A v Chief Constable of West Yorkshire (2004)

Background

A v Chief Constable of West Yorkshire (2004) Background

A male-to-female transsexual applied for a job in the police force in 1998 but her application was rejected on the grounds that she could not comply with the requirements in s54(9) PACE 1984 that ‘the constable carrying out a search shall be of the same sex as the person searched’.

The case

The police force admitted that it had treated A less favourably on the ground that she is a transsexual, but claimed that it had not acted unlawfully, relying on the genuine occupational requirement condition within the meaning of S.7(2)(b)(i) SDA, saying it was an occupational requirement that someone who was not trans would have to be hired.

Held by the employment tribunal

The tribunal noted that an employer can rely on S.7(2)(b)(i) where being of one sex is a genuine occupational requirement for a job because, ‘for reasons of decency or privacy, people ‘might reasonably object’ to a task involving physical contact being carried out by a person of the opposite sex’. The tribunal accepted that ‘there are many people in our society who would have religious, cultural or moral objections to being searched by a transsexual’. In its view, however, these did not amount to reasonable objections for the purposes of S.7(2)(b)(i), meaning that the GOQ defence was not available to the Force in this case. This was overturned by the EAT on application by the police force.

Held on appeal

A successfully appealed the EATs judgement. The Court of Appeal held that the European Convention on Human Rights should be read into domestic law through the Equal Treatment Directive. In particular, it held that the Directive had to be read in the light of Goodwin v United Kingdom. In that case the European Court of Human Rights found that the United Kingdom, in not recognising a male-to-female transsexual as legally female, had failed to respect her right to private life in breach of Article 8 of the European Convention on Human Rights.

Held on appeal at the house of lords

Next the police force appealed to the house of lords

The House of Lords held that the Chief Constable discriminated against a job applicant contrary to the Sex Discrimination Act 1975 (now repealled by the equality act) by refusing her employment on the ground that, as a transsexual, she could not carry out searches of persons in custody. They said that the applicant should be treated as if she were a woman.

In Lord Bingham of Cornhill’s opinion, the issue did not turn on the Goodwin case since the Convention was not in force in March 1998. The SDA had to be interpreted in line with the EC equality law (the Equal Treatment and Equal Pay Directives, and Article 141 of the EC Treaty), with the result that the expression ‘the same sex’ in S.54(9) of PACE and the words ‘man’, ‘men’ and ‘woman’ in Ss.1, 2, 6, and 7 of the SDA had to be read 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.

Baroness Hale of Richmond held that the instant appeal turned on the rights of a transsexual under the Equal Treatment Directive in March 1998, rather than upon domestic law or the impact of the Goodwin decision. In P v S the ECJ held that in gender reassignment cases it is necessary to compare the applicant’s treatment with that afforded to a member of the sex to which he or she used to belong. Accordingly, for the purposes of discrimination between men and women in the fields covered by the Directive, a transsexual person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned. Applying that reasoning to the instant case, it followed that A had to be recognised in her reassigned gender for the purposes of assessing her ability to carry out the duties of a police constable.