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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C, R (on the application of) v Secretary of State for Work and Pensions  EWCA Civ 47 (09 February 2016)
Cite as:  EWCA Civ 47,  WLR(D) 68,  PTSR 1344
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Honourable Mr Justice Simon
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE BLACK
| THE QUEEN ON THE APPLICATION OF C
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
(instructed by Bindmans LLP) for the Appellant
Mr CHARLES BOURNE QC and Ms HEATHER EMMERSON
(instructed by the Government Legal Department) for the Respondent
Hearing date : 1-2 December 2015
Crown Copyright ©
Lord Justice Elias :
"(1) Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards)".
"… an individual's personal autonomy makes him - should make him - master of those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image … He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the State shows an objective justification for doing so."
The justification for retaining the information
Detriment caused to the appellant
Systems and Policies
Transgender customer obtaining job seekers allowance: the SCR policy
The appellant's objections to the SCR policy
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine
(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
(2) whether the measure is rationally connected to the objective,
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. … In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure."
"In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd  2 SCR 713, 781-782 that the limitation of the protected right must be "one that it was reasonable for the legislature to impose", and that the courts were "not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line". This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois Elections Bd v Socialist Workers Party (1979) 440 US 173, 188-189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a "least restrictive means" test would allow only one legislative response to an objective that involved limiting a protected right."
"… the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) It puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
The judgment of Simon J
The grounds of appeal
Article 8: The Retention Policy and proportionality
The SCR policy and proportionality
Section 9 of the Gender Recognition Act
"To give effect to the undoubted fact that he did not have the male gender at the relevant time cannot possibly involve a lack of respect for his male gender as subsequently acquired."
Lord Justice Patten:
Lady Justice Black: