JK, R (on the application of) v The Secretary of State for the Home Department & Anor, Court of Appeal - Administrative Court, April 20, 2015, [2015] EWHC 990 (Admin)

Resolution Date:April 20, 2015
Issuing Organization:Administrative Court
Actores:JK, R (on the application of) v The Secretary of State for the Home Department & Anor
 
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Case No: CO/13977/2012

Neutral Citation Number: [2015] EWHC 990 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

Priory Courts, 33 Bull Street

Birmingham

Date: 20/04/2015

Before:

MR JUSTICE HICKINBOTTOM

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Between:

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Dan Squires (instructed by Public Law Solicitors) for the Claimant

Ben Jaffey (instructed by the Treasury Solicitor) for the Defendant

and the First Interested Party

The Second Interested Party neither appearing nor being represented

David Wolfe QC (instructed by Maxwell Gillott) for the Third Interested Parties

Hearing date: 11 December 2014

Further written submissions: 29 December 2014 - 2 February 2015

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JudgmentMr Justice Hickinbottom:

Introduction

  1. This claim gives rise to important issues concerning the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.

  2. The Claimant, JK, is a transgender woman (male to female transsexual); and I shall throughout this judgment refer to her by the female pronoun. She has two naturally conceived children from her marriage to the Second Interested Party, KK, namely the Third Interested Parties, AK and PK. In this claim, she challenges the requirement that she be recorded as ``father'' in the children's birth certificates, and the refusal of the Defendant (``the Registrar General'') to show her, by way of initial inclusion or amendment, as ``parent'' or ``father/parent'' on those birth certificates.

  3. Before me, Dan Squires has appeared for the Claimant, David Wolfe QC for AK and PK (who, being minors, appear by way of the Official Solicitor as their litigation friend), and Ben Jaffey for the Registrar General and the Secretary of State. I thank them at the outset for their particularly helpful contributions.

    The Factual Background

  4. The Claimant was born male, her birth certificate recording her name as CK (a male forename) and her sex as male. On 1 August 2007, she married KK. In early 2012, KK gave birth to a naturally conceived daughter, AK. The Claimant was the biological father; and, on AK's birth certificate, she was identified as the father, in the name CK.

  5. However, by this time, the Claimant felt the desire to live as a woman; and, in April 2012, she was referred by her doctor to Nottingham Gender Clinic, where her first appointment was booked for 19 June 2012. In the meantime, on 10 June 2012, by deed poll, she changed her name to JK (a female forename), absolutely and entirely renouncing her former name of CK and the use of her former title ``Mr'' in favour of ``Mrs''. From that date, she has lived as a woman.

  6. At the clinic, she was assessed and diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment, which is on-going. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. She is now on a waiting list for that surgery.

  7. However, before the Claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the Claimant.

  8. On 15 September 2012, the Claimant wrote to the relevant local registrar for births asking whether, either immediately or at a time when the Claimant had been granted a Gender Recognition Certificate (``GRC''):

    i) AK's birth could be re-registered, with the new registration showing the Claimant's new name of JK, and with her identified as ``parent'' rather than as ``father''; and

    ii) the registration of the second child, when born, could show that name and description.

  9. Correspondence ensued between the relevant Superintendent Registrar and the Claimant, in which, by 24 November 2012, the Registrar had made clear that the law, as it stood, required the Claimant to be registered in both cases as the child's father; and in any event, in respect of AK, there was no power to re-register or amend the register as JK wished.

  10. This claim was issued, protectively, on 27 December 2012; but, by an order on 2 January 2013, it was stayed pending the birth and registration of the Claimant's second child. The same order granted the Claimant and her children anonymity.

  11. The Claimant's second child, PK, was born in Spring 2013. On 18 June 2013, the Claimant and her wife attended the Register Office, where they met the Superintendent Registrar. The Claimant said that she was the biological father of the baby, but that she wished to be registered as his ``parent'' or, if that were not possible, as ``father/parent''; but the Registrar confirmed that that was not legally possible, informing the Claimant and her wife, in appropriate lay terms, of the relevant legal provisions. The Claimant rejected the Registrar's suggestion that her former name of CK was entered on the certificate as a previous name - which would have linked the birth certificate with that of AK - because she did not think using that name was appropriate in view of her transition and the declarations in her deed poll. The Registrar therefore completed the form showing KK as ``mother'' and the Claimant, in her name JK, as ``father''.

  12. The Claimant's evidence as to what the Registrar said about birth certificates was as follows (paragraph 14 of her first statement dated 28 June 2013):

    ``The Registrar then completed the details and printed a copy of the birth certificate for us to check and [KK] signed it. The Registrar then explained that we would be given a free copy of the short birth certificate but she said that it was only useful for child benefit and banks, and that most places would only take a full birth certificate. She said we would need a full birth certificate for `passports, driving licences, and most other things really' so that they recommend that we should buy at least one full birth certificate. We agreed and bought two copies. She printed the birth certificates and showed us the short one which she said was `pretty useless, increasingly useless really'''.

  13. On 2 July 2013, the Claimant served amended grounds in this claim, reflecting the birth and registration of PK; and seeking to add AK and PK as additional Claimants. On 5 August 2013, I directed that the Claim Form and Summary Grounds of Resistance be served on the Official Solicitor, with a request that he act for AK and PK as their interests, it seemed to me, were not necessarily the same as those of the Claimant. The Official Solicitor kindly agreed to act; and, on 20 December 2013, Stewart J joined AK and PK as Interested Parties, and gave the Claimant permission to proceed. On 19 May 2014, Andrews J gave the parties permission to instruct as a joint expert Professor Richard Green (a psychiatrist specialising in transgender and sexual identity), particularly upon how the issues in this claim might affect the interests of AK and PK.

  14. The Registrar General's Summary Grounds raised another issue, namely whether the claim was premature prior to the Claimant obtaining a GRC. Following correspondence, it was agreed between the parties that the claim be stayed until the Claimant obtained an Interim GRC (see paragraph 59 below); and, once that were obtained, the Claimant be treated as if she had obtained a Full GRC. The hearing date was consequently fixed for 11 December 2014. In the event, the Interim GRC was issued on 29 September 2014.

  15. I will deal with the details of the grounds of challenge in due course; but, briefly, the Claimant contends that the requirement to show her as ``father'' on the birth certificate of each of her children is a breach of the right of her and her children to respect for private life under article 8 of the European Convention on Human Rights (``the ECHR''), and discrimination on the basis of her transgender characteristic under article 14 read with article 8. The Claimant also sought to amend AK's birth certificate to name her (the Claimant) as JK rather than her previous (male) name of CK. In paragraph 21 of her first statement, the Claimant supported her claim with the following evidence:

    ``I am... of course very concerned by the embarrassment and distress that will be caused by the disclosure of my transgender status through the production of the birth certificate. I have explained that I intend to apply for a [GRC] and once I obtain one I will be recognised as legally female for all legal purposes. In those circumstances to have my previous gender revealed will be a very serious invasion of my privacy and will cause me great embarrassment and distress...''.

    Similarly, in her application for anonymity in this claim, it was said that ``disclosure of these matters would cause harm and distress to the Claimant and her family, and would defeat the purpose of this litigation which is to keep these matters private''.

  16. The Official Solicitor on behalf of AK and PK supported the claim, on the basis that it would be in the children's best interests if their birth certificates did not reveal that the Claimant was transgender.

  17. I heard the substantive application on 11 December 2014, and reserved judgment. However, shortly after the hearing, it came to the attention of the Treasury Solicitor acting on behalf of the Registrar General that the Claimant had, according to a letter sent by the Treasury Solicitor to the Claimant's solicitors dated 19 December 2014, ``freely and publicly'' disclosed all of the information that she seeks to protect in this claim in the form of her public Twitter and Facebook accounts, and the fact that she had been listed by a national newspaper as a transgender activist. Each of these broadcast the fact that the Claimant is transsexual and has children, her Twitter page saying (for example) that...

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