(back to preceding text)

      For these reasons I would dismiss the Chief Constable's appeal.

THE BARONESS HALE OF RICHMOND

My Lords,

    26.  Ms A is a trans person. She does not consider that she has ever been male. She has lived for many years entirely successfully as a female, both before and after she underwent gender reassignment surgery in 1996. The people among whom she lives have never known her as anything else. The issue is whether it was lawful in March 1998 for the Chief Constable of West Yorkshire Police to refuse her application to join the Force as a woman.

    27.  She decided to apply to become a police officer in December 1996. After consulting the Force Medical Officer, she was completely open in her application form about her status and the treatment she had undergone. She was informed in April 1997 that full consideration had been given to her application and the points she had raised and the Force was happy for it to proceed. She successfully completed a Recruit Assessment in July 1997 and a further assessment and physical fitness test at the Police Training School in September. Background enquiries were then made. Becoming concerned at the apparent delay in proceeding to the final stages of the recruitment process, she wrote in November 1997 specifically drawing attention to the provisions of the Police and Criminal Evidence Act 1984 relating to police searches. In January 1998 she had a discussion with the Force equal opportunities officer who reassured her that trans people were allowed to serve as police officers although there would be occasions when they were not allowed to search. Still having heard nothing, she wrote again in February 1998. On 9 March 1998 she received the following reply:

"I regret to inform you that since your initial application to join this Force, the issue of transsexual applicants has been further considered and the decision has been made that transsexuals will not be appointed to the Force.

The decision has been made on the basis that candidates will not be appointed unless they are capable of performing the full duties of a Police Constable. Unfortunately, as you are already aware, legislation affects the carrying out of searches on persons in custody by transsexuals and, therefore, you would not be able to undertake full duties."

    28.  The question, therefore, is whether this was unlawful discrimination on grounds of sex. The Force has admitted, ever since its response to her SD74 questionnaire in April 1998, that it did discriminate against her on the grounds of her transsexuality but contends that this was not unlawful. Domestic law does not yet recognise gender reassignment. Ms A has therefore to be regarded as a man. As a man she cannot carry out routine searches upon women. As a person who presents to all practical purposes as a woman, she cannot search men. The ability to carry out searches is a genuine occupational qualification for the office of constable. Hence it was lawful to discriminate against her.

    29.  As is so often the case, the way in which the arguments were put has evolved in the course of these proceedings, not least because there have been significant developments in domestic and European law, including the decision of the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR 18 while they were going on. As timing plays a considerable part in the arguments presented to us, it may be helpful to sketch the development of the law in roughly chronological order. Much fuller accounts of these developments, and of the medical and scientific background, can be found in the reports of the decisions of Court of Appeal and House of Lords in Bellinger v Bellinger [2001] EWCA Civ 1140; [2002] Fam 150; [2003] UKHL 21; [2003] 2 AC 467.

    30.  In the well-known case of Corbett v Corbett (orse Ashley) [1971] P 83, Ormrod J held that, for the purpose of the law of capacity to marry, the sex of a person was fixed at birth. Accordingly a purported marriage in 1963 between a man and a male to female trans person was void ab initio. Shortly after this, the Nullity of Marriage Act 1971 provided that a marriage taking place after 31 July 1971 is void on the ground 'that the parties are not respectively male and female.' This was later consolidated as section 11(c) of the Matrimonial Causes Act 1973. The same approach was adopted by the Court of Appeal in R v Tan [1983] QB 1053 for the gender specific offences in the Sexual Offences Acts. The Court considered that 'both common sense and the desirability of certainty and consistency' demanded that the Corbett decision should apply in both contexts. Since then, it has been assumed that a person's gender is fixed at birth for the purpose of all legal provisions which make a distinction between men and women. Corbett was followed without challenge in S-T (formerly J) v J [1998] Fam 103.

    31.  The relevant provisions of the Sex Discrimination Act 1975, as they stood in 1998, are as follows:

"1  Direct and indirect discrimination against women

    1)  In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if -

    a)  on the ground of her sex he treats her less favourably than he treats or would treat a man, . . .

    . . .

    5  Interpretation

    . . .

    3)  A comparison of the cases of persons of different sex or marital status under section 1(1) . . . must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

    6  Discrimination against applicants and employees

    1)  It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

    a)  in the arrangements he makes for the purpose of determining who should be offered that employment, or

    b)  in the terms on which he offers her that employment, or

    c)  by refusing or deliberately omitting to offer her that employment.

    . . .

    7  Exception where sex is a genuine occupational qualification

    1)  In relation to sex discrimination -

    a)  section 6(1)(a) or (c) does not apply to any employment where being a man is a genuine occupational qualification for the job, . . .

    2)  Being a man is a genuine occupational qualification for a job only where -

    . . .

    b)  the job needs to be held by a man to preserve decency or privacy because -

    i)  it is likely to involve physical contact with men in circumstances where they might reasonably object to its being carried out by a woman, or

    ii)  the holder of the job is likely to do his work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities."

    32.  By section 17 of the 1975 Act, holding the office of constable is treated as employment by the Chief Constable. Searching people is an integral part of the duties of a constable. But there are different kinds of search, roughly falling into three categories:

    (1)  At one extreme are the various powers to search people without first arresting them. By virtue of section 2(9) of the Police and Criminal Evidence Act 1984 (PACE), these do not permit 'a constable to require a person to remove any of his clothing in public other than an outer coat, jacket and gloves.'

    (2)  At the other extreme is an 'intimate' search, which may be authorised under section 55. By section 65(1), this means 'a search which consists of the physical examination of a person's body orifices other than the mouth'. By section 55(5) this has to be done by a doctor or nurse unless this is impracticable, in which case it may be done by a constable, but by section 55(7) 'A constable may not carry out an intimate search of a person of the opposite sex.' Intimate searches are extremely rare and such searches by constables are even rarer. It is now common ground that this provision does not present an obstacle to the employment of a trans person as a police officer.

    (3)  In the middle are searches, under section 54 of the Act, of people who have been arrested or committed to custody by a court. By section 54(8), these searches must be carried out by a constable and by section 54(9), that constable 'shall be of the same sex as the person searched'.

    33.  On the face of it, therefore, if Ms A is still a man for the purpose of all legal provisions distinguishing between the sexes, she cannot carry out a search covered by section 54(9) or 55(7) upon a woman. And because to all intents and purposes she is a woman, a man might reasonably object to her carrying out a search upon him.

    34.  The Sex Discrimination Act 1975 anticipated the EEC Council Directive 76/207/EEC, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions (the 'Equal Treatment Directive'). By Article 1(1) of the Directive:

"The purpose of the Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as the principle of equal treatment."

    By Article 2:

    "(1) … the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

    (2) This Directive shall be without prejudice to the rights of member states to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, 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."

    35.  In P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, delivered on 30 April 1996, the European Court of Justice held that it was contrary to the Equal Treatment Directive to dismiss a person on the ground that they proposed to undergo or had undergone gender reassignment. This was discrimination based on sex. It will be necessary to return to the reasoning of the Court and the Advocate General, but it should be noted that the case was decided before the act of discrimination complained of in this case. The same principle has recently been held to apply to the conditions governing entitlement to pay and related benefits, in KB v National Health Service Pensions Agency (C-117/01) [2004] IRLR 240.

    36.  P v S led to the Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999/1102. These amended the 1975 Act. A new section 2A was added to deal with less favourable treatment on grounds of gender reassignment in relation to those areas covered by the Equal Treatment Directive. Section 7A made a corresponding exception where being a man or being a woman was a genuine occupational qualification for the job. Section 7B created supplementary genuine occupational qualifications, the only relevant one of which is in section 7B(2)(a): 'the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers.' Other types of search are not referred to.

    37.  It is remarkable that, in each of the cases brought by trans people under the European Convention on Human Rights, the European Commission on Human Rights found a breach of a relevant article, whereas the Court has been slower and more selective in taking that view. As long ago as 1979, in D Van Oosterwijk v Belgium (Applic No 7654/76), the Commission found that the refusal of Belgium to enable the registers of civil status to reflect lawful sex-changes violated the right to respect for private life in article 8. In Rees v United Kingdom (1986) 9 EHRR 56, the European Court of Human Rights, by a majority of 12 to 3, held that the refusal of the United Kingdom to issue a new birth certificate to a post operative trans person was not in breach of its positive obligations under Article 8. The Court was strongly influenced by the fact that in this country birth registration is regarded as a matter of historical record but that thereafter a trans person can be issued with a driving licence and passport in the new name and title and thus present himself in the new gender for many practical purposes. The Court took the same view in Cossey v United Kingdom (1990) 13 EHRR 622, but this time by the slender majority of 10 to 8. There was a powerful dissent by Judge Martens, pointing to the increasing legislative and judicial recognition of trans people in European states and elsewhere and to the fundamental human rights involved which in his view should not be defeated by technicalities (p 648, para 2.7):

"The principle which is basic in human rights and which underlies the various specific rights spelled out in the Convention is respect for human dignity and human freedom. Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality. A transsexual does use those very fundamental rights. He is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to. After these ordeals, as a post-operative transsexual, he turns to the law and asks it to recognise the fait accompli he has created . . . . This is a request which the law should refuse to grant only if it truly has compelling reasons, for . . . such a refusal can only be qualified as cruel. But there are no such reasons."

    38.  In contrast, in B v France (1992) 16 EHRR 1 the Court by a majority of 17 to 1 found France to be in breach of article 8 by refusing to recognise the reassigned gender. French people are required to carry identity cards at all times, so the degree of interference with the trans person's right to respect for her private life was much greater than in the United Kingdom. The European Court of Justice's decision in P v S came next.

    39.  Then in 1997, the European Court of Human Rights, in X, Y and Z v United Kingdom (1997) 24 EHRR 143 refused to find that the failure of United Kingdom law to recognise a female to male trans person as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for their family life under article 8. This trend was continued, shortly after the Chief Constable's decision in this case, in Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, where the Court, by a majority of 11 to 9, again found no violation in the refusal to recognise the reassigned gender. By this stage, 37 out of the 41 member states of the Council of Europe recognised trans people in their reassigned gender. The United Kingdom was said to be alone in allowing (and even funding) gender reassignment treatment and surgery but failing to recognise its results.

    40.  But in all these cases, the Court emphasised that times were changing, and that member states should keep the matter under review, as there might come a time when they would no longer enjoy a margin of appreciation. The United Kingdom had until then failed to heed such warnings, but in April 1999 the Home Secretary set up an interdepartmental working group. This reported in April 2000 and suggested putting the three options identified out to public consultation. To the dismay of the Court of Appeal in Bellinger v Bellinger [2001] EWCA Civ 1140; [2002] Fam 150, para 96, this was not done. A year later, in Goodwin v United Kingdom (2002) 35 EHRR 18, the European Court of Human Rights unanimously found that English law was in breach of both article 8 and article 12.

    41.  Following Goodwin, this House declined, in Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467, to read and give effect to section 11(c) of the Matrimonial Causes Act 1973 so as to recognise the validity of a purported marriage in 1981 between a man and a male to female trans person. At the time the marriage had taken place, European Convention law did not require us to recognise the trans person's reassigned gender. The Goodwin decision was prospective in nature, requiring the United Kingdom to change its law for the future. This raised many difficult questions, in particular of definition and proof, which were better dealt with by Parliament. But until then, as our law no longer complied with the Convention, it was appropriate to make a declaration that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with the Convention rights. P v S was cited and referred to without comment by the Court of Appeal in Bellinger but appears not to have been cited to the House of Lords.

    42.  The Gender Recognition Bill is currently before Parliament. This lays down a comprehensive scheme for recognising the reassigned gender of a trans person in defined circumstances. These are wider than the post-operative conditions with which the domestic and European case law has been concerned. Once recognised, the reassigned gender is valid for all legal purposes unless specific exception is made. It will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live.

    43.  Ms A applied in May 1998 to an Employment Tribunal complaining of sex discrimination. On 18 March 1999, the Tribunal decided unanimously that the refusal to offer her employment as a constable was unlawful under the Sex Discrimination Act. The Tribunal found (para 10) that Ms A had applied to this particular force 'because it was away from the area in which she lived but was accessible to it. In order to function normally in society, she needs to conceal the fact that she is a transsexual. She is willing, however to disclose that fact to those who need to know it for whatever purpose'. They also found (para 30) that 'searching is an integral part of being a police constable. It is what the respondent describes as a core competency . . . Further, we find that it would be objectively unreasonable to require the respondent to employ the applicant as a police constable if in law and fact she could not carry out the full range of a police constable's duties.' They accepted 'that there are many people in our society who would have religious, cultural or moral objections to being searched by a transsexual.' But they continued, at para 33:

"Whilst respecting these objections, we do not think that they are contemplated by the expression 'might reasonably object' [in section 7(2)(b) of the 1975 Act]. . . . Given the application of the principle of equal treatment, we cannot see that there is any obligation upon the respondent to disclose to anyone that the applicant is transsexual. . . The respondent also employs officers who are known to be homosexual. . . . Again there are persons who for cultural or moral reasons might object to being searched by a homosexual. The common factor in such an objection is knowledge, something of which the suspect or prisoner is rightly deprived."

    44.  After dismissing as negligible the risk of criminal or civil liability for assault, they concluded (para 37):

"We return to the principle of proportionality. We are required to reconcile the principle of equal treatment as far as possible with the requirement of full operational policing. In our judgment, the risks to the respondent in permitting the applicant as a transsexual to carry out the full range of duties including the searching of women are so small that to give effect to them by denying the applicant access to the office of constable would be wholly disproportionate to the denial of the applicant's fundamental right to equal treatment."

    45.  The Employment Appeal Tribunal (reported as West Yorkshire Police v A (No 2) [2002] ICR 552) held that the job did need to be held other than by a transsexual to preserve decency or privacy. Once it had been accepted that there were people with objections to being searched by a transsexual, these could not simply be dismissed on the basis that they were not reasonable. The police could not be involved in the deception of concealing the facts and the alternative of giving special instructions would destroy the privacy sought by the applicant.

    46.  By the time the case reached the Court of Appeal in October 2002 (reported at [2003] ICR 161), the European Court of Human Rights had decided the case of Goodwin: the refusal of English law to recognise the applicant's gender reassignment was, in the absence of significant factors of public interest, a breach of her rights under articles 8 and 12 of the European Convention on Human Rights. The Court of Appeal allowed Ms A's appeal on the basis that the Convention jurisprudence was read into domestic law through the medium of the Equal Treatment Directive. If, in the light of Goodwin, the Chief Constable was bound to treat Ms A as female, it was not open to him to discriminate against her on the basis that she was a transsexual and no possibility of invoking section 7 of the 1975 Act could arise. Buxton LJ, however, pointed out that article 8 rights were not absolute, so that there might be countervailing factors of public interest. The court could give weight to the difficulties perceived by the Chief Constable but he had on obligation to manage his force in such a way as to avoid situations arising which would threaten the individual's article 8 interests. This might not be possible if the individual insisted on her transsexuality remaining undisclosed. But it had been made clear in the course of the hearing that she had no objection to colleagues generally, and if need be members of the public with whom she dealt, knowing of her transsexuality. Accordingly that problem did not arise.

    47.  The Secretary of State for Trade and Industry has intervened in this appeal. She has ministerial responsibility for the Sex Discrimination Act 1975 and the implementation of EC law on sex discrimination in domestic law. Her main concern, as Mr Rabinder Singh QC made plain on her behalf, was with the reasoning in the Court of Appeal on the interplay between the European Convention on Human Rights and the Equal Treatment Directive. The Goodwin decision was plainly prospective, as this House held in Bellinger. Yet because the normal rule is that decisions on the interpretation of EC legislation operate ex tunc, the Court of Appeal held that the Goodwin decision required that the Equal Treatment Directive be interpreted in the light of Goodwin. Mr Singh accepts that it would have been possible so to interpret it before then, based upon the human rights values which underpin the EC treaties. His quarrel is with the suggestion that Goodwin required this result. In the light of the Gender Recognition Bill, currently before Parliament, there is no policy objection to regarding Ms A as female for all purposes, including intimate searches. Nor would it be inconsistent with the wider ranging provisions in the Bill for us to hold that European Community law required that it be anticipated in this respect.

    48.  Mr David Bean QC, on behalf of the appellant Chief Constable, also argues that it was wrong to give retrospective effect to Goodwin simply because the matter is governed by EC law. He accepts that if Ms A is to be treated as a woman for the purpose of section 54(9) of PACE she must succeed. But to do so she must displace the domestic law decided in Corbett and Tan. The Equal Treatment Directive and the cases of P v S and KB did not require this result.

    49.  Mr Nicholas Blake QC, on behalf of Ms A, accepts, as he has to do, that in the light of Bellinger, Corbett remains the domestic law on capacity to marry unless and until it is changed by the Gender Recognition Bill. He argues that it was open to this House to hold that Tan was not good law, so that even in domestic law gender reassignment might be recognised for some purposes and not for others. His principal submission, however, is that EC law required the Chief Constable to recognise Ms A's sexual identity as female for the purpose of appointment as a constable and of any domestic legislation restricting access to such appointment. His secondary submission is that a blanket policy of denying access could not satisfy the strict requirements for a genuine occupational qualification and in particular the principle of proportionality as an aspect of that concept.

    50.  In my view, the answer to this appeal must turn upon the rights of a trans person under the Equal Treatment Directive in March 1998, rather than upon domestic law or the impact of the Goodwin decision. Before turning to that issue, however, I would venture a few comments upon the other two.

    51.  As to domestic law, there might be good policy reasons for distinguishing between the different purposes for which the decision in Corbett may be invoked. Marriage can readily be regarded as a special case. True, it is perfectly possible to have a valid marriage between two people who cannot have children together. Also true, the fact that marriage law traditionally distinguished between husband and wife cannot be a conclusive argument against the marriage of two people who for all practical purposes are of opposite sexes. But marriage is still a status good against the world in which clarity and consistency are vital. In England, the Church has a role in celebrating marriages which means that special exceptions have to be made for people who are able to marry in civil but not ecclesiastical law. It is scarcely surprising that this House, in Bellinger, held that these difficult questions of definition, demarcation and impact upon others were for Parliament rather than the courts to decide.