DISCRIMINATION

Man undergoing gender reassignment and applying for employment as woman police constable - application rejected on ground of inability to carry out personal searches of women - unlawful discrimination on grounds of gender reassignment

Chief Constable of West Yorkshire Police and another v A (No 2): CA (Lords Justice Kennedy, Buxton and Keene): 5 November 2002

The claimant, a male by birth, having undergone a gender reassignment to adopt life as a female, applied to a police force to work as a woman police constable.

She was not selected on the ground that she could not carry out personal searches on suspected females who could legitimately object to being searched in intimacy by an officer who was a male.

The claimant complained that she had been discriminated against on the grounds of gender reassignment, contrary to section 2A of the Sex Discrimination Act 1975.

The defendant contended that the refusal of the employment was justified by section 7(2) of the 1975 Act and section 54(9) of the Police and Criminal Evidence Act 1984 because the job involved physical contact with persons of opposite sex.

The employment tribunal held that the defendant had unlawfully discriminated against the claimant and that the relevant provisions of the two Acts were contrary to the Equal Treatment Directive 207/76/ EEC.

The Employment Appeal Tribunal [2001] ICR 128 reversed the decision.

The claimant appealed.

Sarah Cox QC and Stephanie Harrison (instructed by Winstanley Burgess) for the claimant.

David Bean QC and David Jones (instructed by the Force Solicitor, West Yorkshire Police, Wakefield) for the chief constable.

Rabinder Singh QC (instructed by the Treasury Solicitor) for the Secretary of State.

Held, allowing the appeal, that, in the light of the European Court of Human Rights jurisprudence which had now entered the domestic law, it was no longer possible to treat the claimant as other than a female for the purpose of the employment; and that, since the defendant was therefore bound to treat the claimant as female, it was not open to him to discriminate against her on the basis that she was transsexual, and no possibility of invoking section 7 of the 1975 Act could arise.