Victory in fight for sex change surgery (The Scotsman)
22nd December 1998 Victory in fight for sex change surgeryJOHN ASTON THREE transsexuals yesterday won a landmark ruling over a health authority’s refusal to pay for sex change surgery. The test case at the High Court in London challenged North West Lancashire Health Authority’s decision not to pay for operations, each costing between £7,000 and £9,000, which specialists say are vital to complete the male-to-female transformation. Mr Justice Hidden ruled that the decision was “unlawful and irrational” and had been taken without considering the proper treatment for a recognised illness. Miss A, aged 21, Miss D and Miss G, both 50, were refused gender reassignment surgery in 1996 and 1997 after it was decided none had shown a demonstrable “overriding clinical need” for treatment. The health authority, which covers Blackpool and Preston, said it was entitled to take into account its own “scarce resources” and refuse funding. But the judge ruled that it was not entitled to operate a policy impeding its duty to provide treatment “for the prevention of illness and care of persons suffering from an illness”. Later Stephen Lodge, the solicitor for the applicants, said: “This is an important test case. We have successfully settled a number of previous cases, but this is the first time the issue has been fully considered by the court and we are delighted with the decision. Other health authorities will now have to assess whether their policies for the treatment of transsexuals are lawful in the light of this judgment. “We hope it will be easier for transsexuals to obtain the treatment they so clearly need, and that it will help to alleviate the present injustice of arbitrary and unequal treatment by post code.” Miss A, who was in court, said: “I am not surprised. It is the end of two years of hard work in fighting this legal battle. They should not have discriminated by post code. This legal battle has cost at least £47,000 - enough to pay for several operations.” Gerard Clarke, the solicitor for the health authority, asked for leave to appeal. “This is a matter which concerns not only this particular authority, but many other authorities. This is going to be a matter of considerable importance throughout the health service.” He had previously told the court there was appropriate alternative treatment available for transsexuals - those suffering from gender identity disorder - in the form of psychotherapy to reconcile them with their biological status. But Nicholas Blake, QC, and Stephanie Harrison, who appeared for the applicants, said senior health officials had misunderstood the nature of the illness. It was not on a par with “body image” cases, which were often cosmetic, such as weight reduction, tattoo removal or surgery to reduce the size of breasts or noses. The lawyers accused the authority of applying, since March 1995, an unlawful blanket policy of not funding gender reassignment treatment. They said of the applicants: “All three live their lives as women. They have had hormone treatment and have the physical characteristics of both sexes.” They were in the difficult position of “still retaining the physical characteristics of the sex they feel strongly and profoundly they don’t belong to”. Ms Harrison asked the judge to imagine “the distress and humiliation” they had to endure and the difficulty in making and maintaining social and personal relationships. They were “afraid of being exposed in the intolerable state of limbo because of a refusal to complete the treatment their clinical consultants say they need”. The health authority’s “flawed and irrational” policy meant that gender identity disorder could not provide an “overriding clinical need” to trigger funding. To qualify, a sufferer also had to be a victim of an additional illness. She added that the illness from which the three applicants were suffering could lead to self-harm and suicide. To refuse funding to patients who had already started sex change treatment on resource grounds was a false economy because of the cost to the NHS of continuing to treat the applicants for depression and other symptoms. Mr Justice Hidden said he was satisfied the arguments were right and the health authority had arrived at its decision without considering relevant matters, such as what constituted the proper treatment of transsexuality. It had also fettered the exercise of its own discretion by applying what amounted to an unlawful policy. Copyright © Scotsman Publications Ltd, 1998 |
