Transgender case decisions

Here you will find a summary of cases that have a bearing on the rights of trans people. Most of these were taken under the Sex Discrimination Act relating to the Gender Reassignment Regulations (1999) and the treatment of transsexual people in Employment and Vocational Education. There is no case law yet pertaining to the provision of goods, facilities and services. Some cases have also employed Human Rights arguments or tested the rationality of public policymaking in areas such as National Health Service treatment.

Employment Tribunal decisions:

X v Brighton and Hove City Council [2006/7]

This employment tribunal case decision from 2006/07 was about discrimination and victimisation of a transgender ex-employee. The Council was ordered to pay £34,765.18 for twice victimising and discriminating against a transgender ex-employee

In June 2007 the Brighton Employment Tribunal ordered Brighton and Hove City Council to pay compensation of £34,765.18 to a former employee, in a case supported by the Equal Opportunities Commission. The identity of the teacher is subject to a restricted reporting order by the Tribunal.

The compensation order followed the decision of the Tribunal in November 2006 that Brighton and Hove City Council, and one of its senior managers, had discriminated against and victimised the former teacher on grounds of gender reassignment.

In  2003 the teacher registered with a teacher recruitment agency in order to seek work and sought a reference from her previous manager at the Council. However she lost the opportunity to obtain work as a result of her previous manager revealing her change of gender to the recruitment agency, despite a request that this should not be disclosed.

Her previous manager initially delayed responding to the request for a reference. When he did respond, he faxed a secret side memo that disclosed her former name, stated her previous gender, and referred to her as both 'he or she', 'him' and 'her'. The side memo also revealed to the agency that she had previously raised proceedings alleging discrimination and speculated that he had 'no reason to suppose that he or she is any less effective a teacher as a result of the gender change, unless publicity around the case has caused social difficulties which make effective teaching a problem'.  He also offered to have further telephone conversations with agency staff.

This treatment was held by the Tribunal to amount to discrimination and victimisation of the teacher, for which the Council and her previous manager were liable.

It was only after the teacher had contacted the agency directly some months later, because the agency had refused to provide her with any work, that she discovered the existence of the secret fax. The Council had failed to reveal its existence when originally asked.

In 2005, in the absence of having received any employment, the teacher approached her previous manager for a reference again but was refused.  The Tribunal found that both the Council and the manager had further discriminated against and victimised the teacher by refusing the second reference request and by refusing to hear her grievance over the refusal. The Council also failed to adopt existing Criminal Records Bureau procedures for transgender people, and ignored EOC guidance on the employment of transgender people.

Although the Council applied for a review of the ET's findings of discrimination and victimisation, and then lodged an Appeal, both were unsuccessful.

As well as awarding the teacher compensation of £34,765.18 for her loss of earnings and injury to feelings, the Tribunal made a recommendation that the Council provide any prospective employer or employment agency with a non-discriminatory reference. 

P v (1) S and (2) Cornwall County Council (1996 IRLR 347)(ECJ)

P was employed as the general manager of an educational establishment operated by Cornwall County Council, and was originally recruited as a man. When P informed her employer that she intended to undergo gender reassignment, she was dismissed. She brought a sex discrimination complaint.

The industrial tribunal decided that the true reason for P's dismissal was her employer's objection to her intention to undergo a gender reassignment operation. The tribunal did not believe, however, that P had a remedy under the Sex Discrimination Act (SDA), because the SDA prohibits only adverse treatment for men and women because they belong to one sex or the other, not because they are transsexual people, and the tribunal was satisfied that P would have been dismissed for undergoing gender reassignment surgery whether she had been a man or a woman. The tribunal decided to ask the European Court of Justice (ECJ ) for a ruling on whether the Equal Treatment Directive is wider in scope than the SDA.

In its judgement, the ECJ pointed out that the Equal Treatment Directive stipulates that there should be 'no discrimination whatsoever on grounds of sex', and that the right not to be discriminated against on the ground of sex is one of the fundamental human rights whose observance the ECJ has a duty to ensure. Accordingly, the scope of the Directive cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights, which it seeks to safeguard, the Directive must also apply to discrimination arising from gender reassignment. Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. Dismissal of a transsexual person for a reason related to a gender reassignment is therefore in breach of the Directive.

When P's case returned to the industrial tribunal, her discrimination complaint was upheld. The parties agreed compensation of an unstated sum before the hearing on compensation was concluded.

Chessington World of Adventure v Reed (1997 IRLR 556) (EAT)

Ms Reed was subjected to a prolonged campaign of abuse and harassment from her colleagues at work when she announced her change of gender identity from male to female. The Employment Appeal Tribunal (EAT) held that discrimination arising from a declared intention to undergo gender reassignment was unlawful under the SDA.

Mills & Crown Prosecution Service v Marshall (1998IRLR 494) (EAT)

In 1993, as a man, Ms Marshall successfully applied to join the Crown Prosecution Service. However, this job offer was withdrawn when she told them that she intended to take up the post as a woman. Ms Marshall did not make a claim to a tribunal about her treatment until 1996 following the ECJ judgement in the P v S and Cornwall County Council case (above) as until this time it had been thought that the SDA did not cover discrimination arising on the ground of being transsexual. The tribunal considered that it was just and equitable to hear the claim as Ms Marshall had acted quickly when she became aware that the SDA did cover discrimination as a transsexual person. The case settled on confidential terms after the time limit issue had been resolved.

Whittle v The Parochial Church Council of the Parish of St John the Evangelist (1996 ET)

In 1982, Mr Whittle was dismissed because of being transsexual. He made a complaint to the tribunal about his dismissal in 1996 when he first became aware that such discrimination had now been found to be unlawful sex discrimination. The tribunal, however, decided in this case that it was not just and equitable to hear the claim out of time as the quality of evidence on both sides was bound to be substantially affected after 14 years; documents relating to his dismissal had been destroyed and one of the people involved was believed to have died.

Elmes v Exeter District Council and Others (1996 ET)

Ms Elmes (a male to female transsexual person) was dismissed from her post of counsellor because her employers had become increasingly concerned about the feminisation of her appearance.

The Industrial Tribunal had initially considered that there had not been a breach of the legislation but revised this view following the ECJ decision in the P v S and Cornwall County Council case (above). They awarded Ms Elmes £30,740 (of which £13,967 was for injury to feelings) in compensation.

M v West Midlands Police (1996 ET)

M, who had undergone male to female gender reassignment, applied to join the West Midlands Police Force as a police constable. She passed the assessment procedures and was informed that she was suitable for appointment. As the school certificates she would have to supply would show that she had previously been a man, M decided to inform the West Midlands Police that she was transsexual. She subsequently received a rejection letter indicating that because of her gender reassignment, West Midlands Police considered that it would be inappropriate for her to carry out some of the duties of the post including searching suspects.

The Industrial Tribunal found that discrimination on the grounds of gender reassignment did not come within the SDA/Equal Treatment Directive (ETD) but even if it did, West Midlands Police had a defence under s7 of the SDA which deals with genuine occupational qualifications and under Article 2.2 of the ETD. M's case was unsuccessful.

Since this case was heard, the EAT has decided that the SDA and the ETD does cover discrimination on the grounds of being transsexual (see P v S and Cornwall County Council  and Chessington World of Adventure v Reed above). However, since then, the SDA has been amended to make it lawful to discriminate against transsexual people in recruitment to a job if the work involves the holder conducting intimate searches pursuant to statutory powers as contained in, for example, The Police and Criminal Evidence Act.

Malone v Ministry of Defence (1997 ET)

Ms Malone was dismissed from the Royal Air force in 1993 and believed that it was because she was transsexual. She made her complaint to the tribunal in 1994 well outside the 3 months time limit. The tribunal considered that it was just and equitable to hear the claim as it had not been known at the time of the dismissal that the SDA/ETD would cover discrimination arising on the ground of being transsexual. Furthermore, as the ETD on this issue had not been transposed into domestic legislation (the SDA), the time limit had not begun to run.

Clare v Fairburn t/a The Old Rectory Nursing Home (1997 ET)

Ms Clare believed that she had not been selected for the job of care assistant after her interview because she was a transsexual person. The respondents claimed she had been rejected because of her lack of qualifications, experience and age and not because of being transsexual. The tribunal accepted the reasons put forward by the respondents. Ms Clare's claim was unsuccessful.

A v Chief Constable of the West Yorkshire Police [2004] 2 All ER 145

A underwent gender reassignment from male to female in 1996. In 1997 she applied to join West Yorkshire Police. She made it clear from the outset that she was a transsexual person and was told that, in accordance with the Force's equal opportunities policy, this would not be a problem. She was invited to continue with her application and she successfully completed the various selection tests. However, she was then informed that since her initial application had been received, the issue of transsexual applicants had been further considered and a decision had been made that transsexual people would not be appointed to the Force. The Force argued that as a transsexual person, A would be unable to conduct intimate and body searches of suspects, and could not therefore comply with the full range of policing functions. (The Police and Criminal Evidence Act requires that suspects are searched by a police officer of the same sex).

The case reached the House of Lords who upheld a previous ruling by the Court of Appeal that to refuse A's application was contrary to the Sex Discrimination Act.

Fortnum v Suffolk County Council (ET 2000)

Ms Fortnum (a male to female transsexual person) was employed as an assistant day care officer who was required to give occasional intimate personal care to the male and female day centre clients. In May 1999, the Council told her that she could no longer continue to provide this intimate personal care to one of the female clients with learning difficulties whom she dealt with as the client's mother had asked that her daughter be cared for only by female staff. The client and her mother were unaware of Ms Fortnum's gender reassignment. The Council had taken the view that as Ms Fortnum was, at that time pre-operative, she was not a woman. The tribunal considered that the Council's reliance on a genuine occupational qualification - that these services could not be provided effectively by some one undergoing gender reassignment (Section 7B(2)(d)) was problematic as Ms Fortnum had been providing these services effectively to the client for some time before being told not to do so. There was no evidence to show that the Council had addressed the issue of whether or not the service could be provided effectively by Ms Fortnum. Her claim was successful.

A.D & G v Lancashire Health Authority (Court of Appeal; July 1999)

A, D and G were three separate transsexual women (M to F) and each had been refused NHS funding of gender reassignment surgery which was recommended by the gender identity clinic specialists dealing with their cases. The law permits NHS bodies (nowadays Primary Care Trusts) to make local decisions about how to prioritise the way they allocate limited public funds to provide treatment for the full range of medical conditions in their area. The Lancashire Health Authority (as existed at the time) had decided on this basis not to allow funding for gender reassignment surgery. The initial hearing at the High Court first had to establish a position on whether gender reassignment surgery was the appropriate treatment for Gender Dysphoria. It was agreed that Gender Dysphoria is a medical condition and that, as such, it should be treated on the NHS. On the more contentious issue of how to treat it, Justice Hidden ruled (on the basis of expert testimony) that gender reassignment surgery was the appropriate intervention. Justice Hidden also ruled that a funding policy that amounted, in practice, to a blanket ban was unlawful and irrational. The Health Authority appealed the latter judgement, given in December 1998, but the Court of Appeal upheld the findings in July 1999. Note that subsequent high profile cases contesting other NHS funding decisions (e.g. Rogers v Swindon NHS Primary Care Trust), whilst referencing the rationale of the A.D.& G case, have stressed that it still stands even when they have judged those subsequent cases differently on the facts.

More information about legal cases

Press for Change has a library of the full rulings relating to these and other similar cases on its website.

Last Updated: 30 Jun 2009