent) v. Chief Constable of West Yorkshire Police (Appellant) and another
 UKHL 21
LORD BINGHAM OF CORNHILL
1. On 9 March 1998 the Chief Constable of West Yorkshire rejected Ms A's application to become a constable in the West Yorkshire Police on the ground that, as a male-to-female transsexual, she could not perform the full searching duties required of a police constable. The issue in this appeal is whether he thereby discriminated against her unlawfully in breach of the Sex Discrimination Act 1975. In addressing that issue I gratefully adopt and need not repeat the summary given by my noble and learned friend Baroness Hale of Richmond of the facts, the history of the proceedings, the relevant statutory materials and the arguments.
2. The chief constable rejected Ms A's application in March 1998 on grounds which were in substance the following: (1) He was advised that in English domestic law Ms A remained a man, despite the change of gender she had effected and the gender reassignment surgery she had undergone, because her biological sex at birth was male and nothing that happened thereafter could change it. (2) He concluded that as (legally) a man Ms A could not lawfully search women pursuant to section 54 of the Police and Criminal Evidence Act 1984. (3) He concluded that as an apparent woman Ms A could not in practice search men pursuant to section 54. (4) He regarded it as necessary that a constable should be capable of searching either men or women pursuant to section 54. In the course of these proceedings, but not (I think) as early as March 1998, he inferred that he could not excuse Ms A from all section 54 searching duty without alerting her colleagues to her transsexual history, which he believed would be deeply unacceptable to her.
3. The advice given to the chief constable on English domestic law, summarised in (1) above, was correct. Such was the effect of Corbett v Corbett  P 83. That case, it is true, concerned the capacity of a male-to-female transsexual to marry. But the Court of Appeal (Criminal Division) applied the same rule to gender-specific criminal offences in R v Tan  QB 1053. Both decisions have been heavily criticised, and other jurisdictions have adopted other rules. But there was nothing in English domestic law to suggest that a person could be male for one purpose and female for another, and there was no rule other than that laid down in Corbett and R v Tan.
4. Since section 54(9) of the 1984 Act required a constable carrying out a search under the section to be of the same sex as the person searched, it necessarily followed that if Ms A was (legally) a man she could not lawfully search a woman under the section.
5. Since it is a requirement laid down in paragraph A 3.1 of the Codes prescribed under section 66 of the 1984 Act that "Every reasonable effort must be made to reduce to the minimum the embarrassment that a person being searched may experience", it was plain that Ms A, who appeared in every respect to be a woman, could not, even if legally a man, be permitted to search a man.
6. The chief constable was entitled to take the view summarised in (4) above. The employment tribunal found searching to be an integral function of a police constable and accepted the description of searching as a core competency. The tribunal considered it objectively
7. Having read the three judgments of the employment tribunal and both judgments of the Employment Appeal Tribunal, I share the sense of surprise clearly felt by the Court of Appeal at the statement, made by Ms A's counsel on her behalf during her reply in the Court of Appeal, that if she became a constable Ms A would be willing for her colleagues at large, and if need be the public at large, to know of her transsexuality. The chief constable was well justified in believing that she would not be willing. But I do not think that the outcome of this appeal turns on whether she would or would not have been willing for such disclosure to be made.
8. Thus, in terms of English domestic law, the chief constable was bound to accept, as he did, that on the grounds of her transsexuality he had treated Ms A less favourably than he would have treated a woman who was not a transsexual, by refusing to offer her employment at an establishment in Great Britain, contrary to sections 2 and 6(1)(c) of the Sex Discrimination Act 1975. But he could claim that being a (non-transsexual) woman was a genuine occupational qualification for the job, since the job needed to be held by a woman to preserve decency or privacy because it was likely to involve physical contact with women in circumstances where they might reasonably object to its being carried out by a man, or because the holder of the job was likely to do her work in circumstances where women might reasonably object to the presence of a man (section 7(2)(b) of the 1975 Act). Put more shortly, it was a genuine occupational qualification of a constable to be capable of searching men or women under section 54, and Ms A could search neither. If the problem were purely one of domestic law, I very much doubt if this defence could be defeated.
9. To outflank it, Ms A relied on the law of the European Community. Her starting point was the duty imposed on British courts by section 2(1) of the European Communities Act 1972 to give legal effect to all rights, liabilities, obligations and restrictions from time to time arising by or under the Treaty of Rome. It is of course well-established that the law of the Community prevails over any provision of domestic law inconsistent with it. Ms A relied on the prohibition in article 2(1) of Council Directive 76/207/EEC of 9 February 1976 (the Equal Treatment Directive) of any "discrimination whatsoever on grounds of sex either directly or indirectly." This prohibition was qualified by reserving to member states the right to exclude from the field to which the Directive applied "those occupational activities . . . for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor." Section 17(1) of the 1975 Act provides that the holding of the office of constable shall be treated as employment, but does not exclude police searching activities from the application of the Act.
10. The sheet-anchor of Ms A's case was the important judgment of the European Court of Justice in P v S and Cornwall County Council (Case C-13/94)  ICR 795, which concerned the dismissal of a male-to-female transsexual at a time when she had embarked on but not completed a course of gender reassignment surgery. I need not repeat the passages in the judgment and the opinion of Advocate General Tesauro which Lady Hale has cited. For present purposes the significance of the decision is twofold. First, it held in very clear and simple terms that the Directive prohibited unfavourable treatment on grounds of gender reassignment. Secondly, that prohibition was based not on a semantic analysis of the provisions of the Directive but on "the principle of equality, which is one of the fundamental principles of Community law" (paragraph 18 of the judgment) and on the Court's duty to safeguard the dignity and freedom to which an individual is entitled (paragraph 22). The Court adopted a similar approach in K B v National Health Service Pensions Agency (Case C-117/01)  IRLR 240. That case concerned equal pay, not equal treatment, and judgment was given years after the chief constable's decision to reject Ms A's application. But there is nothing here to displace the ordinary principle that a ruling on the interpretation of Community law takes effect from the date on which the rule interpreted entered into force (see Société Bautiaa v Directeur des Services Fiscaux des Landes (Cases C-197/94 and C-252/94)  ECR I-505, para 49).
11. The question then arises whether the decisions of the European Court of Justice in P v S and KB, and the philosophical principles on which they rest, can cohabit with a rule of domestic law which either precludes the employment of a post-operative male-to-female transsexual as a constable of whom routine section 54 searching duties are required, or requires such a person to be willing to disclose her transsexual identity to working colleagues and, perhaps, members of the public. The first of these alternatives cannot be reconciled with the principle of equality: the exclusion is not one which applies to men or women but only to those who have changed their gender. Yet they also are entitled to be treated, so far as possible, equally with non-transsexual men or women. The second alternative derogates from the dignity and freedom to which a transsexual individual, like any other, is entitled. In my opinion, effect can be given to the clear thrust of Community law only by reading "the same sex" in section 54(9) of the 1984 Act, and "woman", "man" and "men" in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.
12. In reaching this conclusion, I do not intend to question or derogate from the very recent decision of the House in Bellinger v Bellinger  2 AC 467, affirming the decision in Corbett v Corbett  P 83. The House affirmed that decision not because it was insensitive to the hardship which the rule in Corbett, strictly applied, could cause; nor because it was unaware of the criticism to which the decision had been subject; nor because it ignored the Strasbourg authorities on transsexuals. It did so because, alive to the wide ramifications of departure from the established rule, it regarded the field as one calling for comprehensive legislative reform and not piecemeal judicial development. I have no doubt that the decision was wholly correct, and there was a prompt legislative response to it. But the case concerned marriage, perhaps the most important and sensitive of human relationships. It lacked any Community dimension, so that P v S was not cited and there was no need to consider it. And the House exercised its power under section 4 of the Human Rights Act 1998 to declare that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with articles 8 and 12 of the European Convention in failing to make provision for the recognition of gender reassignment.
13. I accordingly reach the same conclusion as the Court of Appeal, but in doing so I would not rely, as it did, on the decision of the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR 447. When the chief constable made his decision in March 1998 the Human Rights Act 1998 had not been enacted. When enacted the Act did not, generally, have retrospective effect. Had it had retrospective effect, it would not have overridden or displaced provisions of primary legislation. Most importantly, the decision in Goodwin was, as its language makes clear and as the House held in Bellinger (paragraph 24), "essentially prospective in character". There is nothing in the Court's judgment to suggest that the earlier cases of Rees v United Kingdom (1986) 9 EHRR 56, Cossey v United Kingdom (1990) 13 EHRR 622 and Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, the last of these cases decided after the date of the chief constable's decision, had been wrongly decided. Rather, the Court recognised that the legal or administrative consensus among member states, the understanding of transsexuality, and evolving perceptions of individual dignity and freedom, had reached a point where the margin of appreciation accorded to a state could no longer be held to legitimise the denial of formal recognition to an acquired change of gender. The importance of the Convention in this appeal derives not from the decision in Goodwin but from the part which the Convention has played in shaping the current European understanding of what fundamental human rights mean and require.
14. I would dismiss this appeal.
15. I have read the opinions of my noble and learned friends Lord Bingham of Cornhill and Baroness Hale of Richmond. I agree with their reasons and conclusions. I would also dismiss the appeal.
LORD RODGER OF EARLSFERRY
16. Ms A is a post-operative male-female transsexual. Unhappily, in the past, when her situation became known in her local community, she suffered hostility, personal abuse, taunts and damage to her home and property; happily, she now lives in another community where she has always been known as a woman and where she experiences no such problems. In January 1997 she applied to become a police officer in the West Yorkshire Police Force, some distance from her home. In March 1998 the Chief Constable refused her application.
17. Ms A then lodged an application with the employment tribunal, alleging sex discrimination by the Chief Constable in terms of the Sex Discrimination Act 1975 ("the 1975 Act"). It is common ground that, in light of the decision of the Court of Justice in P v S and Cornwall County Council  ECR I-2143, by 1998 it was known that discrimination against transsexuals fell within the scope of the Equal Treatment Directive 76/207/EEC ("the directive") and that, so far as possible, the 1975 Act had to be interpreted accordingly. It is also common ground that Ms A's application falls to be considered under the 1975 Act as it stood without the amendments introduced by the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/102). The tribunal eventually held that Ms A was entitled both to a declaration that the Chief Constable had unlawfully discriminated against her and to compensation for that discrimination with effect from 1 September 1999. It remains the case that she seeks both remedies.
18. Because of what had happened in the past, Ms A was at pains to secure that she could conduct these proceedings without the facts being published in the media and her situation becoming known to the public. Not surprisingly, therefore, before the employment tribunal, the Employment Appeal Tribunal and - for most of the hearing - before the Court of Appeal, the proceedings were conducted on the basis that, at the time when the Chief Constable took his decision in March 1998, he was fully entitled to believe that she was not willing for her colleagues and the public at large to know that she was a transsexual. Towards the end of the hearing before the Court of Appeal, however, her counsel indicated that, if she became a police officer, Ms A would be willing for this matter to be made known to her colleagues. The Court of Appeal reached their judgment in favour of Ms A largely on the basis that this was, in fact, her position. But, in my respectful opinion, whatever may be her position now, in a case where she is seeking a declaration of sex discrimination and compensation for that discrimination, the issues must be determined on the basis of the situation in March 1998 as disclosed in evidence before the tribunal. In other words, the question is whether, in March 1998, the Chief Constable discriminated against Ms A unlawfully on the ground of her sex by refusing her application to become a police officer, at a time when he reasonably understood that she was unwilling to reveal, or to allow others to reveal, to her colleagues and to members of the public that she was a transsexual. It is particularly important to be clear on this point since, throughout, the Chief Constable has acted honourably and in good faith.
19. In March 1998 the Chief Constable had been advised that, even though she had successfully undergone all the usual treatment, including surgery, in law Ms A's sex was still male. In my view that advice on the domestic law of the United Kingdom was, and remains, correct: Bellinger v Bellinger  2 AC 467, especially at p 480, para 45 per Lord Nicholls of Birkenhead. Section 54(9) of the Police and Criminal Evidence Act 1984 ("PACE") provides: "The constable carrying out a search shall be of the same sex as the person searched." Parliament's laudable aim is to afford protection to the dignity and privacy of those being searched in a situation where they may well be peculiarly vulnerable. While her application to join the force was pending, Ms A herself very properly drew attention to the possible problem posed by this provision. On the basis of the legal advice given to him, the Chief Constable considered that, because of section 54(9), Ms A could not lawfully search female suspects. And, in practice, she could not search male suspects. Nor could the Chief Constable arrange for Ms A not to have to carry out searches without it becoming known why he was doing so. Since he understood that she was not willing for this to happen, the Chief Constable decided that he could not accept her application to join the force.
20. My noble and learned friend, Lady Hale, has set out the terms of the relevant legislation. Before the tribunal, the Chief Constable conceded that, but for section 7 of the 1975 Act, he would have unlawfully discriminated against Ms A on the ground of her sex by refusing to offer her employment: sections 1 and 6(1)(c). His position was, however, that section 6(1)(c) did not apply in this case since it was excluded by the existence of a genuine occupational qualification in terms of section 7.
21. My Lords, examination of the terms of section 7 soon shows that they were not drafted with the present kind of case in mind. In the first place, standing back, I find it impossible to say that being a man, as opposed to a woman, or vice versa, is a genuine occupational qualification for the office of police constable. Both men and women hold that office. More particularly, section 7(2)(b) provides that being a man, or being a woman, is a genuine occupational qualification "only where" the job needs to be held by a man, or a woman, to preserve decency or privacy. But, again, the office of police constable does not require to be held by a man, as opposed to a woman, or by a woman, as opposed to a man, in order to preserve decency or privacy. Here too, the fact that there are many officers of both sexes disproves any such suggestion. Indeed, section 54(9) of PACE presupposes that there will be officers of both sexes. Male officers search male suspects and female officers search female suspects, but otherwise they are employed on the same terms and have the same duties just as, in practice, in many department stores selling clothes for both men and women, male assistants may be asked to measure male customers and female assistants female customers, but otherwise the assistants are employed on the same terms to carry out the same duties.
22. In reality, what the Chief Constable is arguing in the present case is not that being a man, as opposed to a woman, or a woman as opposed to a man, is a genuine occupational qualification for being a police officer, but rather that, in terms of section 7(2)(b), the job of police officer needs to be held by a man who can decently search men or a woman who can decently search women. In my view, however, that involves reading into the provision an idea that is simply not to be found in the tightly drawn terms of section 7. This is hardly surprising since the section was drafted at a time when questions relating to transsexuals were not at the forefront of Parliament's attention. On the other hand, as I have already noted, in 1999, following the decision of the Court of Justice in P v S and Cornwall County Council  ICR 795, Parliament approved an order that amended the 1975 Act and supplemented section 7 with sections 7A and 7B. The first of these sections introduced an exception that corresponds to section 7, but makes specific provision for the employer to show that the treatment of the transsexual is reasonable in the circumstances: section 7A(l)(b). The second introduced certain further genuine occupational qualifications in the case of transsexuals, including a much broader one for jobs which simply "involve the holder of the job being liable to be called upon" to perform intimate physical searches pursuant to statutory powers: section 7B(2)(a). These amendments, which regulate the position today, cannot, of course, be used to construe the Act as it stood in 1998, but the fact that they were made does tend to confirm the conclusion that the Chief Constable's interpretation of section 7 is unsound.
23. Section 7 is to be regarded as an exercise of the United Kingdom's right, under article 2(2) of the directive, to exclude from its field of application those occupational activities for which the sex of the worker constitutes a determining factor. While the proper interpretation of article 2(2) is relevant to defining the limits within which a member state may choose to exclude the application of the directive, the very nature of the provision means that its terms do not provide the basis for adopting a broad interpretation of any exclusion that a member state has chosen to make. More particularly, nothing in article 2(2) would justify the House in adopting a generous interpretation of the terms of section 7 of the 1975 Act in favour of the Chief Constable. That being so, there is no question as to the interpretation of the directive which it is necessary for the House to decide in order to enable it to give judgment and hence no question which your Lordships are obliged to refer to the Court of Justice under article 234 EC: Srl CILFIT v Ministry of Health  ECR 3415, 3429, para 10.
24. I conclude that being a man, as opposed to a woman, or vice versa, is not a genuine occupational qualification for the job of police officer in terms of section 7(2)(b) of the 1975 Act. It follows that section 7(l)(a) is not engaged and that section 6(1)(c) applies to such employment. In that situation the Chief Constable accepts that he discriminated unlawfully by refusing Ms A's application to join the force. This is so even though, in my view, section 54(9) of PACE means that it would have been unlawful for Ms A to search female suspects and in practice she could not have searched and indeed would not have wanted to search male suspects. The Chief Constable did not regard this problem as an insuperable obstacle to employing Ms A, however, if only because such searches have to be carried out relatively infrequently. He was prepared to employ Ms A on the basis that she would not carry out any necessary searches and that he would make arrangements for other officers to perform them. In other words, the Chief Constable regarded it as a precondition for employing anyone as a police officer, either that he or she should be able to carry out searches, or that the Chief Constable should be free to make appropriate arrangements for other officers to carry out the searches that would ordinarily have fallen to the officer in question. That was the only relevant occupational qualification for the job. Chief Constables in other forces appear to have adopted the same pragmatic, or proportionate, approach. Since it was therefore not in fact a precondition of employing Ms A that she should be able to search female persons in terms of section 54(9) of PACE, there was no bar to her being allowed to join the force by reason of that section and no issue as to its interpretation in the light of the directive arises. The decision of the Court of Justice in KB v National Health Service Pensions Agency and Secretary of State for Health Case C-117/01  IRLR 240 is distinguishable.
25. While the Chief Constable was happy to adopt this approach, he perceived that Ms A herself had placed a major obstacle in its way. Making arrangements for other officers to carry out any searches of women would have meant that, sooner or later, Ms A's transsexuality would have become known to her colleagues and, therefore, more widely. The Chief Constable understood that she was anxious that this should not happen and he attached importance to that concern in deciding that he could not offer her employment. But the logic of the directive, and of the 1975 Act, must be that, while a Chief Constable who is the equivalent of an employer for these purposes - is not entitled to refuse to employ a transsexual as a police officer on the ground of her sex, equally, she is not entitled, except as provided by the legislation, to insist that she be employed in a different way on the ground of her sex. More particularly, she cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that he be employed in such a way that his homosexuality or dyslexia is kept confidential in all circumstances. Of course, the Chief Constable should not compromise the officer's privacy by revealing the matter in question when there is no good reason to do so. But, equally, an officer cannot insist that his or her Chief Constable should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential. More generally, the Chief Constable must be free to take all appropriate decisions relating to the deployment of the officer even if, in consequence, the matter becomes known. It would have been open to the Chief Constable to explain this to Ms A and to indicate that he was prepared to accept her application to join the force on this basis. Ms A would then have had to choose whether to go ahead and join. According to the position adopted by her counsel in the Court of Appeal and before this House, she recognises that this would have been a proper approach for the Chief Constable to take.