England and Wales Court of Appeal, sentenza del 22 maggio 2010

Neutral Citation Number: [2010] EWHC 1162 (Admin)
Case No: CO/9250/2008

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/05/2010

Before :

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Between :


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Stephanie Harrison (instructed by Public Law Solicitors, Birmingham) for the Claimant
James Goudie QC and David Lock (instructed by Bevan Brittan, London EC4) for the Defendant
Helen Mountfield QC (instructed by the Solicitor, EHRC) for the Intervener

Hearing dates: 11-13 May 2010
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The Hon. Mr. Justice Bean :

1. The Claimant, who was born a man in 1951, was diagnosed as a transsexual in 1996 and started receiving hormonal treatment with a view to gender reassignment. Although the Claimant has not applied for a certificate under the Gender Recognition Act 2004, and thus remains legally a man, I shall refer to the Claimant as “she” or “her” in accordance with her wishes. In 1999 she changed to a female name. An anonymity order was granted at an early stage of the proceedings and remains in force.
2. The Claimant has been attempting for several years to obtain funding from the Defendants for breast augmentation surgery. By this claim she challenges decisions of the Defendants in 2006 and 2008 to refuse such funding, and the Defendants’ policies which gave rise to those decisions.
3. The claim was lodged on 30th September 2008. On 5th November 2008 Bennett J granted permission to apply for judicial review. In September 2009 the Equality and Human Rights Commissions (EHRC) applied for permission to intervene. Nicola Davies QC (as she then was) gave the commission leave to file written submissions. At the outset of the present hearing I asked for counsel to attend on behalf of the EHRC to supplement these by oral argument on the second day of the hearing.
4. The substantive application was originally to have been heard in October 2009. It was stood out of the list by consent upon the Defendants agreeing to reconsider their relevant policy and their decisions in the Claimant’s case. That reconsideration led to the policy and the previous decisions being maintained, and the claim was accordingly restored to the list for hearing.
The Claimant’s condition
5. The Claimant is a transsexual or trans person: that is to say, she has been diagnosed with what is variously called gender dysphoria or gender identity disorder (“GID”). Transsexuals constitute about 1 in 10,000 of the population of the UK, that is to say about 5,000 nationally. There are approximately 30 in Berkshire. I was not told how many of these were male to female, and how many were female to male transsexuals.
6. The PCT is prepared to commission what it describes as core GID services for her including genital reassignment surgery to enable the Claimant to become genitally female. She has not, at any rate so far, sought to have such surgery carried out.
7. As part of the treatment for GID the Claimant was provided with hormone therapy. Unfortunately the Claimant is one of the substantial minority of male to female transsexuals whose breast development as a result of hormone therapy is considered by them to be disappointing. The Claimant’s GP, Dr. Denny, wrote in 2006 that the Claimant had found that her lack of breasts made it “much more difficult for her to feel feminine. It tends to get her down although she does not have a history of significant depression.”
8. Dr. Barrett, her treating clinician, is a consultant psychiatrist specialising in GID. He wrote:
“As somebody who has changed her gender role, [AC] is considerably more sensitive around issues of physical appearance than most, and clearly adequate breasts are something which are important in producing an effective impression of the femininity she psychologically experiences.”
9. In response to a question about the health benefit of the treatment Dr. Barrett wrote, on 16 May 2008:
“The effect of her not having gone an augmentation mammoplasty is one of chronic mild to moderate distress probably best characterised as an adjustment disorder. Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.”
10. On 7th October 2008 Dr. Barrett wrote:
“I have to say that the self-consciousness has become quite marked as time has gone on, if for no other reason [than] that the patient has become increasingly focussed upon this issue and has become ever more psychologically invested in achieving the funding for an augmentation mammoplasty.”

The Defendants’ policies and funding priorities
11. The West Berkshire Primary Care Trusts (“PCT”) is one of nine in the South Central Strategic Health Authority area. The nine PCTs use the services of a non-profit NHS consultancy body called the Public Health Resource Unit (PHRU). One of its directorates, the Priorities Support Unit (PSU), is contracted to provide independent evidence-based advice to the Trusts concerning the clinical efficacy and cost-effectiveness of drugs and surgical procedures. The PSU in turn employs specialist consultants in public health medicine and other specialities. The Strategic Health Authority and PCTs in Berkshire also operate a Priorities Committee. The role of the PSU and the Priorities Committee is to advise the PCTs on the overall balance between competing treatments for different conditions, testing the evidence of clinical and cost effectiveness and seeking to make the best possible use of the limited resources of the NHS. They must do so against the background of sections 229(1) and 230(1) of the National Health Service Act 2006, which impose an absolute duty on a PCT to break even in each financial year.
12. The PSU produced what its director, Ms. Claire Cheong-Leen, described in her witness statement as an “evidence synthesis” on the management of gender dysphoria. This involved consideration of a very large number of background papers. A draft of the evidence synthesis was sent out to interested bodies and doctors for consultation. The reaction was generally favourable, although the Gender Identity Research and Education Society criticised some aspects of the policy. Dr Barrett responded to the consultation by writing that he was generally happy with the policy: he made some suggestions for amendments, but did not propose that breast augmentation for male to female transsexual patients should be included as a core procedure.
13. Both the draft document and the policy statement finally agreed by the Priorities Committee classified breast surgery as a non-core procedure. I must set out at this stage the July 2006 policy statement of the Priorities Committee on gender dysphoria in full:-
“Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction with their biological sex, and requests sex reassignment. Management can be lengthy and expensive and comprises assessment, psychotherapy, real life experience, hormonal therapy and surgery.
There is a clear consensus that equitable access to services for initial diagnostic assessment, hormone therapy and surgery is essential for those patients fulfilling the Harry Benjamin International Gender Dysphoria Association criteria.
There is no professional consensus on the classification of core and non-core procedures for gender reassignment.
There is limited evidence to suggest that gender reassignment surgery is effective. Much of the evidence in favour of or against gender reassignment surgery is of poor quality due to lack of standardised criteria for assessment and management.
For most gender reassignment surgical (GRS) procedures, several techniques have been described with varying degrees of complications and patient satisfaction reported. In view of the heterogeneity of surgical techniques, outcomes, complications and patient choice, it is not appropriate to recommend any particular technique or procedure for all patients.
There is no published evidence on the cost-effectiveness of gender reassignment surgery.
Core surgical procedures for male to female patients (MtF) are Penectomy, Orchidectomy, Vaginoplasty (including hair removal essential for vaginoplasty), Clitoroplasty, Labiaplasty. Core surgical procedures for female to male (FtM) patients are Mastectomy, Hysterectomy, Salpingo-Oophorectomy, Metoidioplasty, Phalloplasty, Urethroplasty, Scrotoplasty and placement of testicular prostheses.
The Priorities Forum recommends that:
1. Patients should be referred initially to a local NHS Consultant Psychiatrist.
2. Access to a specialist tertiary NHS commissioned Gender Identity Clinic for assessment, should be via tertiary referral from the local NHS Consultant Psychiatrist.
3. Specialist psychological support and hormonal therapy will be funded provided the above criteria have been fulfilled.
4. GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded. Funding will be approved for core Gender Reassignment Surgery if the patient fulfils the current International Harry Benjamin Criteria and has been recommended as suitable for surgery by a specialist NHS Gender Identity Clinic.
5. Cosmetic surgery and other non-core procedures such as breast surgery, larynx reshaping, rhinoplasty, hair removal, jaw reduction and waist liposuction should not be considered as a core part of GRS. Patients who wish to be considered for those treatments should be considered in accordance with the existing Berkshire Priorities Committee policies on Cosmetic Breast Surgery (No. 7) and Cosmetic Procedures (No. 9).
1. Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
2. This policy will be reviewed in the light of new evidence or guidance from NICE.”
14. The Priorities Committee policy on breast surgery, referred to in recommendation 5 of the gender dysphoria policy statement, had originally been formulated in January 2004 and was revised in October 2008. The 2004 document stated that:
“Cosmetic breast surgery is a LOW PRIORITY. There is no evidence that cosmetic breast surgery will resolve psychological symptoms, only which arise from the size and or shape of the breast. Patients with congenital absence or gross asymmetry may be eligible [for breast augmentation] if there is a related effect on health and there is a reason to believe that surgical intervention will improve health status”
15. The 2008 revised document similarly treats breast augmentation as a low priority. It concludes, however, with a proviso for exceptional circumstances identical to note 1 to the 2006 gender dysphoria policy.
16. Ms. Harrison criticises the use of the adjective “cosmetic” to describe the surgery which the Claimant was seeking to undergo. I think there is force in that criticism. The Claimant was not seeking the treatment in order to look more attractive: it was a treatment for her psychological illness. To that extent the “cosmetic breast surgery” policy is inaptly named. But the critical question in this case is whether it was irrational for breast augmentation to be classified as a non-core procedure. If it had been classified as a core procedure, the Claimant would have obtained funding pursuant to the second sentence of recommendation 4 of the gender dysphoria policy. If, however, the Defendants acted lawfully in treating what the Claimant was seeking as a non-core procedure, their case would not be undermined by the terminology used in also classifying it as a non-core procedure under another policy which was a potential alternative source of funding. The Claimant’s grounds seek judicial review of the Defendants’ policy to classify breast augmentation surgery as a low priority or non-core procedure even for GID patients. I accept the Defendants’ evidence that it was in fact the gender dysphoria policy that was critical in this case.
The decisions under challenge
17. The Claimant’s request for funding was initially refused by letter of 23rd June 2006, the refusal being upheld by the Defendants’ Case Review Committee on 24th August 2006 and by an Appeals Panel on 14th May 2007. The Claimant made a complaint to the Healthcare Commission. A case manager of the Commission took the view that the “rationale” provided by the Defendants in the decisions to which I have referred was poor. He recommended that the Trust should write to the Claimant detailing their full rationale and the reasons they decided against Mr. Barrett’s recommendation that she should be granted funding for surgery. After extensive further correspondence the matter was considered again by the Case Review Committee, who by a letter sent to the Claimant on 2nd July 2008 maintained the previous refusal.
18. Following the issue of proceedings on 1st October 2008 the same committee again maintained its refusal at a meeting on 11th November 2008. At the November meeting there was discussion of the comparison between AC’s case and that of the one West Berkshire patient for whose breast augmentation surgery funding had been granted. I will refer to that patient as Ms. X. She is a natal woman and at the material time was 18 years old. Mr. Grabham, a member of the committee, said that in Ms. X’s case:
“…there was extensive documented history of psychological illness requiring professional intervention and medication to manage depression. This actively impacted on [her] ability to maintain social engagements and a withdrawal from school. This was identified in conjunction with a diagnosis of congenital absence of breast tissue.”
19. The minutes record Mr Grabham as emphasising that:
“….[t]he extent of mental illness documented was substantially different to the chronic mild to moderate distress best described as an adjustment disorder as outlined by the psychiatrist in [AC’s] case. He considered that it remained questionable whether Ms. X’s case should have been supported.”
20. The Committee considered that no exceptional case had been outlined to warrant funding AC’s application. Dr. Buckle, another member of the committee, asked how the Trust would manage funding issues if they accepted the principle that potential distress and future possibilities of a negative reaction due to denial of service was a rationale for prioritising care and funding. All members agreed that such a position was “not an acceptable basis for decision making”.
21. The issue of this claim was out of time in respect of the refusals prior to 2nd July 2008. But Mr Goudie QC did not press the point; and since Ms Harrison confirmed that her client is not seeking damages it becomes somewhat academic. The case was argued by both sides on the basis that the challenge is to a continuing refusal to fund treatment.
Clinical effectiveness
22. There is no agreement between the Claimant’s and Defendants’ advisers as to the clinical effectiveness of breast augmentation surgery, whether for male to female transsexuals or for natal women. Professor Richard Green, a leading specialist in the field of GID, regards augmentation surgery as “a clinically effective treatment for the patient diagnosed with GID” which “provides considerable medical benefit to the patient.” In his opinion it is “integral to a comprehensive treatment program and is not simply cosmetic.” On the other hand Bazian Limited, an NHS consultancy instructed by the Defendants to review the evidence on this subject in 2009, found as follows:
“All previous systematic reviewers of the literature conclude that there is a lack of robust evidence to judge the effectiveness of Gender Reassignment Surgery for transsexuals. The PSU’s evidence synthesis had similarly found an “absence of reliable evidence” that breast augmentation was clinically effective for the long term resolution of poor body self image, and associated psychological difficulties, for either biological women or trans-females.” (witness statement of Dr. Claire Cheong-Leen, para 18)
23. I therefore cannot accept that there is, as Ms. Harrison submits, a “general medical consensus” on this subject, nor that the Defendants have acted irrationally in taking the view that the clinical effectiveness of the treatment is uncertain.
24. In his witness statement of 6th February 2009 on behalf of the Defendants Mr. Grabham writes:
“For individual patients who have a serious medical condition, the first issue is whether a proposed treatment is or is not clinically effective. Patients are rightly concerned about whether a treatment will work, and whether it carries risks of side effects. However many, if not most, medical treatments only work for a proportion of the population. That proportion can be very high or quite low, depending on the individual treatment. Many medical interventions are provided to a large number of patients, even though the numbers who experience a proven benefit is relatively quite small…… For individual patients, the balance is between the potential benefits of a treatment and the potential risks. However it is different for the PCT. We have to make decisions about which treatments to purchase to provide the most benefit with the most significant impact for our population and at the same time follow the other commissioning principles which the PCT has developed. The issue for the PCT is not just whether a treatment is clinically effective. In order to deliver on our obligations to the population as a whole, we need to be satisfied that the treatment is cost effective. The principles of cost effectiveness have been developed by academics and are now a part of the working methods of the National Institute for Health and Clinical Excellence (“NICE”).”
25. Mr. Grabham continues:
“ [D]octors have a duty of care to their patients and thus press for the best possible care for each and every patient they are treating. The treating consultants are generally not concerned with issues of overall cost effectiveness. Their role is to press for the best treatment for their patient. Where such treatment is not routinely commissioned by a PCT, the consultant is not able to provide the treatment as part of NHS care unless an exception is made for the patient. The role of the consultant in such cases is to write letters and reports to seek to persuade the PCT to fund the treatment for patients.”
Budgets and priorities
26. After referring to the PCT’s duty under the 2006 Act to break even each year, Mr. Grabham writes:
“This means that we need to consider carefully the costs of different treatments and the benefits that a treatment delivers before we plan to commission it. For the PCT, the decision to commission a particular kind of treatment is not just a question of whether a medical treatment is clinically effective: if a treatment is not clinically effective we would not commission it. However, if a treatment is clinically effective, the PCT needs to judge whether the treatment is a cost effective use of the limited resources available to it. As the PCT has a fully committed and limited budget, the duty to break even means that if we commission additional services we need to pay for this by disinvestment from other services.
The PCT is allocated a budget by the Government and needs to meet all costs out of that budget, including paying for high cost drugs. It may be helpful if I give a practical example from another PCT. In about 2006 when there were widespread demands to fund the cancer drug Herceptin, a Midlands PCT was prevailed upon to do so, and, in order to remain in financial balance, reduced the budget for services to patients with learning disabilities by about £1m per year. Whilst I am sure that the patients who were pushing for that PCT to fund Herceptin would have been horrified if they knew that the practical result of securing funding for the Herceptin drug was a reduction on services to a vulnerable group like those with learning disabilities, these are the real choices that NHS managers have to make. The PCTs can only spend money from taxpayers once.”
27. It is also well known, and recited in detail in the Defendant’s evidence, that National Health Service budgets are under severe pressure from two factors. The first is increased longevity – the percentage of the population aged over 65 increased from 10.7% to 15.7% in the second half of the twentieth century. The other is the development of new and expensive drugs and surgical procedures. Mr. Grabham gives as an example the availability of drugs to treat age-related macular degeneration, on which West Berkshire PCT now spends in excess of £2m per year.
28. In R v Cambridge Health Authority ex parte B [1995] 1 WLR 898 Lord Bingham said:
“I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court.”
29. It is therefore lawful, and Ms. Harrison did not suggest otherwise, for the Defendant to have policies about which treatments will be routinely funded and which will not. In R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977 Auld LJ said:
“… it is an unhappy but unavoidable feature of state funded healthcare that … health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping will in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose – indeed, it might well be irrational not to have one – and it makes sense too that, in settling on such a policy, an authority would normally place treatment of transsexualism lower in its scale of priorities than, say, cancer or heart disease or kidney failure. Authorities might reasonably differ as to precisely where in the scale transsexualism should be placed and as to the criteria for determining the appropriateness and need for treatment of it in individual cases.”
Exceptional circumstances
30. In the North West Lancashire case Auld LJ continued:
“It is proper for an authority to adopt a general policy for the exercise of such an administrative discretion, to allow for exceptions from it in “exceptional circumstances” and to leave those circumstances undefined; see In re Findlay [1985] 1 AC 318, HL, per Lord Scarman at 335H-336F. In my view, a policy to place transsexualism low in an order of priorities of illnesses for treatment and to deny it treatment save in exceptional circumstances such as overriding clinical need is not in principle irrational, provided that the policy genuinely recognises the possibility of there being an overriding clinical need and requires each request for treatment to be considered on its own individual merits.”
31. Dr. David Buckle, a member of the Defendant’s Case Review Committee and recently appointed the PCT’s Medical Director, states:
“In practice I do not believe that the Case Review Committee has problems as a result of there being no policy defining exceptionality. Priority policies are made by the Berkshire Priorities Committee and policies are prepared which set out who is entitled to NHS treatment in specified clinical circumstances. However, there are always cases significantly outside the normal range [as defined in the policy], such that the circumstances might be considered to be exceptional. These are the cases which the Case Review Committee is asked to review.
I believe it is impossible to define in advance what is “exceptional”. It depends on the individual circumstances. With patients, when looking to see whether their situation is exceptional, it is important to compare the patient with the cohort of patients who have the same condition. Thus in this case the Claimant could only be considered to be exceptional if she were exceptional as compared to other individuals who were seeking breast augmentation surgery.”
32. The observations of Auld LJ in the North West Lancashire case were interpreted by the Court of Appeal in R (Rogers) v Swindon Primary Care Trust [2006] 1 WLR 2649 at paragraph 62 as meaning that:
“…a policy of withholding assistance save in unstated exceptional circumstances… will be rational in the legal sense provided that it is possible to envisage and the decision-maker does envisage, what such exceptional circumstances might be. If it is not possible to envisage any such circumstances then the policy will be in practice a complete refusal of assistance: and irrational as such because it is sought to be justified not as a complete refusal but as a policy of exceptionality.”
33. In the present case it seems plain to me that what made Ms. X’s case an exceptional one was the severity of the psychological disorder from which she suffered. The Claimant’s application was refused because her symptoms were not as severe. The Defendants were complying with the law as laid down in the North West Lancashire case and in Rogers.
34. Ms. Harrison argues that in the case of transsexuals, the existence of a psychological disorder of a severity equivalent to that of Ms. X is a contra-indication to surgery; and that the Defendant’s policy is therefore a disguised blanket ban. Another way in which the same point is put in the evidence and correspondence is that the Claimant is in a Catch 22 trap. But again, there is no consensus about this in the evidence.
Like treatment of unlike cases
35. At the heart of Ms Harrison’s argument is the principle that “treating like cases alike, and unlike cases differently is a general axiom of rational behaviour” (per Lord Hoffmann delivering the judgement of the Privy Council in Matadeen v Pointu [1999] AC 98 at 109C). Mr. Goudie argues that the Claimant is a “like case” to a natal woman who is suffering mild to moderate depression because she perceives that her breasts are inadequate. Ms. Harrison argues that the Claimant and this hypothetical comparator are unlike cases. The Claimant, in correspondence, has written that she is being prevented from establishing her feminisation; that she is being kept in limbo; and that her life will be one of turmoil if the status quo continues.
36. I accept the submissions of Mr. Goudie on this central issue. The Claimant and the hypothetical comparator are both patients suffering psychological disorder because of inadequate breasts and seeking funding which is hoped will alleviate the disorder. If the Claimant were to be awarded funding and a natal woman with moderate symptoms were not, the PCT would be open to the obvious charge that it was discriminating against the natal woman by treating like cases differently. Conversely, it was rational for the Defendants to consider that the Claimant was not a “like” case to that of Ms. X because of the severity of the latter’s symptoms.
Human rights
37. In the North West Lancashire case Auld and Buxton LJJ were dismissive of arguments based on the European Convention on Human Rights. Since then, as Ms. Harrison points out, the Human Rights Act 1998 has come into force, and the Court at Strasbourg has given the important decision in Goodwin v UK (2002) 35 EHRR 18 overturning its previous jurisprudence on transsexuals. But Auld LJ’s observation that Article 8 of the ECHR imposes no positive obligation to provide treatment is still good law: see per Mitting J in A v West Middlesex University Hospital NHS Trust [2008] EWHC 855 at paragraph 31. Even in combination with Article 14, Article 8 does not in my view add to Ms. Harrison’s arguments.
The intervention by the Equality and Human Rights Commission
38. Section 76A (1) of the Sex Discrimination Act 1975 as amended provides that a public authority shall have due regard to the need (a) to eliminate unlawful discrimination and harassment, and (b) to promote equality of opportunity between men and women. As from 6th April 2008 this duty applies to discrimination on the grounds of gender reassignment, and also to the provision of goods, facilities and services by a public authority.
39. In Eisai Ltd v National Institute for Health and Clinical Excellence [2007] EWHC 1941 (Admin) Dobbs J held that in requiring all patients to have a certain MMSE score in order to qualify for funding for the drug Aricept to treat dementia, NICE failed to have due regard to its anti-discrimination duties because of the particular effects of Alzheimer’s disease on atypical groups. (Her decision was reversed on appeal but on a different issue: the anti-discrimination point was not considered by the Court of Appeal: [2008] EWCA Civ 438.) I was also referred to the observations of Moses LJ when making an agreed order at first instance in the Southall Black Sisters case, R (Kaur) v London Borough of Ealing [2008] EWCH 2062 (Admin).
40. In Eisai the Claimants were able to demonstrate that certain groups were especially hard hit by the onset of Alzheimer’s disease, and that their cases were therefore unlike those of the majority of patients with dementia; similarly in Kaur it was shown that black and minority ethnic women in West London were especially at risk of domestic violence, and that this should have been taken into account when considering whether to withdraw funding from the organisation which assisted them. But in the present case I have already found, in the context of public law arguments, that the Defendants treated like cases alike and unlike cases differently; and I take the same view in the context of discrimination law.
41. In supplementary written submissions lodged on 10th May 2010 the Commission argued as follows:
“The Defendant’s approach is the same as the error which courts made before corrected by the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd (No 2) [1995 ICR 1021 by comparing a pregnant woman with a sick man. In that case a woman claimed to have been directly discriminated against on the grounds of her sex when she was dismissed from an indeterminate appointment (but with a view to replacing a pregnant employee during maternity leave), but she discovered that she was herself pregnant. The House of Lords initially considered that there was no direct discrimination because the woman was treated the same way as a hypothetical man who would also have been unavailable for work at the material time, the precise reason for unavailability being irrelevant. However, the House of Lords referred the matter to the ECJ. The ECJ held that to dismiss the woman for pregnancy, in circumstances where a man who was indisposed for a similar period would also have been dismissed, was discrimination on grounds of sex because only women could get pregnant, and so this was a difference of treatment by reference to an inherent aspect of being a woman.
When one is addressing the need for treatment to change shape, one cannot rationally compare a transgender woman with a natal woman: the very issue which is being raised is inherent in the gender dysphoria which leads to discrimination. Only a transgender woman needs breasts to address the very condition from which she suffers, and only transsexuals suffer, of living in a body which is not the gender which they feel themselves to be. Thus, in the same way that treating the needs of a pregnant woman as analogous to the needs of a sick man is inherently discriminatory on ground of sex (because pregnancy is a gender specific condition and the needs arising from it are inherent in it), so as to treat the needs of a transgender woman as analogous to the needs of a natal woman is inherently discriminatory on grounds of gender reassignment (because being transgender is a specific protected status, and the needs arising from it are inherent in it.) Hence, to assert that there is no discrimination between a transgender woman denied treatment specific to that condition which is also denied to a natal woman because they have been treated ‘the same way’ is simply to fail to recognise the very feature which leads to discrimination.
Since that was (and is) the Defendant’s approach, the Commission continues to consider that it has failed to address the needs of transgender people correctly. That is not to mistake the gender equality duty for a duty actually to achieve equality in a specific case: as in Meany, it is a duty to give due (ie correct) regard to the relevant considerations. However, the facts of this case appear to illustrate that the consequence of a failure properly to comply with the gender equality duty can indeed prove to be discrimination which is unlawful, or an irrational decision, on the facts of a particular case.”
42. This is a very far reaching submission. It argues that the logic of Webb v EMO Air Cargo applies to the treatment of transsexuals; and that therefore, as a matter of discrimination law, the case of a transsexual seeking surgery or treatment to change the shape of her breasts can never be a like case to that of a non-transsexual seeking the same surgery or treatment.
43. I do not accept this submission. It may be that a transsexual seeking genital reconstruction surgery can rely on Webb v EMO: that will if necessary have to be decided in another case. But for breast augmentation surgery the hypothetical comparator identified in paragraph 35 above is a valid one. Otherwise it is hard to see how any request by a transsexual for surgery or treatment, however expensive, for GID could lawfully be refused. In the North West Lancashire case, Buxton LJ said ([2000] 1WLR 977 at 1002E-G):
“… it is impossible to see how the Applicants have been the victims of discrimination on the grounds of sex. True it is that they seek a particular treatment related to their sexuality: but that has been refused not because of that sexuality but on grounds … of allocation of resources. If it were an act of discrimination simply to refuse treatment that was related to sexuality, the health authority would be obliged to provide such treatment in every case, whatever the other cause on its resources. Mr Blake understandably declaimed the latter argument; but I fear that it is the inevitable corollary of categorising this case as one of discrimination in terms of Council Directive 79/7/EEC.”
44. In R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at para 31 Dyson LJ, speaking of section 71 of the Race Relations Act 1976, which is broadly equivalent to section 76A of the Sex Discrimination Act 1975, said:
“In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.”
45. He continued, at paragraph 37:
“The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.”
46. Similar observations are to be found in the judgment of the Divisional Court (Scott Baker and Aikens LJJ) in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 315 (Admin) at paragraphs 79 to 96.
47. I am satisfied that the Defendants had due regard to the need to eliminate discrimination against transsexuals and to the need to promote equality of opportunity between transsexuals and non-transsexuals. Their gender dysphoria policy was drafted with great care and after extensive consultation.
48. The Defendants are further criticised by the Commission on the grounds that the Bazian review of research evidence was inadequate:
“It is important for the PCT (and the Court) to appreciate what the PCT subcontracted to Bazian. They were asked to conduct an evidence review. They were not asked to (and did not) themselves seek the views of experts in the field of treatment of those with gender dysphoria, nor did they seek any evidence of [their] own from transgender women or others as to their psychological perception of their need for breast augmentation nor any attitudinal research to support or rebut the assertion that breast augmentation – hormonal or surgical – has any different psychological importance for a transgender woman compared with a natal woman.”
49. The Defendants did have the views of experts in the field of GID, including Dr. Barrett. They were not bound to accept them. As to seeking evidence from individual patients as to “their psychological perception of their need for breast augmentation”, I cannot see that the Defendants were under any duty in law to conduct such research. On the contrary, it would no doubt have raised false hopes and expectations and led to still greater pressure for funding from a larger number of applicants. I also accept the Defendants’ argument that the extent of research required by a PCT or group of PCTs into treatment for a small sub-group of patients in their area cannot be the same as that which NICE could reasonably be expected to carry out when formulating a policy, applicable nationally, for the funding of drugs to treat dementia.
50. The Commission criticises the PCT for not properly reviewing the equality impact of its policies on treatments for gender dysphoria and cosmetic surgery, “ideally……..within the framework of an equality impact assessment under section 76A of the Sex Discrimination Act 1975”. It argues that “once the transgender equality duty came into force in April 2008, there should have been an early and rigorous review of the possible impact of it upon existing policies such as the gender dysphoria policy and the criteria for determining when plastic surgery would be made available which had obvious potential differential impact on transgender women and those living in their natal gender.”
51. The gender dysphoria policy of the PCT is of course specifically addressed to the treatment of patients with GID. I have already found that there was no duty in either public law or discrimination law to classify all treatment and procedures sought by transsexuals as high priority or core procedures. An equality impact assessment of the gender dysphoria policy would have been a box-ticking exercise rather than a matter of substance.
52. The Commission also criticises the cosmetic surgery policy, in another far-reaching submission:
“The PCT’s initial position was that it did not undertake any form of equality impact assessment when reviewing its cosmetic surgery policy in October 2008, but was not required to do so because the policy does not differentiate in treatment between genetic women and transgender women. It then adjourned to enable it, in effect, to undertake a retrospective review of its policies.
In the Commission’s view, that was in any event too late to render it compliant with the PCT’s duties under the gender equality duty. Those duties required it to pay ‘due regard’ to the statutory equality needs at the time when the relevant policies were formed (or continued, after the duty came into force). Retrospective consideration is not adequate to comply with the duty, for the reasons set out in the cases, and the Commission would like the court to make a declaration to that effect, because it considers that this is a point of general, and wider, public importance, upon which it is important to obtain clear judicial guidance. In practice, though, the review might (if appropriately carried out, asking the right questions) have cured any potential practical problems arising.”
53. I have already indicated that the Defendants’ cosmetic surgery policy is not important in the present case. The Claimant was refused treatment under the gender dysphoria policy; the cosmetic surgery policy took the matter no further. But if the cosmetic surgery policy had been critical, I would have had great difficulty in accepting the EHRC’s submission just quoted, which appears to say that an authority which has not carried out an equality impact assessment (EIA) by the day in April 2008 on which the transgender equality duty came into force can thereafter never obtain absolution. Indeed Ms Mountfield QC accepted in oral argument that the duty was not to have conducted a formal EIA of every policy on the commencement date, but was, she submitted, to have given consideration to which policies needed most urgent review by that date, and to review them when the need arose. Eeven if that is correct, it could not affect the outcome of the Claimant’s case.
54. In my judgment the Claimant has not made out any of the grounds of challenge to the Defendant’s decisions to refuse funding for her breast surgery. The claim for judicial review is dismissed.