A (Respondent) v Chief Constable of West Yorkshire Police (Appellant) and another [2004] UKHL 21

In brief

The House of Lords dismissed the Chief Constable of West Yorkshire Police's appeal against a finding that he had unlawfully discriminated against Ms A, a post-operative trans woman, by refusing in March 1998 to employ her as a constable on the ground that she could not perform the full range of searching duties required under section 54(9) of the Police and Criminal Evidence Act 1984 (PACE) [1]-[5]. Lord Bingham, with whom Baroness Hale, Lord Steyn and Lord Carswell agreed, held that EC law — the Equal Treatment Directive 76/207/EEC, as construed by the European Court of Justice in P v S and Cornwall County Council — required a post-operative trans person to be treated in her reassigned gender for the purposes of employment covered by the Directive; accordingly 'the same sex' in section 54(9) PACE and the sex-discrimination terms of the Sex Discrimination Act 1975 had to be read as referring to Ms A's acquired gender [11], [56], [63]. This did not depend on the Human Rights Act 1998 or Goodwin v United Kingdom, which operated prospectively [13], [53], and did not disturb Bellinger v Bellinger, a marriage case with no EC law dimension [12], [41]-[42]. Lord Rodger reached the same result by a domestic-law route alone: being male or female is not itself a genuine occupational qualification for the office of constable, so the section 7 exception in the 1975 Act did not apply [21], [24]; he added that an officer cannot lawfully be required to keep her trans history confidential in all circumstances, nor refused employment, nor compelled to disclose it, on that ground [25]. The appeal was dismissed by all five members of the Appellate Committee [14], [15], [63], [64].

Key provisions

• §11, §56, §63 — EC law required recognition in the acquired gender for Directive-covered employment, including PACE searching duties : [11] Lord Bingham: effect can be given to the clear thrust of Community law only by reading 'the same sex' in section 54(9) PACE, and 'woman', 'man' and 'men' in 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; [56] Baroness Hale: for discrimination purposes under 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'; [63] this was the position in EC law as at 1998, for the purposes covered by the Equal Treatment Directive.
• §21, §24 — Being male or female is not, without more, a genuine occupational qualification for a police constable : [21] the office of constable does not require to be held by a man, as opposed to a woman, or vice versa, to preserve decency or privacy; [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', so the exception did not apply and the Chief Constable accepted he discriminated unlawfully.
• §25 — An employer cannot compel disclosure of, or refuse employment on the ground of, an employee's trans history : [25] a Chief Constable must be free to make deployment decisions even where this incidentally reveals an officer's trans history, and should not compromise the officer's privacy by revealing it when there is no good reason to do so; equally, an officer cannot insist that her Chief Constable act unlawfully, or be refused employment, or be compelled to disclose it, on the ground of her trans history.
• §12, §41-42 — Distinguished from Bellinger v Bellinger (capacity to marry) : [12] Lord Bingham: the House did not question or derogate from Bellinger v Bellinger [2003] 2 AC 467, which concerned marriage and 'lacked any Community dimension, so that P v S was not cited and there was no need to consider it'; [41]-[42] Baroness Hale: Bellinger was concerned only with capacity to marry, a different question, decided in the knowledge that comprehensive legislative reform (the Gender Recognition Bill) was in progress.
• §13, §53, §63 — The decision rests on EC law, not on the Human Rights Act or a retrospective reading of Goodwin : [13] Lord Bingham declines to rely, as the Court of Appeal did, on Goodwin v United Kingdom, because Goodwin was 'essentially prospective in character' and the Human Rights Act 1998 was not generally retrospective; [53] Baroness Hale reaches the same view; [63] 'This conclusion does not depend upon Goodwin.'

When relevant

Employment and police-powers context, decided under the Sex Discrimination Act 1975 and PACE 1984, both before the Gender Recognition Act 2004 and the Equality Act 2010 existed. Chiefly of historical and doctrinal interest now: it is the leading illustration of the gap trans employees faced before domestic gender-recognition legislation, and of how EC law filled that gap for employment purposes covered by the Equal Treatment Directive [11], [54]-[59], [63]. Relevant when: (i) explaining the legal history that led to the Gender Recognition Act 2004 and current Equality Act 2010 protection; (ii) illustrating that an employer cannot make disclosure of an employee's trans history a condition of employment [25]; (iii) illustrating that a genuine occupational requirement defence needs a real, specific justification and is not met merely by asserting that a role 'needs' to be held by one sex [21], [24]. The directly affected population is applicants for appointment as police constables and the Chief Constable treated as their employer under the historical statutory scheme [1], [32]; people searched in police custody are also affected by the search provision discussed [32], [59], but this was Ms A's recruitment discrimination claim [1]. Coverage gap named: the toolkit does not hold the Sex Discrimination Act 1975, the Sex Discrimination (Gender Reassignment) Regulations 1999, PACE 1984, or the Equal Treatment Directive case law (beyond the catalogue records cross-referenced below) as separate catalogue records; verify on cite. This record does not state, and the judgment does not address, how its EC-law reasoning sits with current UK law after EU withdrawal — that question is not answered here. Decision support, not legal advice.