Jay v Secretary of State for Justice, Court of Appeal - Family Division, October 08, 2018, [2018] EWHC 2620 (Fam)

Resolution Date:October 08, 2018
Issuing Organization:Family Division
Actores:Jay v Secretary of State for Justice
 
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Case No: 2018/0033

Neutral Citation Number: [2018] EWHC 2620 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 8 October 2018

Before :

LORD JUSTICE BAKER

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IN THE MATTER OF THE GENDER RECOGNITION ACT

Between :

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Claire McCann (instructed by Howells Solicitors) for the Appellant

Brendan McGurk (instructed by Treasury Solicitor) for the Respondent

Hearing dates: 27 June 2018

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Judgment

MR JUSTICE BAKER :

  1. The appellant, hereafter referred to as Ms Jay, was born a male, has been married three times and has seven children. For many years, however, Ms Jay has been uncomfortable in the male gender and for the last few years has lived as a woman. She has made a series of applications for formal recognition of her change of gender under the Gender Recognition Act 2004 (``GRA''). All of the applications have been refused by the Gender Recognition Panel. She has now filed a notice of appeal against the third refusal. This reserved judgment sets out my decision on the appeal.

  2. Ms Jay has had a number of problems in her life, and has been convicted of a number of criminal offences as a result of which she has spent several years in prison. This judgment does not deal with any of those matters. In addition, the court is of course aware of the wider public debate about gender recognition. That debate is not directly relevant to this appeal which focuses specifically on the panel's decision in this case.

    The diagnostic and legal framework

  3. Under ICD-10 F 64.0, transsexualism is defined as having three criteria.

  4. The desire to live and be accepted as a member of the opposite sex, usually accompanied by the wish to make his or her body as congruent as possible with the preferred sex with surgery and hormone treatment.

  5. The transsexual identity has been present persistently for at least two years.

  6. The disorder is not a symptom of another mental disorder or a chromosomal abnormality.

  7. The GRA was passed in response to the judgment of the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR 18. The claim in Goodwin was brought by a transsexual who had been permitted under domestic law to change her name but was unable to change a number of official government records which listed her as male, and as a result she continued to be treated as male for purposes of social security, national insurance, pensions and retirement age. Her claim that this failure to amend her official records constituted a violation of her rights under articles 8 and 12 of ECHR was upheld unanimously by the European Court. At paragraph 77 to 78 of the judgment, the Court stated:

    ``77. ... serious interference with private life can arise when the state of domestic law conflicts with an important aspect of personal identity. The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.

  8. In this case, as in many others, the applicant's gender re-assignment was carried out by the National Health Service, which recognises the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under article 8 of the Convention. Where a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permits the artificial insemination of a woman living with a female to male transsexual, it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.''

  9. The Court concluded, at paragraph 90, that

    `` ... the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone in not quite one gender or the other is no longer sustainable.''

  10. Following this judgment, and the subsequent declaration of incompatibility made by the House of Lords in Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467, Parliament passed the GRA in 2004. The following provisions of the Act are relevant to this appeal. Under s.1(1)

    ``A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of -

    (a) living in the other gender, or

    (b) having changed gender under the law of a country or territory outside the United Kingdom''

    The application in this case was made under s.1(1)(a) and it is unnecessary to consider the subsequent provisions relating to s.1(1)(b). Under s.1(2):

    ``In this Act ``the acquired gender'', in relation to a person by whom an application under sub-section 1 is or has been made, means -

    (a) in the case of an application under paragraph (a) of that sub-section, the gender in which the person is living...''

  11. Under s.1(3):

    ``An application under subsection (1) is to be determined by a Gender Recognition Panel.''

    S.2(1) provides:

    ``In the case of an application under section 1(1)(a), the Panel must grant the application if 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.25 defines ``gender dysphoria'' as meaning ``the disorder variously referred to as gender dysphoria, gender identity disorder and transsexualism''.

  12. S.2(3) provides, so far as relevant to this appeal:

    ``The Panel must reject an application under s.1(1) if not required by [s.2(1)] ... to grant it.''

    S.4(1) provides:

    ``If a Gender Recognition Panel grants an application under s.1(1), it must issue a gender recognition certificate to the applicant.''

  13. S.3 provides, so far as relevant to this appeal:

    ``(1) An application under s.1(1)(a) must include either:

    (a) a report made by a registered medical practitioner practising in the field of gender dysphoria and a report by another registered medical practitioner (who may, but need not, practice in that field), or

    (b) a report made by a registered psychologist practising in that field and the report made by a registered medical practitioner (who may, but need not, practice in that field).

    (2) But subsection (1) is not complied with unless a report required by that subsection and made by

    (a) a registered medical practitioner, or

    (b) a registered psychologist

    practising in the field of gender dysphoria includes details of the diagnosis of the applicant's gender dysphoria.

    (3) And subsection (1) is not complied with in a case where

    (a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or

    (b) treatment for that purpose has been prescribed or planned for the applicant

    unless at least one of the reports required by that subsection includes details of it.

    (4) An application under s.1(1)(a) must also include a statutory declaration by the applicant that the applicant meets the conditions in s.2(1)(b) and (c).

    ...

    (6) Any application under s.1(1) must include

    (a) a statutory declaration as to whether or not the applicant is married or has a civil partner,

    (b) any other information or evidence required by an order made by the Secretary of State, and

    (c) any other information or evidence which the Panel which is to determine the application may require,

    and may include any other information or evidence which the applicant wishes to include.''

  14. S.8 is headed ``Appeals etc''. The relevant provisions are as follows:

    ``(1) An applicant to a Gender Recognition Panel under s.1(1) ... may appeal to the High Court, family court, or Court of Session on a point of law against a decision by the Panel to reject the application.

    (2) An appeal under subsection (1) must be heard in private if applicant so requests.

    (3) On such an appeal, the court must

    (a) allow the appeal and issue the certificate applied for,

    (b) allow the appeal and refer the matter to the same or another Panel for reconsideration, or

    (c) dismiss the appeal.

    (4) If an application under s.1(1) is rejected, the applicant may not make another application before the end of the period of six months beginning with the date on which it is rejected.''

  15. Under s.9(1):

    ``Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).''

    S.9(2) provides;

    ``Subsection (1) does not affect things done, or events occurring, before the certificate is issued, but it does operate 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).''

    ...

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