A transgender person is described as someone “whose gender identities and/or gender expressions are not what is typically expected for the sex to which they were assigned at birth“[1].
The Equality Act 2010 officially states that “gender reassignment” is a protected characteristic: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”[2]
Criteria for obtaining a Gender Recognition Certificate
The Gender Recognition Act 2004 (‘GRA 2004’) allows an individual over the age of 18 to apply to the Gender Recognition Panel for a ‘gender recognition certificate’ (‘GRC’). This certificate legally recognises transgender individuals as their acquired gender and enables them to record a change of their gender on official documents (s.1(1) GRA 2004).
To do so, an applicant must satisfy set criteria provided by section 2 of the GRA 2004. The gender recognition panel must (note the use of the mandatory term) grant an application for a certificate if it is satisfied that the applicant (i) has or has had gender dysphoria, (ii) has lived in the acquired gender throughout for a period of two years, (iii) intends to live in the acquired gender until death, and (iv) complies with the requirements imposed by and under section 3.
Sections 3(1) and 3(2) require the application to include two medical reports, one of which must be made by a registered medical practitioner or psychologist in the field of gender dysphoria and which must include details of gender dysphoria. Section 3(3) provides that section 3(1) is not complied with 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’. (Emphasis added).
Registration of Marriage and Civil Partnerships
The Gender Recognition (Marriage and Civil Partnership) Regulations 2015 provide for the registration of marriage and civil partnerships in which one or both parties has obtained a full GRC under the GRA 2004.
Gender Acquisition and Parental Responsibility
Parental status is not affected by acquiring a gender (s.12, GRA 2004). For example, a transgender man who gives birth to a child will be registered as the child’s mother on the birth certificate.
The court has further confirmed this will not violate rights under the European Convention on Human Rights, R. (on the application of McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559.
Alteration of a child’s name by deed poll
Individuals over the age of 16 may change their name by making an ‘unenrolled’ deed poll. To personally apply for an ‘enrolled’ deed poll the individual needs to be over 18. To apply to change a child’s name under the age of 18 the applicant needs either i) the agreement of everyone with parental responsibility or ii) a court order.
In the matter of W (Children)(Name Changes Disclosing Gender Reassignment and Other Matters) [2020] EWHC 279, the High Court provided guidance on the process of changing a child’s name by deed poll following, for example, gender reassignment.
Under the Enrolment of Deeds (Change of Name) Regulations 1994, details of an enrolled name change must be published in the London Gazette, with the old and new full names. These details are subsequently placed in the National Archive. Enrolling a name change deed makes the name change public, and, consequently, would disclose a gender change. As publishing a child’s old and new names is considered to be a disproportionate interference with their rights under Article 8 of the European Convention on Human Rights (ECHR) and section 22 of the Gender Recognition Act 2004, consideration should be given as to whether the public deed poll process is in the child’s best interests. Private routes to changing a name are via non-enrolled deed or statutory declaration.
In interpreting the 1994 Regulations in line with ECHR, the court determined that:
- Only the child’s surname should be published;
- The court file should be marked private and only inspected with the court’s permission; and
- The deed should be retained in court and not released to the National Archive until the relevant authorities (including the Master of the Rolls) have considered the protocol regarding access and storage.
The English/Scottish legal divide
In March 2022, the Gender Recognition Reform (Scotland) Bill[3] was formally introduced in the Scottish Parliament in order to reform the Gender Recognition Act 2004. This bill proposes the simplification of the process of applying for a Gender Recognition Certificate by lessening the burden for transgender individuals to change their legally recognised gender. Under the changes, applicants could apply from the age of 16, would no longer need to establish that they had lived for two years in their acquired gender, and no longer need to obtain a diagnosis of gender dysphoria . Instead, they would be required to swear under oath that they intend to remain permanently in their acquired gender. In addition, applications would be handled by the Registrar General for Scotland, instead of a UK-wide gender recognition panel.
The UK Government ruled out implementing similar changes in England and Wales and has stated that unless the Scottish legislation required a medical diagnosis of gender dysphoria, Scotland would be added to the list of countries that the UK would not recognise as having a rigorous process for changing gender. This would result in individuals issued with a Scottish GRC having to apply for UK certificate in order for it to be recognised in England and Wales.
In December 2022 this bill was passed by the Scottish Parliament. In response, on 9 January 2023, Equalities Minister Kemi Badenoch, stated that gender recognition certificates, and associated government documents granted to transgender people in Scotland, would no longer be recognised in England and Wales.
On 16 January 2023, the UK Government invoked Section 35 of the Scotland Act and blocked the new law from being submitted for Royal Assent. First Minister Nicola Sturgeon said she would “vigorously defend this legislation” in court, though it remains to be seen what position her successor will take.
As can be seen from the brief summary above, the law relating to transgender rights is evolving rapidly. Legal professionals would do well to keep up-to-date on the changing landscape and look out for future amendments.
[1] World Professional Association for Transgender Health, Standards of Care Version 8
[2] Equality Act 2010, Section 7(1)
[3] https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill
