Chief Constable of West Yorkshire Police v A (No 2)
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL |
| Judgment Date | 06 May 2004 |
| Neutral Citation | [2004] UKHL 21 |
| Court | House of Lords |
| Date | 06 May 2004 |
[2004] UKHL 21
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
and another
My Lords,
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.
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.
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 [1971] 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 [1983] 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.
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.
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.
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
"unreasonable to require the [chief constable] to employ [Ms A] as a police constable if in law and fact she could not carry out the full range of a police constable's duties."
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.
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.
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.
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) [1996] 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) [2004] 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 Sociètè Bautiaa v Directeur des Services Fiscaux des Landes ( Cases C-197/94 and C-252/94) [1996] ECR I-505, para 49).
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.
In reaching this conclusion, I do not intend to question or derogate from the very recent decision of the House in Bellinger v Bellinger [2003] 2 AC 467, affirming the decision in Corbett v Corbett ...
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