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Transsexual loses breast enlargement judicial review

26 May 2010

A transsexual has lost a judicial review at the High Court, which would have forced the NHS to offer her breast enlargement surgery.

The claimant, who is 58 and has had a female name for over ten years, was referred by the court as ‘AC.’ The Equality and Human Rights Commission intervened in the case.

Delivering judgment in AC v Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin), Mr Justice Bean said AC was receiving hormone treatment with a view to gender reassignment.

However he said AC was still legally a man, since she had not applied for a certificate under the Gender Recognition Act 2004.

Bean J said Berkshire West Primary Care Trust was prepared to offer AC surgery to enable her to become genitally female, but she had so far not sought to have such surgery carried out.

“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,” Bean J said.

“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’.”

Bean J said breast enlargement surgery was classified by the NHS Trust in its policy statement on gender dysphoria as a ‘non-core’ procedure.

Core procedures included penectomy and orchidectomy (removal of the penis and testicles) and vaginoplasty (the creation of a vagina).

Mr Justice Bean said the crucial issue was whether it was irrational for breast enlargement to be classified as a non-core procedure.

He concluded: “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.”

Bean J said there was no duty in public or discrimination law to classify all treatment sought by transsexuals as high priority or core procedures.

He dismissed the judicial review.

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