There's something about Constable A

Andrew Scott-Howman, Partner | Wednesday 18 August 2004

Issues relating to transsexuality seem to have attained some prominence over recent times.

Most recently, there has been some publicity associated with the television show "There's something about Miriam".

The show's premise was ostensibly simple (and similar to any number of other reality based shows on television : six men were asked to compete for the affections of an attractive woman. The twist, however, was that, unknown to the men, Miriam wasn't a woman - she was a pre operative transsexual.

Several of the men engaged in intimate behaviour with Miriam - which, after the subsequent revelation about her transsexuality, raised particular issues for some of them.

The show resulted in law suits being brought by each of the six men - which were ultimately settled, allowing the show to go to air.

Issues of transsexuality have also recently received some attention in an employment law context in the United Kingdom.

The House of Lords in A v Chief Constable of West Yorkshire Police and another [2004] UKHL 21 was asked to consider an allegation of sex discrimination brought by a recruit to the West Yorkshire Police.

Ms A was described in the decision as a "transperson". She did not consider that she had ever been male. She had lived for many years as a female, both before and after she underwent gender reassignment surgery. The people amongst whom she lived did not know anything about her gender reassignment - and treated her as a woman.

In December 1996, Ms A decided to become a Police Officer. She was completely open in her application about her status and the treatment that she had undergone. She was initially informed that full consideration had been given to her application, and that the force was happy for it to proceed.

However, delays then occurred. Ultimately, Ms A received a letter informing her that her application had been declined on the basis that she would not be able to perform the full duties of a Police Officer.

The specific concern was that Ms A would not be able to carry out searches required of a Police Officer. Legislation in the United Kingdom prevents Police Officers from carrying out physical searches of members of the opposite sex. In this case, the Chief Constable of the West Yorkshire Police reached a view that Ms A was (for the purposes of relevant law) a male - and that, as a consequence, she could not carry out searches of females (despite outwardly appearing female). It is implicit that there was also a concern about her searching males.

The issues that confronted the House of Lords were complex - and involved a consideration not only of domestic English law, but also of relevant provisions of the European Convention.

Ultimately, the decision turned upon the application of a logic drawn from other similar situations. Their Lordships reflected upon the fact that in some situations (such as doctors and nurses in a hospital ward) it was necessary for people of one gender to participate in intimate conduct with people of the opposite gender. It was observed that, generally, society depended upon the professionalism of the individual concerned - backed up by the ordinary law and complaints mechanisms. In this context, Their Lordships considered that there was nothing necessarily rational about an objection to Ms A conducting searches on females.

In conclusion, the House of Lords held that the Chief Constable of the West Yorkshire Police had acted incorrectly in refusing to progress Ms A's application. Further, Their Lordships found that the relevant principles of law supported the conclusion that her application should have been allowed to proceed.

Under New Zealand law, the Human Rights Act prohibits discrimination in employment both on the basis of sex and sexual orientation.

There are no reported claims under the legislation involving a transsexual. It is, however, accepted that a claim similar to that raised by Ms A could be brought under New Zealand's legislation - most probably alleging discrimination on the basis of "sex".

It is likely that Ms A's claim would be considered in light of the permissible exceptions to discrimination - which allow discrimination on "genuine occupational" grounds. Put simply, the issue for a Court in this country would be whether it was a genuine occupational requirement for a Police Officer to have a particular legal gender status (as opposed to a transsexual identity).

It is tempting to conclude that the commonsense rationale adopted by the House of Lords would also prevail in this country - particularly given current moral standards - and that an issue of this sort would be approached in the same way as an issue of a hospital nurse being required to treat patients of both genders.