Case No: C1/2010/1707
Neutral Citation Number: [2011] EWCA Civ 247
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
BEAN J
CO/9250/2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/03/2011
Before :

MASTER OF THE ROLLS 
LORD JUSTICE SEDLEY
and
LORD JUSTICE HOOPER
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Between :

	R (on the application of AC)	Appellant	
	- and -		
	Berkshire West Primary Care Trust	Respondent	
	
Equality and Human Rights Commission	
Intervenor	
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(Transcript of the Handed Down Judgment of
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Stephanie Harrison (instructed by Public Law Solicitors) for the Appellant
James Goudie QC & David Lock (instructed by Bevan Brittan Solicitors) for the Respondent
Ms Mountfield QC (in writing only) for the Intervenor

Hearing date: 2 March 2011
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Judgment
Lord Justice Hooper:
Introduction 
1.	The appellant was born in 1951 as a man. In 1996 she was diagnosed with Gender Identity Disorder (“GID”). To put it simply, a natal male with GID has the psychological outlook and mindset of a woman but the body of a man.  
2.	An anonymity order was granted at an early stage of the proceedings and remains in force.
3.	In 1996 she began gender reassignment treatment primarily by way of hormone treatment. She has lived as a woman since then and she adopted a female name in 1999. She has not applied for a gender recognition certificate under the Gender Recognition Act 2004 and remains legally a man. She has not undergone, nor has she requested funding for, genital reassignment surgery. It was hoped by the appellant that the hormone treatment would, amongst other things, significantly increase the size of her breasts.  Unfortunately in the appellant’s case, her expectations were not met and she became, and remains, very disappointed.  Her breast development as a result of that therapy led her to have “Tanner Scale 3” breasts, which, whilst within the wide range of sizes for women as identified by the Tanner scale, would normally be found in females of 11-13 years old. We were told that in over 40% of patients like the appellant, the hormone therapy provides appropriate breast tissue.
4.	The appellant made an application to the respondent Primary Care Trust (“PCT”) for funding to pay for breast augmentation surgery (augmentation mammoplasty) in May 2006.  
5.	Dr Barrett, her treating psychiatrist, explains in a witness statement his view as to the importance to the appellant of the surgery requested:
Without adequate breast development [the appellant’s] gender dysphoria will not be adequately treated and therefore she will continue to suffer from her primary psychiatric illness i.e. Gender Identity Disorder as well as any secondary psychiatric conditions attributed to the refusal of treatment, such as adjustment disorder or depression. She will therefore continue to suffer the psychological consequences of untreated gender dysphoria and in my view will and has continued to need psychological support [for] this. 
6.	The appellant puts it this way:
I have exceptional circumstances in that I haven’t developed proper breasts. For a male to female transsexual to have breasts is a very natural and moral request. It is also necessary to establish feminisation in my journey from male to female. My life will be one of turmoil if this is denied. Not fully knowing what or who I am and neither will those around me in every day life.
Hormones also make one impotent, cause the penis to shrink and libido diminishes to nil. Hormones haven’t changed my form, my body is still recognisably male after 11 years of treatment…I have to carry on as I am, unable to be a woman, and hopeless sexually as a man. 
7.	The appellant supported her application then and later with letters from her general practitioner and her psychiatrist supporting her application.  Dr Denny, in a letter of 23rd May 2006 wrote:
She has recently been seen there in clinic and her psychiatrist feels that she would be a good candidate for augmentation mammoplasty.  [AC] has always found her lack of breasts difficult, finding it makes 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.  
8.	Dr Denny in a later letter dated 13 July 2006 wrote:

She is not looking for full sex-reassignment surgery but for breast augmentation.
She feels that her lack of breasts makes her feel particularly unfeminine and believes that this type of surgery would have the most effect on improving her femininity.
9.	The appellant’s consultant psychiatrist, Dr Barrett, explained his reasons for supporting the application for the NHS to fund breast augmentation surgery for the appellant in a letter dated 13th July 2006 which said:
I do think that it would be helpful if she could be offered surgery in order to correct breast asymmetry.  As somebody who has changed her gender role, she is considerably more sensitive around issues of physical appearance than most, and clearly adequate breasts are something which are important in producing an effective impression of the femininity she psychologically experiences. I strongly believe that such surgery would be likely to improve her state of mind.
10.	The respondent submits in its skeleton argument:
12. When the application for NHS funding was originally made there was no suggestion that there was a serious mental health or psychological element to the application or that the requested operation was an essential part of the gender transformation process for the Appellant (or for GID patients generally).  The application for funding was substantially justified on the basis that it would enable the Appellant to feel more feminine.
11.	On 16 May 2008 Dr Barrett wrote:
The effect of her not having undergone an augmentation mammoplasty is one of chronic mild to moderate distress probably best characterised as an adjustment disorder.  Whilst we can offer her what support we can with this, this is never clearly going to be as effective as a surgical solution.
12.	Dr Barrett on 7 October 2008 wrote:
I have to say that this self consciousness has become quite marked as time has gone on, if for no other reason that the patient has become increasingly focused upon this issue and has become evermore psychologically invested in achieving the funding for an augmentation mammoplasty.
13.	The appellant’s application was first refused in June 2006. That first refusal was followed by a protracted internal appeals process with two complaints upheld by the Health Commission. After reconsideration, the appellant’s application was finally refused on 5 December 2008.
14.	The PCT (which is subject to an absolute duty to break even in each financial year) accepts that GID is a recognised medical condition and accepts that the appellant has GID. It has a Gender Dysphoria Policy which makes provision for medical treatment including surgery for GID patients whether transgender females, like the appellant, or transgender males.  In the view of the PCT the requested surgery could not properly be funded under the terms of this or under its Cosmetic Breast Surgery Policy. 
15.	The appellant challenged the respondent’s refusal to fund breast augmentation surgery by way of judicial review. Permission having been granted, the challenge was heard by Bean J. 
16.	Bean J in a careful and well thought out judgment dismissed the application for judicial review [2010] EWHC 1162 (Admin). The appellant appeals with the permission of Pill LJ. The Equality and Human Rights Commission [“EHRC”] has made written submissions. The EHRC submission contains an error in so far as it states that the appellant sought breast augmentation treatment to complete a successful physical reassignment to being a female. 
17.	 Although the challenge is to the refusal contained in the 5 December letter, all but one ground of appeal (Ground 6) concentrate on the lawfulness of the policies relevant to the decision which the respondent had to make. Ground 6 assumes the policies to be lawful and challenges the rationality of the decision not to fund breast augmentation surgery because of alleged exceptional circumstances.
The Policies
18.	There are two relevant policies: the Gender Dysphoria Policy dated July 2006 and the Cosmetic Breast Surgery Policy dated January 2004 and updated in 2008. 
19.	The Gender Dysphoria Policy divides various procedures into core and non-core and also uses the expression “low priority”.  For my purposes it is sufficient to say that core procedures will be routinely funded if that procedure is sought by the patient and recommended by the treating clinician subject to specified criteria being met whilst non-core or low priority procedures will not routinely be funded but may be funded in exceptional circumstances. 
20.	The Gender Dysphoria Policy was preceded by and (it is accepted) reflects the conclusions of a paper headed “Management of Gender Dysphoria” dated May 2006.  That paper sets out in some detail the conclusions of the Court of Appeal in the leading case of R v North West Lancashire Health Authority ex parte A, D and G [2000] 1 WLR 977. 
21.	Following the amendment of this application by the appellant to raise discrimination issues and the intervention of the Equality and Human Rights Commission, the respondent commissioned a further report, known as the Bazian Report which is dated March 2010. According to the Report “There are no persuasive evidence reasons for a change to” the Policy. The Bazian Report looked specifically at breast augmentation surgery for transfemales like the appellant.
22.	It is necessary to set out the Policy in full:
Gender Dysphoria is a psychological state whereby a person demonstrates dissatisfaction with their biological sex, and requests sex reassignment. Management can be lengthy and expensive and comprises assessment, psychotherapy, real life experience, hormonal therapy and surgery.
•	There is a clear consensus that equitable access to services for initial diagnostic assessment, hormone therapy and surgery is essential for those patients fulfilling the Harry Benjamin International Gender Dysphoria Association criteria [which the appellant fulfills]. 
•	There is no professional consensus on the classification of core and non-core procedures for gender reassignment. 
•	There is limited evidence to suggest that gender reassignment surgery is effective. Much of the evidence in favour of or against gender reassignment surgery is of poor quality due to lack of standardised criteria for assessment and management. 
•	For most gender reassignment surgical (GRS) procedures, several techniques have been described with varying degrees of complications and patient satisfaction reported. In view of the heterogeneity of surgical techniques, outcomes, complications and patient choice, it is not appropriate to recommend any particular technique or procedure for all patients.
•	There is no published evidence on the cost-effectiveness of gender reassignment surgery. 
Core surgical procedures for male to female patients (MtF) are Penectomy, Orchidectomy, Vaginoplasty (including hair removal essential for vaginoplasty), Clitoroplasty, Labiaplasty. Core surgical procedures for female to male (FtM) patients are Mastectomy, Hysterectomy, Salpingo-Oophorectomy, Metoidioplasty, Phalloplasty, Urethroplasty, Scrotoplasty and placement of testicular prostheses.
The Priorities Forum recommends that:
1. Patients should be referred initially to a local NHS Consultant Psychiatrist.
2. Access to a specialist tertiary NHS commissioned Gender Identity Clinic for assessment, should be via tertiary referral from the local NHS Consultant Psychiatrist.
3. Specialist psychological support and hormonal therapy will be funded provided the above criteria have been fulfilled.
4. GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded. Funding will be approved for core Gender Reassignment Surgery if the patient fulfils the current International Harry Benjamin Criteria and has been recommended as suitable for surgery by a specialist NHS Gender Identity Clinic.
5. Cosmetic surgery and other non-core procedures such as breast surgery, larynx reshaping, rhinoplasty, hair removal, jaw reduction and waist liposuction should not be considered as a core part of GRS. Patients who wish to be considered for those treatments should be considered in accordance with the existing Berkshire Priorities Committee policies on Cosmetic Breast Surgery (No. 7) and Cosmetic Procedures (No. 9).
23.	Note 1 provides:
Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
24.	Central to this appeal is the statement in the Policy that “there is limited evidence to suggest that gender reassignment surgery is effective” and that “GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not routinely funded”.  The Policy divides the various gender reassignment surgical procedures into the two categories of core and non-core and does so even though there is limited evidence of the clinical effectiveness of any gender reassignment surgery and even in the absence of any professional consensus on the classification of core and non-core procedures for gender reassignment. Breast augmentation surgery is placed in the second category. In ground 2 the appellant challenged the rationality of putting breast augmentation surgery into the second category. In my view this is not a good argument.
25.	Although this case is only concerned with breast augmentation surgery, Mr Goudie QC for the respondent rightly reminds us that it is only one of a number of non-core procedures listed in paragraph 5. 
The issues 
26.	In ground 1 Miss Harrison criticises the use of the word “cosmetic” both in this policy and the Cosmetic Breast Surgery Policy to which I turn shortly. She submits that the respondent had irrationally treated breast augmentation surgery as a cosmetic treatment which does not meet ‘a clinical need and/or provide clinical benefit for a person diagnosed as a transsexual”. 
27.	I see no force in this argument. It is clear from both policies that the term “cosmetic” does not mean merely “aesthetic”.  For example, the Cosmetic Breast Surgery Policy includes procedures carried out for practical purposes (e.g. breast reduction to reduce back pain). (I note in passing that paragraph 2 of this Policy starts with the words: “All cosmetic breast surgery is considered to be low priority”.   Given the exceptions in the Policy, the use of the “all” is misleading). 
28.	The thrust of Ms Harrison’s complaint is that the respondent did not give sufficient weight in the Policy to the clinical importance of breast augmentation therapy to a transfemale who has undergone hormone therapy, whose breasts have not developed to a sufficient size and whose progress to physical womanhood is thereby impeded. To help us she drafted a suggested amendment to the policy to reflect her argument.  The effect of the amendment was to provide for funded breast augmentation surgery (even if non-core) in these circumstances. 
29.	But the respondent could not begin to be required to fund breast augmentation surgery in these circumstances unless there is evidence of clinical benefit. Ms Harrison submits that there is such evidence. As to this Bean J said: 
22. There is no agreement between the Claimant’s and Defendants’ advisers as to the clinical effectiveness of breast augmentation surgery, whether for male to female transsexuals or for natal women. Professor Richard Green, a leading specialist in the field of GID, regards augmentation surgery as “a clinically effective treatment for the patient diagnosed with GID” which “provides considerable medical benefit to the patient.”  In his opinion it is “integral to a comprehensive treatment program and is not simply cosmetic.”  On the other hand Bazian Limited, an NHS consultancy instructed by the Defendants to review the evidence on this subject in 2009, found as follows:
“All previous systematic reviewers of the literature conclude that there is a lack of robust evidence to judge the effectiveness of Gender Reassignment Surgery for transsexuals.  The PSU’s evidence synthesis had similarly found an “absence of reliable evidence” that breast augmentation was clinically effective for the long term resolution of poor body self image, and associated psychological difficulties, for either biological women or trans-females.” ...
23. I therefore cannot accept that there is, as Ms. Harrison submits, a “general medical consensus” on this subject, nor that the Defendants have acted irrationally in taking the view that the clinical effectiveness of the treatment is uncertain.
30.	The judge’s finding seems to me to be unassailable. 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. 
31.	Ms Harrison also complained that the respondent had not considered both policies when deciding to reject the appellant’s application. It is clear from the decision letter of 5 December that they did. Having reached the conclusion in accordance with the Gender Dysphoria Policy that her application failed, they went on to consider the Cosmetic Breast Surgery Policy. 
32.	Under that Policy cosmetic breast surgery is considered to be a “Low Priority” subject to exceptions, such as breast reconstruction following surgery for breast cancer.  Breast augmentation is described as a “Low priority”. 
33.	Both Policies have a proviso dealing with exceptional circumstances. I have set out the proviso to the Gender Dysphoria Policy above (paragraph 23). 
34.	Ms Harrison submits that it is wrong to require a transfemale in the appellant’s position to satisfy the exceptional circumstances threshold.  But that, with respect, is saying no more than that the respondent was wrong not to fund the surgery which the appellant seeks to assist her in her progress to physical womanhood. 
35.	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.
36.	Putting aside ground 6, this conclusion disposes of the case. But given the arguments made by the appellant and the EHRC, I turn to ground 3 which is headed “Discrimination – treating unlike cases alike.”
37.	Although, as it seems to me, it would have been sufficient for the respondent to defend the Gender Dysphoria Policy on the grounds which I have set out above, the respondent decided to justify the Policy in so far as it related to breast augmentation surgery with a further reason.  It is that reason which is now challenged. The reason may be stated in this way:  
When deciding whether to fund breast augmentation surgery for a transfemale who has undergone a course of hormone therapy which has not led to a ‘satisfactory’ augmentation of the breasts, the transfemale must be excluded from the Gender Dysphoria Policy because, not to exclude her, could result in discriminating against a natal female similarly dissatisfied with the size of her breasts.
38.	The reason is set out in various documents. In a letter dated 18 March 2008, the reason was put in the following way:
•	Non-discrimination (and other policies) requires the patient to be treated as female now.
•	Absence of breast tissue occurs in congenitally born females (as well as transfemales who have not responded to hormone therapy).
•	Breast augmentation is a cosmetic procedure
•	Both congenital females and transfemales need to demonstrate that there is a need for surgery in line with policy on cosmetic breast surgery.
•	The key point here is that a transfemale with no/minimal breast tissue should have equal access to breast augmentation surgery to a congenital female with no/minimal breast tissue. There was a consensus that transfemales should not have automatic advantage (or disadvantage) to congenital females when applying for a cosmetic procedure
39.	Miss Claire Cheong-Leen, the Director of the Priorities Support Unit,  put it this way in her witness statement: 
21. ... We were concerned, in accordance with our ethical framework, to ensure that the PCTs were considering fairly both transfemales and biological females who presented with the same health status impairment associated with their small breasts. The PSU is aware that there is a considerable unmet demand amongst women (and some men) for aesthetic procedures including augmentation mammoplasty. If the PCT were to routinely fund this augmentation mammoplasty for transfemales in order to afford them greater satisfaction about their body image, and thus seek to alleviate perceived psychological distress, the PCT would be breaching the equity principles clearly identified in the South Central Ethical Framework unless it made the same treatment available to other women with similar health status impairment. Such a policy would require a significant investment of resources and an equally significant “disinvestment” from other groups of patients. ... 
40.	She refers in paragraph 30 to the note of a specific discussion on the possible link between the Berkshire Priorities Committee policy on cosmetic breast surgery and transgender patients:
... the Committee decided that eligibility criteria for all other types of cosmetic surgery, including breast augmentation for transfemales, should not differentiate between transgender patients and other patients. ... the committee recognised that there was demand amongst transfemales for breast augmentation. The committee recognised that that there were many women who were concerned about their body shape and had similar psychological effects. The issues for the Priorities Committee were: 
a. Whether there was sufficient good quality evidence to justify funding for this procedure in either group being a priority; and 
b. Whether there was any proper basis to distinguish between the transfemales and other women in making this surgery available as part of the NHS. 
The Committee decided, as part of its deliberations about the relative priority of cosmetic surgery procedures that there was not sufficient good quality evidence to justify making funding for this procedure a priority. We also decided that it was our policy that we would not discriminate between transfemales and other women in granting access to this procedure. (Emphasis added)
41.	The penultimate sentence of this paragraph is important. It is there being made clear that, in the view of the respondent, the Policy was justified on the basis that “there was not sufficient good quality evidence to justify making funding for this procedure a priority”.
42.	The appellant and the EHRC submit that the respondent acted unlawfully in deciding to exclude transfemales like the appellant from the Gender Dysphoria Policy (absent exceptional circumstances) on the grounds that to do otherwise would involve discriminating against natal women seeking the same procedure. Having excluded transfemales like the appellant from the Gender Dysphoria Policy, the relevant Policy is the Cosmetic Breast Surgery Policy. 
43.	Although it is not, in my view, necessary to resolve this issue, I propose to say something about the submissions made on this point by Ms Harrison and by the EHRC. They submit that treating requests for breast augmentation surgery for transfemales like the appellant in the same way as requests for breast augmentation surgery made by a natal woman is treating unlike cases alike. Ms Harrison puts it this way:
The Equality and Human Rights Commission identified this crucial difference in their written submissions ... as follows:
So the difference between a transgendered woman and a natal woman in receiving breast augmentation surgery in case of limited breast growth is the difference between being perceived as a woman at all and a different issue of disliking one’s shape as a woman.
44.	Ms Harrison then sets out in paragraph 45 of her Skeleton Argument what she submits are a number of important distinctions:
i. Breast augmentation for the transfemale patient is a recognised medical treatment for a recognised medical condition and an illness namely gender identity disorder which is itself treated as a serious psychological disorder. 
ii. In a born female breast augmentation is sought as a result of dissatisfaction with body image and it is a cosmetic procedure which is not recognised as i) illness and ii) an effective medical treatment. There is no expert medical consensus that supports either proposition distinguishing it from the position of trans patients recommend for the same surgery.
iii. In the transsexual patient breast augmentation is part of a process of gender reassignment (creation of female physical characteristics) which, in the carefully selected patient, is the only recognised effective treatment.
iv. Breast augmentation has no role as gender reassignment in the biological female since it is simply unnecessary.
v. A congruent female psychological, social and physical appearance is essential for the transsexual’s ability to function as a female in society and is intrinsic to the personal identity of the trans person.
vi. No issue of a congruent personal identity arises in a biologically formed female.
45.	Ms Harrison also emphasises the following submission by the EHRC:
When one is addressing the need for treatment to change shape, one cannot rationally compare a transgender woman with a natal woman: the very issue which is being raised is inherent in the gender dysphoria which leads to the discrimination. Only a transgendered woman needs breasts to address the very condition from which she suffers and which only transsexuals suffer, of living in a body which is not that of the gender which they feel themselves to be.
46.	In a later part of the skeleton argument Ms Harrison submits:
50. It is now well recognised that impediments to the transsexual achieving a congruent physical, psychological, social and legal status and identity engages and frequently breaches Article 8 ECHR in the absence of strong justification for the interference.
...
53. ….
(ii) To require a trans patient to have an additional severe and debilitating mental illness over and above the gender identity disorder as a condition for funding clinically recommended breast augmentation as part of gender reassignment treatment, is a breach of Article 8 ECHR as constituting a disproportionate interference with the right to personal identity and private life. 
(iii) To require trans patients to demonstrate by way of clinically verifiable studies that breast augmentation when clinically recommended as part of gender reassignment treatment is an effective treatment, is to place a disproportionate burden on the Applicant in breach of Article 8 ECHR. Van Kuck v Germany (2003) 37 EHRR 51. 
47.	Mr Goudie accepts:
…that, in deciding which treatments to designate as “core” and “non-core” the PCT sought to achieve parity between GID patients and natal women with similar level of health status impairment. Thus it is accepted that part of the reasoning used by the PCT to refuse to fund breast augmentations for GID patients was that natal women with a similar level of health status impairment were refused such treatment.
48.	Mr Goudie submits that:
The court is invited to note that the comparison was not with natal women who wanted breast augmentation for aesthetic purposes but natal women who desired the operation “with similar health status impairment”.
49.	Having cited passages from the judgment of the Privy Council in Matadeen v Pointu [1999] AC 98, Mr Goudie submits:
…the legal issue on treating unalike cases alike must be whether the PCT, acting through the Berkshire Priorities Committee, could rationally have taken the decision that there was not a “valid reason” to treat transsexual women and natal women differently when seeking breast augmentation operations.
50.	Mr Goudie gives the following reasons to justify the decision not to discriminate between transfemales like the appellant and natal women in granting access to breast augmentation surgery. He refers to a passage in the EHRC submissions dealing with exceptional circumstances. The EHRC refers to the “exceptional significance for transsexuals [like the appellant] of having visible secondary sexual characteristics of their chosen gender”. Using that passage he continues:
a. The alleged “exceptional significance” of a breast augmentation operation for MtF transsexuals was not identified by the PCT’s researches at the time that the PCT did its research into GID;
b. The alleged “exceptional significance” of a breast augmentation operation was not brought to the attention of the PCT when it consulted the leading experts in the field. It may be the view of the EHRC and the Appellant that a breast augmentation operation for a MtF transsexual has an exceptional significance but there was no clear consensus leading to that conclusion as a result of the PCT’s consultation;
c. The argument that natal women and GID patients must be treated differently in the provision of breast augmentation surgery is specifically rejected by a psychiatrist providing GID services, Dr Christopher Bass ... ;
d. Once this issue was raised, the PCT commissioned research by a firm specialising in high quality evidence based analysis, Bazian, into the evidence around breast augmentation operations. This does not support the case advanced by the Appellant and the EHRC that a breast augmentation has an “exceptional significance” or that the operation is clinically effective to advance the health status by meeting such a condition.
51.	Although not necessary for the decision in this appeal, I will offer a view on the competing submissions.
52.	Discrimination is a problematical word, because all choice involves discrimination. The vice against which both article 14 of the ECHR and our domestic equality legislation are directed is the making of certain choices on grounds, or with effects, which are unacceptable. 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.
53.	Two well-known cases help to clarify the answer. In James v Eastleigh Borough Council [1990] 2 AC 751 women had been admitted to a municipal swimming pool free of charge from the age of 60 while men had to wait until they were 65. Because age discrimination was not then unlawful, age was not a relevant characteristic in detecting discrimination. But because gender was by law a relevant characteristic, the requirement that men should wait 5 years longer than women for free swimming was unlawfully discriminatory. In Webb v EMO Air Cargo Ltd Case C-32/93 [1994] ICR 770, where the claimant had been dismissed because she was pregnant, the courts of this country had taken the view that the relevant characteristic was medical incapacity, with the result that it was legitimate to treat the claimant in the same way as a man with a long-term illness would be treated. The ECJ disagreed: since pregnancy was not an illness but was an integral aspect of gender, to treat a pregnant woman as a sick man would be treated was to discriminate by equiparating the two. The relevant characteristic, in other words, was not incapacity but gender.
54.	Thus in order to be relevant a characteristic has logically to relate to the purpose or effect of the distinction or equiparation which it is sought to make. In the present case the material purpose of the PCT’s policies is to regulate eligibility for breast augmentation. Is it relevant to this that one of the women seeking treatment was born a woman whereas the other has become a woman or seeks to become a woman? In the judgment of the PCT, it is not: either may have a sufficient or an insufficient reason for wanting or needing augmentation, irrespective of her biological and physiological history. Would it then be relevant that one needs it for good clinical reasons and the other does not? Clearly it would.
55.	Putting it another way, it is necessary to identify what is relevant to the comparison between a trans-female with undeveloped breasts and a natal female also with undeveloped breasts. Ms Harrison submits that it is, or prominently includes, the fact that dysphoria is integral to the transsexual condition: indeed it is part of its name. For a natal woman dysphoria is adventitious. Mr Goudie accepts that this may be subjectively true, but argues that clinically it is irrelevant: what is relevant is that both women at the time of presentation have the same reason for seeking the same treatment.
56.	The issue may thus come down to a choice of points of view. A third such point of view could well be that of the natal woman who stands to be excluded from breast augmentation treatment if she is treated as having lower priority than a transgendered woman. A fourth may be that of the court. But the court is not appropriately placed to make either clinical or budgetary judgments about publicly funded healthcare: its role is in general limited to keeping decision-making within the law. The claimant’s point of view – that she is different from and more needy than a natal woman with a similar problem – matters; but it is a point of view which has to take its place within both legal and clinical criteria. The material legal criteria are that gender and clinical needs are both relevant characteristics. Their aetiology is relevant diagnostically, but what are more critically relevant are the ethical and clinical judgment of the PCT, provided these do not transgress the law.
57.	It follows that Mr Goudie is entitled to take his stand (see paragraph 50 above) on the PCT’s own research and conclusions. Ms Harrison for her part is equally entitled to contest these, but she cannot succeed unless she can show that in some material respect the PCT has broken the law in the categories it has adopted or the choices it has made. For the reasons I have given I do not consider that she has done this.
58.	In the light of my earlier conclusions on the issue of clinical effectiveness and this conclusion, it is not necessary to deal with grounds 4 and 5, which relate respectively to section 76A(1) of the Sex Discrimination Act 1975 Articles 8 and 14 of the ECHR. 
59.	I turn in conclusion to ground 6.  Ground 6 assumes the policies to be lawful and challenges the rationality of the decision not to fund breast augmentation surgery because of exceptional circumstances. Ms Harrison submits that having regard to the opinion of the appellant’s treating physicians of the     appellant’s history and vulnerability to significant depression including self harm and the significant risk of deterioration in her mental health if the breast augmentation was not performed, the exceptional circumstances proviso was satisfied. 
60.	Mr Goudie points to the minutes of the meeting leading to the decision letter. It was noted that :
both the Psychiatrist and GP letters were more “robust” in their position statements than previously received, both letters reiterated the case history and did not provide new evidence. 
A member :
asked how the trust would manage funding issues if we accepted the principle that potential distress and future possibilities of a negative reaction due to denial of service was a rationale for prioritising care and funding. All agreed that this position was not an acceptable basis for decision making.
61.	It was agreed: 
[AC] continues to have “chronic mild to moderate distress” due to a denial of wish to have procedure. 
62.	In the decision letter the following point was made:
It follows that a patient who wishes to obtain funding of established policies is required to show three things:

a. That the patient’s case constitutes exceptional circumstances;
b. That there is evidence of significant health benefit from the requested treatment; and
c. There is evidence of the intervention improving health status.
The minutes of the meeting have confirmed that the committee’s assessment was that your client had not demonstrated exceptional circumstances. As this is a threshold condition to considering the other two limbs of the test it follows that the Case Review Committee was not entitled to proceed to consider whether funding for your client would be justified under the two remaining limbs of the test. 
63.	I do not believe that this is an accurate statement of the exceptional circumstances proviso which, as I have shown, states: 
Exceptional circumstances may be considered where there is evidence of significant health impairment and there is also evidence of the intervention improving health status.
64.	The decision maker should first decide whether there is evidence of significant health impairment and evidence of the intervention improving health status. If there is, then the decision maker is enjoined to ask whether there are exceptional circumstances.  The use of the phrase “exceptional circumstances” tells the decision maker that the number of persons who will succeed under the proviso is expected to be a small minority.  It does not otherwise provide a helpful legal test for the decision maker (see Huang v. Secretary of State for the Home Department [2007] 2 AC 167, paragraph 20).  
65.	However, in my view this is unimportant in the light of the conclusions of the Committee as shown in the minutes. Those conclusions show that, in the view of the Committee, there was no evidence of significant health impairment.  Indeed the Committee compared the appellant’s mental state as determined by the Committee with another case involving a young natal woman for whom breast augmentation surgery had been funded and who had a significant level of psychological illness.
66.	In my view the conclusion of the Committee that the exceptional circumstances proviso did not apply was a conclusion which the Committee was entitled to reach and is not irrational.
Conclusion
67.	For these reasons I would dismiss the appeal. 
Sedley LJ
68.	I agree.
Master of the Rolls
69.	I also agree.