The Appellant (C), who was undergoing gender reassignment treatment, appealed against a decision dismissing her application for judicial review of the PCT’s refusal to fund breast augmentation surgery.

C had commenced hormone treatment in 1996. However, this had failed to significantly increase the size of her breasts and she therefore made an application to the PCT for funding to pay for breast augmentation surgery in May 2006.

The PCT considered the application under its Gender Dysphoria Policy (GDP). Under this policy, breast augmentation was considered a ‘non-core’ procedure which it was not prepared to fund save for in exceptional circumstances, such as where there was evidence of significant health impairment. C’s application was justified on the basis that it would enable her to feel more feminine. There was no suggestion that there was a serious mental health or psychological element.

The PCT also considered whether C’s request for treatment could be funded under its cosmetic breast surgery policy. Breast augmentation was classified as a ‘low priority’ under this policy and the PCT concluded that funding could not be justified.

C’s application was based on a number of submissions. Firstly, the PCT had irrationally treated breast augmentation surgery as a cosmetic treatment which did not provide a clinical benefit for a person diagnosed as a transsexual; secondly, the PCT had failed to consider both policies when reaching its decision; thirdly, it was wrong to require a transfemale in her position to satisfy the exceptional circumstances threshold; and finally, by treating requests for breast augmentation surgery by transfemales in the same way as similar requests by natal women, the PCT was treating unlike cases alike.

The Court of Appeal upheld the decision in the PCT’s favour for the following reasons:

  1. The PCT could not be required to fund such surgery unless there was evidence of a clinical benefit. It had reasonably concluded here that no such evidence existed.  
  2. The PCT had clearly considered the cosmetic breast surgery policy having concluded that C’s application under the GDP failed.  
  3. The PCT, in exercising its statutory responsibility to break even in each financial year, had to make very difficult decisions as to which procedures to fund. Its decision in this case was not irrational.  
  4. The PCT was not discriminating in treating requests for breast augmentation between natal females and transsexuals alike. The critical question was what made a characteristic relevant and in deciding this issue, the PCT had regard to both gender and clinical needs, comparing like for like, ie C as against a natal female with “similar health status impairment issues”.  

R (on the application of C)(Appellant) v Berkshire West Primary Care Trust (Respondent) & Equality and Human Rights Commission (Intervener) [2011] EWCA Civ 237