The Legal Status of Transgender Persons in England and Wales

1. The Legal Status of Transgender Persons in England and Wales Stephen Gilmore King’s College London 7 September 2013

2. The Common law • 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.’

3. 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.

4. Gender Recognition Act 2004Background • 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)

5. 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)

6. Application for Gender RecongitionCertificate 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)).

7. The Gender Recognition Panel s 1(3) and Sch 1 • 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.

8. Criteria • 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))

9. Criteria for s1(1)(b) 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))

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

11. 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)).

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

13. Surgery/treatment is not required • 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)

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

15. Issuing a GRC: s 4 • 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

16. Marriage (Same Sex Couples) Act 2013 • 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.

17. 2013 Act amendments (cont) • 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.

18. 2013 amendments (cont/d) • 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.

19. 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.

20. 2013 amendments (cont/d)Continuity of marriage/cp • S 5B • Simultaneous issue of certificates to civil partners to ensure continuity. • Ss 11A and 11B Continuity of marriage/cp not affected by relevant change in gender.

21. The Gender Recognition Register • 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.

22. Effect of issue of GRC • ‘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)).

23. 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).

24. Parenthood (s 12) 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

25. Impact on other areas of law • Marriage and civil partnership (s 11 and sch 4) – being of the acquired gender is a ground for annulment • Social security benefits and pensions See e.g., Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701. • Gender specific offences (s 20)

26. Discrimination • Equality Act 2010 • HM Government, Advancing transgender equality: a plan for action (December, 2011)