The decision in A v Chief Constable of West Yorkshire [2004] UKHL 21, [2005] 1 AC 51 has been the subject of much recent analysis by those involved, and those interested, in the hearing before the Supreme Court in For Women Scotland v Scottish Ministers. The Scottish Ministers (Respondent) and Amnesty International (intervening) have relied on it to support the proposition that recognition of trans people in their acquired gender is longstanding and follows the line of case law necessary to give effect to the decision in P v S and Cornwall County Council [1996] ECR I-2143 and EU sex discrimination law.
Lord Bingham, giving the leading judgment, stated that [11]:
In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.
(Aidan O’Neill KC, on behalf of For Women Scotland, deprecated this as the “what you don’t know can’t hurt you” principle).
A may, in the event, prove to be of little significance in For Women Scotland. There is no obvious route to reconciling the facts in A with the requirements of EU law other than by a tortuous route through the Sex Discrimination Act 1975. Happily, that may now be circumnavigated by the protections on grounds of gender reassignment that follow from section 7 Equality Act 2010. But that will not put to bed the question as to whether preventing a transgender person from carrying out intimate searches (for instance) may amount to unlawful discrimination.
The answer to the question is likely to be found in how the legal and societal understanding of consent has transformed in the twenty years since Lord Bingham’s speech.
Leaving aside how the visual test is undertaken and by whom, this displays, at best, a remarkable ignorance and, at worst, a shocking indifference to the human rights of women who do not consent to being intimately searched by males.
This transformation has been seen in the criminal law, where the Sexual Offences Act 2003 defines the giving of consent as where a person “agrees by choice, and has the freedom and capacity to make that choice”. Applying this definition, the Court has found that the complainants did not consent where they were deceived as to the sex of the person with whom they were having intercourse (R v McNally [2013] 2 Cr.App.R.), use of a condom (Assange v Sweden (2011) 108(44) L.S.G. 17) or an intention to withdraw before ejaculation (R(F) v DPP [2013] 2 Cr. App. R. 21).
The landscape of consent has also been transformed in various different areas of civil law.
In 2015, the Supreme Court in Montgomery v Lanarkshire [2015] UKSC 11 [2015] 1 AC 1430 overturned decades of conflicting authority and affirmed that the standard of consent required to defeat claims in medical negligence was the standard of “informed consent”, and that information as to risk must be given proactively unless the patient positively indicates that he or she does not wish to receive it, or that (exceptionally) there was a therapeutic reason why such information could not be given; Lord Kerr and Lord Reed, in the leading judgment, were emphatic that this could not be the foundation of the general rule [85]. Lady Hale stated that [116]:
Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.
Notably, Lady Hale also gave a judgment concurring with Lord Bingham in A v Chief Constable in which she envisaged the effect of the Gender Recognition Act 2004 as being that “it will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live”. Had the decision in Montgomery been made earlier, her consideration in A v Chief Constable might well have been different.
“Genuine autonomy” is not restricted in principle either to pregnant women or to medical negligence. It is echoed in the Mental Capacity Act 2005 (again post-dating the decision in A) where the criteria for making a capacitous decision include the person’s ability to understand relevant information, retain and use or weigh that information (sections 2 and 3). Even where a person does not have capacity, his or her wishes and feelings, beliefs and values, and other factors they would likely consider, are core aspects of any “best interests” decision taken under section 4.
Lady Hale’s usage of the term reflects the growing influence of the European Convention on Human Rights, and in particular Article 8, even in cases not directly concerned with alleged breaches of Convention rights, or the effect of those rights upon statutory interpretation.
Most obviously, the rights under Article 8: the principle of autonomy and the consequent principle that a loss of autonomy can be either prevented by injunctive relief or compensated for, has developed into a standalone tort, misuse of private information, Google v Vidal-Hall [2015] EWCA Civ 311 [2015] WLR (D) 156. The court has found that a lack of informed consent to the use of information amounts to a loss of autonomy in finding liability, and in measuring damages, see e.g. Ali v Channel 5 [2018] EWHC 298 (Ch).
“What you don’t know can’t hurt you” as a principle has been given short shrift in recent cases concerning alleged harassment contrary to the Protection from Harassment Act 1997 (again, the case law in relation to this Act is replete with the influence of Article 8). In Gerrard v ENRC [2020] EWHC 3241 (QB), [2021] EMLR 8, Richard Spearman KC (sitting as a Judge of the High Court) noted that
By their very nature, those particular types of conduct may well be carried out in such a way that, and with the intention that, they will be neither discovered nor discoverable by the victim. […] For one thing, the longer the acts remain concealed from the victim the longer the acts can be continued, and the more extensively they can be pursued, without the victim taking practical steps to avoid them, or legal steps to prevent them. For another, some perpetrators may derive satisfaction from knowing that, for example, their “watching and spying” is being carried out without the victim having any idea that they are being watched and spied upon. Further, a number of perpetrators will be concerned that they may be subject to criminal penalties or civil remedies if they are discovered.
Accordingly, if acts such as following, monitoring electronic communications, and watching and spying do not amount to the particular kind of harassment which constitutes stalking in circumstances where the perpetrator (1) conceals those acts, (2) has no intention that they should be discovered by the victim, and (3) reasonably believes that they will not be discovered (for example, because they are carried out with skill and care), that would greatly cut down the protection for victims which the PHA provides.
In 2019, the Divisional Court upheld the decision of the regulator to strike off a surgeon who had allegedly branded two patients’ replacement livers with his initials. The doctor had pleaded guilty to two charges of common assault. Neither patient was physically harmed by the branding, and it would never have been discovered if one of the patients had not required emergency surgery a few days after the original operation; the second alleged incident only came to light from a disclosure by an anaesthetist (following the first incident) many years after the event.
The relationship between the information available to a person and his or her enjoyment of physical autonomy, psychological integrity and dignity (as evident in these authorities and in statute) is a core element of the right to private life under Article 8 of the European Convention on Human Rights and in the Strasbourg jurisprudence. The Strasbourg court has found violations of Article 8 based on a lack of informed consent where:
– The police entered a person’s home, after he had cooperated to the extent of opening the door to them because the visit had been unannounced, Sabani v Belgium 53069/15 2022, [46];
– A person had not been given information as to the risks of adverse outcomes for medical procedures and treatment, Y.P. v Russia 43399/13 2022; [42] [53-59], Csoma v Romania, 8759/05 2013 [65-68]; Vilnes and Others v Norway 52806/09 and 22703/10 2013, [244];
– The state has failed to set up an appropriate regulatory framework and ensure professional standards providing for informed consent, Mayboroda v Ukraine 14709/07 2023 [62] [64].
Against this, a public authority does not itself enjoy the benefit of Convention rights because it cannot claim victim status. It is therefore difficult to see how a transgender police officer, who may only lawfully search a person by virtue of his or her role in exercise of that public function, could assert any countervailing “right” to do so if the subject of the search had not been informed of his or her right to object and of the fact of the police officer’s transgender status. Unless the police officer was willing for that information to be disclosed to prospective search subjects, the only possible means of protection of the hypothetical subject’s rights would be by a prohibition on the officer carrying out searches at all. Even if it were arguable that the police officer’s personal rights did, under Article 8, extend to the right to fulfil all aspects of their role (although this is doubtful), this would have to be balanced against the rights of prospective search subjects. The “intense focus test” applied to the balancing of conflicting rights operates from the starting point that neither party’s rights automatically takes precedence over the other: however, the right to autonomy, dignity and with it to informed consent are far more fundamental, wide-ranging and established facets of Article 8, and far more central to the concept of private life than the exercise of one aspect of a job which is fundamentally a public function inevitably involving some degree of interference with the subject’s rights in the first place. It is difficult to see any circumstances in which the rights of the prospective subject would not prevail.
In fact, this is addressed in A by Lord Rodger, whose judgment concurred with Lord Bingham and Lady Hale on the principle of liability but dissented on this point, [24] [25]:
[I]n my view, section 54(9) of PACE means that it would have been unlawful for Ms A to search female suspects and in practice she could not have searched — and indeed would not have wanted to search — male suspects.
[…]
[T]he logic of the directive, and of the 1975 Act, must be that, while a Chief Constable — who is the equivalent of an employer for these purposes — is not entitled to refuse to employ a transsexual as a police officer on the ground of her sex, equally, she is not entitled, except as provided by the legislation, to insist that she be employed in a different way on the ground of her sex. More particularly, she cannot insist that she be employed in such a way that her transsexuality will be kept confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that he be employed in such a way that his homosexuality or dyslexia is kept confidential in all circumstances. Of course, the Chief Constable should not compromise the officer’s privacy by revealing the matter in question when there is no good reason to do so. But, equally, an officer cannot insist that his or her Chief Constable should act unlawfully, or permit the officer to act unlawfully, in order to keep it confidential. More generally, the Chief Constable must be free to take all appropriate decisions relating to the deployment of the officer even if, in consequence, the matter becomes known.
Although Lord Bingham’s judgment post-dated the incorporation of rights contained in the European Convention on Human Rights into UK law, it concerned an index act which preceded it, and the passing consideration given to the “reasonable objections” of a search subject did not operate from a starting point of the Chief Constable’s duty to act compatibly with the Convention, or contain any analysis of the search subject’s rights under the Convention and in relation to informed consent. If that decision were taken today, and in the context of how societal and legal standards around consent have developed, it is unlikely that the court could come to the same conclusion. It is Lord Rodger’s analysis that has stood the test of time.
Beth Grossman is junior counsel to the Lesbian Interveners in For Women Scotland v Scottish Ministers. The views expressed above are personal views only.
