A (Respondent) v. Chief Constable of West Yorkshire Police (Appellant) and another
52. But the House in Bellinger was concerned only with capacity to marry and in particular with the meaning of the words 'respectively male and female' in section 11(c) of the Matrimonial Causes Act 1973. These presuppose two clearly distinguished genders. It is less clear why the immutability of birth gender for marriage purposes should apply for all other purposes, in particular to those criminal offences which used to depend upon the gender of the accused or the victim. Many of those distinctions were of historical origin having nothing to do with the different physical characteristics of the people concerned. It was a nonsense at the time of Tan that the offence of living on the immoral earnings of a prostitute could only be committed by a man and scarcely surprising that the Court of Appeal found it convenient to apply the Corbett reasoning in that case. On the other hand, insofar as criminal offences did depend upon sexual differences, it might be thought that the physical differences which enabled the various acts to be performed were more important than chromosomal similarities, so that a female to male trans person might be guilty of rape (as originally defined) and a male to female transsexual might be its victim. For present purposes, it is unnecessary to decide the point. The Sexual Offences Act 2003 adopts a gender neutral approach which makes it much less important irrespective of the Gender Recognition Bill.
53. As to the European Convention on Human Rights, the Court in Goodwin held that the refusal of domestic law to recognise the reassigned gender 'no longer falls within the United Kingdom's margin of appreciation'. But it would be for the United Kingdom to decide how to fulfil its obligation to secure to trans people their right to respect for their private life and their right to marry. Goodwin was clearly intended to operate prospectively rather than retrospectively. The Human Rights Act 1998 is only retrospective to the limited extent provided for in the Act. Hence, the House decided in Bellinger that neither could be used to legitimate a marriage which had taken place in 1981. For the same reason, I agree with the Secretary of State that the Goodwin decision did not require that the Equal Treatment Directive be interpreted as if Goodwin had been the law from the moment the Directive came into effect.
54. However, this clearly does not preclude a decision that the Directive is indeed to be interpreted as requiring that trans people be recognised in their reassigned genders for the purposes covered by the Directive. The general rule is that the interpretation given to a rule of community law 'clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force'. Temporal restrictions can only exceptionally be allowed by the Court of Justice and then without prejudice to individuals who had already made a claim: see Defrenne v Sabena  ICR 547, paras 69 to 75; Amministrazione delle Finanze v Salumi  ECR 1239, para 11. The human rights values which led to the decisions in B v France in 1992 and Goodwin in 2002, as well as to the many Commission decisions and dissenting opinions, also underpin the EC legislation.
55. What interpretation is then to be given to the Directive? This depends upon the two decisions of the Court of Justice referred to earlier. In P v S and Cornwall County Council  ECR 1-2143, the applicant was dismissed from her employment as a manager in an educational establishment because she was undergoing male to female gender reassignment treatment and surgery. She notified her superiors of her intention to do so. She was given notice after it had begun and the final operation was performed during her notice period. She brought proceedings for sex discrimination. These were resisted on the ground that a female to male trans person would have been treated in the same way. The Court pointed out that 'the directive is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of community law' (para 18); and that 'the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure' (para 19). It continued:
56. It might be possible to regard this as simply a decision that discrimination on grounds of transsexuality is discrimination 'on grounds of sex' for the purpose of the Directive. But there are many reasons to think that it is not so simple. The purpose of the Directive, set out in Article 1(1), is to 'put into effect in the Member States the principle of equal treatment for men and women . . . ' The opinion of Advocate General Tesauro was emphatic that 'transsexuals certainly do not constitute a third sex, so it should be considered as a matter of principle that they are covered by the directive, having regard also to the above-mentioned recognition of their right to a sexual identity'. The 'right to a sexual identity' referred to is clearly the right to the identity of a man or a woman rather than of some 'third sex'. Equally clearly it is a right to the identity of the sex into which the trans person has changed or is changing. In sex discrimination cases it is necessary to compare the applicant's treatment with that afforded to a member of the opposite sex. In gender reassignment cases it must be necessary to compare the applicant's treatment with that afforded to a member of the sex to which he or she used to belong. Hence the Court of Justice observed that the transsexual 'is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.' Thus, for the purposes of discrimination between men and women in the fields covered by the directive, a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned.
57. That this is the correct interpretation of P v S emerges clearly from the recent decision in KB v National Health Service Pensions Agency and Secretary of State for Health (Case C-117/01)  IRLR 240. The female applicant complained that the denial of a widower's pension to the female to male trans person, with whom she had celebrated what would have been a marriage had it been possible in English law, was sex discrimination contrary to the principles of equal pay contained in Article 141 of the EC Treaty and the Equal Pay Directive 75/117. The Court of Justice had earlier held that it is permissible to withhold such benefits from unmarried partners, including those in homosexual relationships who are also not permitted to marry by English law: see Grant v South West Trains Ltd (Case C-249/99)  ECR I-621; D and Sweden v Council (Case C-125/99)  ECR I-4319. The question was whether the prohibition of trans people marrying in their reassigned gender was in the same category, and thus not sex discrimination because it applied equally both ways, or whether it was discrimination on grounds of sex. P v S showed that this was sexual discrimination. The only difference in this case was that it related to one of the pre-conditions for the enjoyment of a community right rather than directly to the right itself. This made no difference. Hence in principle it was incompatible with Article 141. But since the conditions for the recognition of gender reassignment had been left to the national authorities in Goodwin, it was for the national court to determine whether the applicant could rely on Article 141 to gain recognition of her right to nominate her partner as the beneficiary of a survivor's pension.
58. This decision confirms the right of the trans person to be recognised in the reassigned gender, not only for the purpose of the direct enjoyment of community rights, but also for the purpose of the pre-conditions of such a right. This must have an effect upon the proper approach to the question of 'genuine occupational qualification' under section 7 of the 1975 Act, which in turn rests upon the legality of searches under section 54 of PACE. Article 2(2) of the Equal Treatment Directive allows member states to exclude '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.' But article 2(2) is a derogation from an individual right which must be interpreted strictly and in accordance with the principle of proportionality: see Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84)  QB 129, paras 36, 38.
59. If in principle the trans partner of an employee must be recognised in the reassigned gender for the purpose of death benefits, the employee herself must in principle be recognised in the reassigned gender for the purpose of carrying out the duties of the post. This means that section 54(9) of PACE must be interpreted as applying to her in her reassigned gender, unless, as was acknowledged in P v S, there are strong public policy reasons to the contrary. It is difficult to argue that such public policy reasons existed in this case even in 1998. Intimate searches were expressly recognised as a supplementary genuine occupational qualification under section 7B of the 1975 Act, but the Chief Constable accepts that they do not present a practical problem to which exclusion from the Force would be a proportionate response. If the Gender Assignment Bill becomes law, they will cease to be recognised as such at all. Section 54 searches were not expressly recognised in section 7B, which was introduced in 1999 but in response to the decision in P v S in 1996. This is not surprising. By that time, the United Kingdom authorities were already doing everything they could to enable a trans person to live a normal life in her reassigned gender. There are many occupations which involve physical contact with members of the opposite sex. Although these are not usually in the circumstances of compulsion entailed in a section 54 search, they are often not truly voluntary - as for example in hospital wards where there are doctors and nurses of both sexes. And there are some, such as compulsory hospital patients, who have no choice. We generally depend upon the professionalism of the individual, backed up by the ordinary law and complaints mechanisms, to protect people's sensibilities. Those sensibilities may be rational as well as real. For example, it may well be rational to object to being nursed by a heterosexual person of the opposite sex. It may also be rational to object to being nursed by a homosexual person of the same sex. But it would not be rational to object on similar grounds to being nursed by a trans person of the same sex. In those circumstances it is not surprising that the Employment Tribunal held that an objection to being searched by a trans person would not be reasonable.
60. Until the matter is resolved by legislation, there will of course be questions of demarcation and definition. Some of these, for the reasons explained in Bellinger, will be sensitive and difficult. That is presumably why the Court of Justice in KB acknowledged the role of the national court in deciding whether the principle did in fact apply in the particular case. One can well envisage a person who claims to have gender dysphoria but who has not successfully achieved the transition to the acquired gender. (One could also envisage a relationship which was not as close to marriage as the relationship in that case.) The Gender Recognition Bill provides a definition and a mechanism for resolving these demarcation questions. But until then it would be for the Employment Tribunals to make that judgment in a borderline case.
61. In this case, however, Ms A has done everything that she possibly could do to align her physical identity with her psychological identity. She has lived successfully as a woman for many years. She has taken the appropriate hormone treatment and concluded a programme of surgery. She believes that she presents as a woman in every respect.
62. She meets entirely the plea of Advocate General Ruiz-Jarabo Colomer in KB, at para 79:
63. In my view community law required in 1998 that such a person be recognised in her reassigned gender for the purposes covered by the Equal Treatment Directive This conclusion does not depend upon Goodwin and this case can readily be distinguished from Bellinger. I would dismiss this appeal.