Facts: A, D and G suffered from gender identity dysphoria, commonly known as transsexualism, and had been diagnosed by a specialist consultant as having a clinical need for gender reassignment surgery. The health authority refused to fund this treatment, on the basis of a policy that categorised gender reassignment surgery as a form of treatment that had not been tested by carefully conducted scientific research and where it was uncertain whether the interventions would be effective, ineffective or harmful, so that treatment would only be funded where there was evidence of overriding clinical need, or exceptional circumstances.

Judgment: the Court of Appeal (Auld, Buxton and May LJJ) held that, although the health authority had acknowledged to the court that transsexualism was an illness, reading the health authority’s policy, together with the evidence that it had filed in the proceedings, it was apparent that the health authority had proceeded on the basis that transsexualism was not an illness. Therefore, the health authority’s policy and its decision-making in this case were flawed by its failure to take into account the fact that, as it itself accepted, transsexualism was an illness. The criteria of ‘overriding clinical need’ or ‘exceptional circumstances’ failed to rescue the policy, or its application, because the starting point – that transsexualism was not an illness – was flawed. Further in effect, on the facts, the health authority operated a ‘blanket policy’ not to fund gender reassignment surgery.