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Hooper LJ warns: 'All choice involves discrimination'

21 March 2011

Discrimination is a “problematical word” because “all choice involves discrimination”, Lord Justice Hooper has warned.

He was giving the leading judgment in R (on the application of AC) v Berkshire West Primary Care Trust [2010] EWCA Civ 247, a case involving the right of a male transsexual to NHS breast enlargement surgery.

Lord Justice Hooper said the “vice” that both article 14 of the ECHR and domestic equality legislation were directed against was “the making of certain choices on grounds, or with effects, which are unacceptable”.

He went on: “An unacceptable choice may consist of treating in the same way people whose characteristics are relevantly different, just as it can consist of treating differently people who share relevant characteristics. The critical question in each case is what makes a characteristic relevant.”

The claimant, aged 59 and known as AC, was born a man but has had a female name for ten years and undergone hormone treatment to increase the size of her breasts. She has not applied for a gender reassignment certificate or had sex change surgery.

“It was hoped by the appellant that the hormone treatment would, among other things, significantly increase the size of her breasts,” Hooper LJ said.

“Unfortunately in the appellant’s case, her expectations were not met and she became, and remains, very disappointed.”

Hooper LJ said the hormone treatment had left AC with breasts that were no bigger than ‘Tanner Scale 3’ and would normally be found in girls aged 11-13.

The court heard that her application for breast enlargement was finally refused in December 2008.

Mr Justice Bean rejected an application for judicial review last year (see Solicitors Journal 154/21, 1 June 2010).

Under its 2006 gender dysphoria policy, the West Berkshire PCT divided gender reassignment into two categories, core and non-core, even though there was limited evidence of the effectiveness of surgery.

Hooper LJ said Bean J’s ruling in the case was “unassailable”.

He went on: “The appellant in this case was seeking NHS funding for a surgical operation where the PCT had reasonably concluded (as the judge found and was, in my view, entitled to find) that there was an absence of evidence that it was likely to be clinically effective to improve the appellant’s health.”

The lord justice said he understood why AC felt aggrieved that the NHS trust funded “core gender reassignment procedures” such as penectomy (removal of the penis) but did not fund breast enlargements.

He said the respondent, in exercising its statutory responsibilities, “has had to make very difficult choices as to what procedures to fund and not to fund and the choice in this case is not irrational”.

Hooper LJ said the court was not “appropriately placed” to make either clinical or budgetary judgments about publicly funded healthcare and its role was limited to keeping decision making within the law.

He said the NHS trust had concluded that there was “no evidence of significant health impairment” and compared AC’s mental state with that of a woman whose breast enlargement surgery was funded because she had a significant level of psychological illness.

Hooper LJ dismissed AC’s appeal. Lord Justice Sedley and Lord Neuberger, the Master of the Rolls, agreed.

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Procedures Discrimination Vulnerable Clients