stephen gilmore king’s college london 7 september 2013

The Legal Status of Transgender Persons in

England and WalesStephen Gilmore

King’s College London7 September 2013

Corbett v Corbett [1971] P 83 and R v Tan [1983] QB 1053‘Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must … be biological... the law should adopt in the first place, the first three of the doctors' criteria, ie the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.’

The Common law

Corbett endorsed by House of Lords in:Bellinger v Bellinger [2003] UKHL 21.

Distinguishing between a transsexual person and intersexual person.

W v W (Physical Inter-sex) [2001] Fam 111, Charles J.

Common law

Report of the Interdepartmental Working Group on Transsexual People (Home Office, 2000

Goodwin v United Kingdom; I v United Kingdom (2002) 35 EHRR 18, (July 2002, breaches of ECHR, Arts 8 and 12).

Bellinger v Bellinger [2003] UKHL 21 (April 2003)

Gender Recognition Act 2004Background

Draft Gender Recognition Bill, Cm 5875 (July 2003)

Joint Committee on Human Rights Nineteenth Report of Session 2002–2003 HL 188–I, HC 1276–I (TSO, 2003)

Gender Recognition Act 2004 (Royal Assent: 1 July 2004)

Gender Recognition Act 2004Background

Must be aged at least 18 years Two bases :

living in the other gender (s 1(1)(a)); or

having changed gender under the law of a country or territory outside the UK (s 1(1)(b).

‘the acquired gender' (s 1(2)).

Application for Gender RecongitionCertificate

legal member (7–year general qualification ); a medical member (a registered medical

practitioner or a registered psychologist) Panels considering an application under s 1(1)

(a) must consist of at least one medical and one legal member (Sch 1, para 4(2)).

Only one legal member is required for applications under ss 1(1)(b).

Determined in private, usually no hearing.

The Gender Recognition Panel s 1(3) and Sch 1

An application under s 1(1)(a) must be granted if the GRP is satisfied that the applicant:

‘(a) has or has had gender dysphoria, (b) has lived in the acquired gender

throughout the period of two years ending with the date on which the application is made,

(c) intends to continue to live in the acquired gender until death, and

(d) complies with the requirements imposed by and under section 3.' (s 2(1))

Criteria

Must be granted if the country or territory has been approved by order of the Secretary of State and the applicant complies with the requirements imposed by and under s 3 with regards to evidence (s 2(2))

Criteria for s1(1)(b)

• Report by a registered medical practitioner or registered psychologist who practises in the field of gender dysphoria and by another medical practitioner, who need not necessarily be a specialist;

Evidence

• a statutory declaration that the applicant has lived in the acquired gender for 2 years preceding the application and intends to live in the acquired gender until death (s 3(4));

• a statutory declaration as to whether or not the applicant is married (s 3(6));

• further evidence supplied as required by the Secretary of State, the GRP or according to the wishes of the applicant (s 3(6)).

Evidence

S 3A(3) – (6) and s 3B In protected marriage Lived in gender for 6 years

Only one medical report required GRP need only have a legal member Declaration of spouse’s consent

Modified evidence process introduced byMarriage (Same Sex Couples) Act 2013

The JCHR viewed this as a ‘sensitive and sensible compromise' (at para 29), given the safeguard of scrutiny by a GRP. It would: ‘avoid discriminating against people who for some medical reason unconnected with their gender are unsuitable for particular kinds of surgical, hormonal or other treatment.' (para 28)

Surgery/treatment is not required

R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977 (treatment must be available on basis of clinical need).

But treatment is provided by NHS

Where married or civil partner: interim GRC (s 4(3)).

Interim GRC is a ground for annulment of marriage or civil partnership (proceedings within 6 months of issue of the interim GRC).

It is a pre-requisite that any existing marriage to which the applicant is a party is dissolved or annulled

Issuing a GRC: s 4

New evidence requirements in s 3(6A) – (6C):

Declaration of where marriage registered;

Declaration by applicant’s spouse that they consent to marriage continuing, or applicant’s declaration that spouse has not made such a declaration.

Marriage (Same Sex Couples) Act 2013

Section 4(3A): full GRC where:

Single applicant; Party to protected marriage and spouse

consents Applicant who is party to a protected civil

partnership and GRP has decided to issue other party with a full GRC.

2013 Act amendments (cont)

S 4(3B): interim GRC where - Applicant in protected marriage and spouse

has not consented

Applicants in non-protected marriages

Applicants in non-protected civil partnerships.

2013 amendments (cont/d)

S 4A Upgrade to full GRC if spouse consents

after interim GRC (6 month time limit from issue)

Upgrade where civil partnership converted to a marriage within 6 months.

2013 amendments (cont/d)

S 5B

Simultaneous issue of certificates to civil partners to ensure continuity.

Ss 11A and 11BContinuity of marriage/cp not affected by relevant change in gender.

2013 amendments (cont/d)Continuity of marriage/cp

Not open to public inspection or search. On receipt, the registrar makes an entry in the GRR,

marks the birth register and makes traceable the connection between those entries (none of which is to be disclosed publicly). It is then possible to obtain certified copies of entries in the GRR and short certificates of birth compiled from it, both of which must not disclose that the entry or compilation is from the GRR.

The applicant's confidentiality throughout this process is protected by s 22, which, subject to defences in s 22(4), makes it an offence for a person to disclose information, acquired in an official capacity, concerning the application or the person's previous gender.

The Gender Recognition Register

‘the person's gender becomes for all purposes the acquired gender' (s 9(1)

s 9(1) ‘does not affect things done, or events occurring, before the certificate is issued'

operates ‘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)' (s 9(2)).

Effect of issue of GRC

Does not affect disposal or devolution of property under a will, before the Act was implemented (s 15, and see also s 18 where expectations are defeated by the acquired gender).

Effect of issue of GRC

The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of the child.

See J v C [2006] EWCA Civ 551

Parenthood (s 12)

Marriage and civil partnership (s 11 and sch 4) – being of the acquired gender is a ground for annulment

Social security benefits and pensionsSee e.g., Timbrell v Secretary of State for

Work and Pensions [2010] EWCA Civ 701. Gender specific offences (s 20)

Impact on other areas of law

Equality Act 2010

HM Government, Advancing transgender equality: a plan for action (December, 2011)

Discrimination