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Transsexual seeking NHS breast augmentation loses appeal

In R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247 the Court of Appeal has dismissed the appeal of a male to female transsexual who was seeking NHS funding for breast augmentation surgery.  In 1996 AC was diagnosed with Gender Identity Disorder (GID).  The PCT provided AC with hormone replacement therapy and was prepared to fund genital reassignment surgery, which AC declined.  AC was disappointed with her breast development as a result of the hormone therapy and sought funding for surgical enhancement, which the PCT declined.  Her challenge to this decision by way of judicial review was unsuccessful at first instance.  She appealed.  The main issue in the case was disposed of in short order by the Court of Appeal (per Hooper LJ):

"I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational...  this conclusion disposes of the case”.

Hooper LJ went on however to consider arguments that had been pursued on the issue of discrimination.  The PCT had defended its policy in part by arguing that to grant funding for this surgery to transsexual women could be considered to amount to discrimination against women born female who were similarly dissatisfied with the size of their breasts.  It was argued against the PCT that this reasoning was unlawful because it involved treating different cases in the same way improperly.   It was said that breast augmentation for an individual in AC's position was not simply a matter of improving body image but was an important part of the gender transformation, in other words it is an issue of identity rather than simply of body image.

The Court of Appeal ultimately decided that discrimination was not proved. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.  The Court of Appeal recognised the competing views held by the parties, but concluded that, in the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take its view that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment.

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