Clare Dyer legal correspondent, BMJ

An English health authority acted unlawfully in refusing to pay for sex change operations for three transsexuals on the grounds that they had “no overriding clinical need,” the Court of Appeal in London decided last week. The ruling is a warning to NHS managers that anything that amounts to a blanket ban on a treatment for a medically recognised condition is likely to fall foul of the courts.

The ruling will not entitle any transsexual to an operation on the NHS. But health authorities will now be unable to rule out funding such operations entirely. The appeal court upheld a High Court ruling last December that North West Lancashire authority acted unlawfully in refusing to pay for gender re-assignment surgery for three male transsexuals wanting to become female (named only as A, aged 22, and D and G, both aged 51), who had been living as women and undergoing hormone treatment for years. Two had been assessed by psychiatrists as suitable for surgery, and one was awaiting assessment.

The health authority will have to pay two thirds of the estimated £100000 ($160000) legal costs for the three transsexuals, who were receiving legal aid.

Their solicitor, Stephen Lodge, said: “We trust that now the health authority will reconsider its policy and agree to fund our clients’ treatment without further delay.” North West Lancashire’s chief executive, David Edmundson, said: “This was never done just because of the cost of the treatment. We are saying that we have so much money and we have to ensure it is used as effectively as possible.”

Lord Justice Auld declared the authority’s policy flawed. It did not treat transsexualism as an illness “but as an attitude or state of mind which does not warrant medical treatment,” he said. Lord Justice Buxton said that the authority had not given “rational consideration” to the question before deciding to “give no funding at all to a procedure supported by respectable clinicians and psychiatrists, which is said to be necessary in certain cases to relieve extreme mental distress.”