Gender Recognition Act 2004

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Gender Recognition Act 2004
Long titleAn Act to make provision for and in connection with change of gender.
Citation2004 c. 7
Territorial extentEngland and Wales; Scotland; Northern Ireland
Dates
Royal assent1 July 2004
Commencement4 April 2005
Status: Amended
Text of statute as originally enacted
Revised text of statute as amended
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The Gender Recognition Act 2004[1] is an Act of the Parliament of the United Kingdom that allows people who have gender dysphoria to change their legal gender. It came into effect on 4 April 2005.

Operation of the law[edit]

The Gender Recognition Act 2004 enables transsexual people to apply to receive a Gender Recognition Certificate (GRC). A Gender Recognition Certificate is the document issued that shows that a person has satisfied the criteria for legal recognition in the acquired gender. The Act gives people with gender dysphoria legal recognition as members of the sex appropriate to their gender identity allowing them to acquire a Gender Recognition Certificate. People whose birth was registered in the United Kingdom or abroad with the British authorities are able to obtain a birth certificate showing their recognised legal sex.[2] People granted a full GRC are from the date of issue, considered in the eyes of the law to be of their 'acquired gender' in most situations. Two main exceptions to trans people's legal recognition are that the descent of peerages will remain unchanged (important only for primogeniture inheritance) and a right of conscience for Church of England clergy (who are normally obliged to marry any two eligible people by law). Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'; courts are allowed to disclose an individual's trans status; employers are allowed to exclude trans people as a 'genuine occupational requirement'; and organisations are allowed to exclude trans people from single sex or separate sex services as 'a proportionate means of achieving a legitimate aim'. The example given in the Act is a group counselling session provided for female victims of sexual assault.[3][4]

The Gender Recognition Act 2004 aimed to safeguard the privacy of transsexual people by defining information in relation to the gender recognition process as protected information. Anyone who acquires that information in an official capacity may be breaking the law if they disclosed it without the subject's consent. However, in the first seven years of operation, birth certificates drawn from the Gender Recognition Register were immediately distinguishable from a natal birth certificate, since they had only nine columns of information, omitting the item 'Signature, description and residence of informant' that appears on birth certificates. These Gender Recognition Certificates also replaced the rubric 'Certified to be a true copy of an entry in the certified copy of a Register of Births in the District above mentioned', which appears on birth certificates, with the rubric 'Certified to be a true copy of a record in the custody of the Registrar General'. These issues were corrected by the Gender Recognition Register (Amendment) Regulations 2011.

A Gender Recognition Panel, including medical and legal experts considers evidence submitted to it to assess whether the criteria for issuing a Gender Recognition Certificate have been met.[5] The evidence must show a documented mental health diagnosis of gender dysphoria. If the person involved is in a legally recognised marriage, they require spousal consent for the certificate to be issued, after which a new marriage certificate can be issued;[6] if the spouse does not consent, the person will be issued an Interim Gender Recognition Certificate,[7] which for a limited period can then be used as grounds for annulment of the marriage, but otherwise has no status.[6] A person currently in a civil partnership must dissolve it and/or marry, since UK law currently only recognises same sex civil partnerships.[6]

Background[edit]

The Act was drafted in response to court rulings from the European Court of Human Rights.

The previous precedent dated back to 1970, when Arthur Cameron Corbett, 3rd Baron Rowallan had his marriage annulled on the basis that his wife, April Ashley, being transsexual, was legally male. This argument was accepted by the judge, and the legal test for sex in the UK had been since been based on the judgement in Corbett v Corbett; it had even led to the curiosity of a legal marriage between two lesbians since one had been born male.

The European Court of Human Rights ruled on 11 July 2002, in Goodwin & I v United Kingdom [2002] 2 FCR 577, that a trans person's inability to change the sex on their birth certificate was a breach of their rights under Article 8 and Article 12 of the European Convention on Human Rights. Following this judgement, the UK Government had to introduce new legislation to comply.

Legislative progress[edit]

The bill was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10 February 2004, with 155 votes in favour and 57 against. The House of Commons passed it on 25 May. It received Royal Assent on 1 July 2004.

The bill faced criticism in the House of Lords, including a wrecking amendment from Lord Tebbit (who has described sex reassignment surgery as "mutilation"), and from Baroness O'Cathain, who introduced an amendment to allow religious groups to exclude transsexual people. However, this amendment was narrowly defeated after opposition from Peter Selby, Bishop of Worcester, and Michael Scott-Joynt, Bishop of Winchester.

Support for the bill in the House of Commons was split broadly down party lines. At both the second and third readings (i.e. before and after amendments), all Labour Party, Liberal Democrat, Plaid Cymru and Scottish National Party votes were in favour of the bill; all Ulster Unionist and Democratic Unionist Party votes were against.[8][9] Conservative Party MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote.[10] 25 Conservative MPs voted in favour and 22 against the bill at its second reading, and 20 voted in favour and 39 voted against the bill at its third reading. Less than half of the Conservative Party's 166 MPs participated in either vote.[10] Among those who voted against the bill were Ann Widdecombe (who opposed it on religious grounds), Dominic Grieve, Peter Lilley and Andrew Robathan. Among Conservative MPs who supported the bill were Kenneth Clarke, Constitutional Affairs spokesman Tim Boswell, and future speaker John Bercow.[11]

Updates[edit]

In 2016, the Women and Equalities Committee published a root-and-branch review of the Gender Recognition Act, noting its deficiencies and making recommendations for its review. At the same time, it noted similar deficiencies in the Equality Act (2010) as it affected the protected characteristic of Gender reassignment.[12]

In November 2017, the Scottish government published its review of the GRA with intentions to reform it "so that it is in line with international best practice."[13] The "Ministerial Foreword" to the review acknowledges that the 2004 GRA is "out of date" and places "intrusive and onerous" requirements on the person applying for the gender change. The government recommends keeping the existing requirements for applicants to declare that "they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives" but proposes eliminating the requirement "to provide medical evidence and to have lived in their acquired gender for two years before applying."[14]

In 2017, Minister for Equalities Justine Greening considered reforms to the Gender Recognition Act to de-medicalise the process, with the principle of self-identification. One of Greening's successors, Penny Mordaunt, affirmed that the consultation on the Gender Recognition Act would come from the starting place that 'transgender women are women'.

In a June 2020 report the European Commission classified the legal procedures for gender recognition of 28 European countries into 5 categories based on the barriers to access. This placed the Gender Recognition Act 2004 in the second from bottom category with "intrusive medical requirements" that lags behind international human rights standards.[15]

In September 2020 the UK government published the results of the public consultation which showed wide support for all aspects of reform, including 64% in favour of removing the requirement for a diagnosis of Gender dysphoria and 80% in favour of removing the requirement for a medical report.[16] However the UK government decided not to change the current law, which was described as "a missed opportunity" by the Equality and Human Rights Commission.[17]

Concerns regarding marriages and civil partnerships[edit]

Concerns about the act were raised by supporters of transsexual rights, particularly regarding marriages and civil partnerships.[18][19] The act required people who are married to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate but this is to change with effect from 10 December 2014,[citation needed] from which date a gender recognition certificate may be granted while still in an existing marriage. In both England and Wales, and Scotland, such an application from a married person will require written consent from the spouse – the so-called spousal veto. However, applicants in Scotland benefit from a workaround, where it is possible for applicants in Scotland to apply to the sheriff court to have their interim GRC replaced with a full GRC, bypassing the "spousal veto". Some parliamentarians, such as Evan Harris, viewed the original requirement as inhumane and destructive of the family.[20] MP Hugh Bayley said in the commons debate "I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced".[21] Despite this opposition, the government chose to retain this requirement of the Bill. Parliamentary Under-Secretary for Constitutional Affairs, David Lammy, speaking for the Government, said ‘"it is the Government's firm view that we cannot allow a small category of same-sex marriages"[22]

Although the Civil Partnership Act 2004 allows the creation of civil partnerships between same sex couples, before 2013, a married couple that included a transgender partner could simply re-register their new status. They had to have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs. Once the annulment is declared final and the GRC issued, the couple can then make arrangements with the local registrar to have the civil partnership ceremony. The marriage is ended and a completely new arrangement brought into being which does not in all circumstances (such as wills) necessarily follow on seamlessly. This is also true for civil partnerships that included a transgender partner: the existing civil partnership needed to be dissolved and the couple could then enter into a marriage afterward. For a couple in a marriage or civil partnership where both partners are transgender, they can have their gender recognition applications considered at the same time, however they were required to dissolve their existing marriage/civil partnership and then re-register their marriage/civil partnership with their new genders.

Tamara Wilding of the Beaumont Society pressure group said that it was "not fair that people in this situation should have to annul their marriage and then enter a civil partnership. The law needs tidying up. It would be easy to put an amendment in the civil partnership law to allow people who have gone through gender-reassignment, and want that to be recognised, to have the status of their relationship continued."[23] The emotional stress caused is immeasurable as in the case of a Scottish couple.[24]

The Equality and Human Rights Commission (EHRC) appreciated the challenges to married transsexual people and their partners presented by Schedule 2 of the Act and in a recent submission to government[25] they recommend

The government amends the Gender Recognition Act to allow for the automatic conversion of a marriage into a civil partnership upon one member of the couple obtaining a gender recognition certificate.

Post-2013[edit]

These concerns were ameliorated somewhat by the passage of the Marriage (Same Sex Couples) Act 2013, since marriage is now available to both opposite-sex and same-sex couples alike. Under the current law, when a married couple includes a transgender person, the marriage may continue if the transgender person's spouse consents to the marriage continuing. This has been described, and opposed, by transgender activists as a "spousal veto" on their legal transition.[26] In 2019, the Liberal Democrats included the removal of the "spousal veto" as part of their manifesto.[27] Elizabeth Barker, Baroness Barker introduced a Private Member's Bill to amend the law in 2019.[28]

Relationship with the Equality Act 2010[edit]

The operation of the GRA interacts with sex-based discrimination as interpreted by the Equality and Human Rights Commission (EHRC):

A trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.[29]

However, irrespective of their legal sex the Equality Act 2010 protects trans people from discrimination on the basis of the protected characteristic of Gender reassignment, while also defining exceptions where discrimination can be allowed. The Equality Act allows exceptions for single-sex services and single-sex activities, but only if it can be shown that they are a proportionate means of achieving a legitimate aim. The EHRC has also stated that this is unaffected by whether or not an individual holds a GRC:

There are some exceptions permitting different treatment on the basis of gender reassignment, for example the exceptions related to single-sex services and associations. These exceptions do not hinge on whether or not an individual has a GRC.[29]

In practice some groups have suggested there is a lack of guidance about how to interpret the interaction between the Gender Recognition Act and the Equality Act. The Women's Budget Group in its submission to the UK government's consultation on reforming the GRA said:

there is widespread confusion and lack of information about the Equality Act exemptions, meaning that many service providers and commissioners do not know what the law does and does not allow. Some commissioners [i.e. of public service contracts] do not believe that single sex services are lawful at all. Many do not appear to be aware of the exemptions for gender reassignment.[30]

In its submission the EHRC restated their earlier view but suggested a reformed GRA could clarify the scope of a GRC in this regard:

While we do not consider changes to these provisions of the EA 2010 are appropriate, further consideration should be given to other ways of addressing those concerns. We recommend that the UK Government considers including a provision in the legislation reforming the GRA to put beyond doubt that having a GRC is not a determining factor in how the exceptions relating to gender reassignment discrimination apply. We consider that clear, practical guidance and other forms of assistance to help trans people, single-sex and separate-sex service providers should accompany reform of the GRA.[31]

See also[edit]

References[edit]

  1. ^ The citation of this Act by this short title is authorised by section 29 of this Act.
  2. ^ HM Courts and Tribunals Service. "The General Guide for all Users Gender Recognition Act 2004" (PDF). assets.publishing.service.gov.uk. Retrieved 17 January 2019.
  3. ^ "Gender Recognition Certificates (T455)". GOV.UK.
  4. ^ Participation, Expert. "Gender Recognition Act 2004". www.legislation.gov.uk.
  5. ^ Example of a Gender Recognition Certificate Archived 6 January 2009 at the Wayback Machine
  6. ^ a b c Greene, Hannah; Phillips, Nicole (29 May 2018). "The legal process for gender recognition". FamilyLaw. LexisNexis. Retrieved 31 May 2018.
  7. ^ Example of an Interim Gender Recognition Certificate Archived 6 January 2009 at the Wayback Machine
  8. ^ "Gender Recognition Bill: House of Commons Second Reading". The Public Whip. My Society. Archived from the original on 3 February 2010. Retrieved 2 February 2010.
  9. ^ "Gender Recognition Bill". The Public Whip. My Society. 30 April 2005. Archived from the original on 3 February 2010. Retrieved 3 February 2010.
  10. ^ a b Cowley, Philip; Mark Stuart (19 November 2004). "Mapping Conservative Divisions Under Michael Howard" (PDF). Revolts.co.uk. Archived from the original (PDF) on 3 February 2010. Retrieved 3 February 2010.
  11. ^ "Gender Recognition Bill: House of Commons Second Reading". Press For Change. Archived from the original on 2 February 2010. Retrieved 2 February 2010.
  12. ^ Women and Equalities Committee (2016). Transgender Equality: First Report of Session 2015–2016. House of Commons.
  13. ^ "Review of the Gender Recognition Act 2004 (9 Nov 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
  14. ^ "Ministerial Foreword to the Review of the Gender Recognition Act 2004 (4 November 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
  15. ^ "Legal gender recognition in the EU: the journeys of trans people towards full equality". European Commission - European Commission. Retrieved 9 October 2020.
  16. ^ "Analysis of the responses to the Gender Recognition Act (2004) consultation". GOV.UK. Retrieved 9 October 2020.
  17. ^ "EHRC statement on Gender Recognition Act". Politics Home. 22 September 2020. Retrieved 9 October 2020.
  18. ^ Till Political Convenience Do Us Part; Christine Burns [1]
  19. ^ Tatchell, Peter (19 July 2013). "Why our new same-sex marriage is not yet equal marriage". New Statesman. Retrieved 15 June 2020.
  20. ^ See the Honourable Dr. Harris, House of Commons Standing Committee A, 9 March 2004, Col 60. – https://publications.parliament.uk/pa/cm200304/cmstand/a/st040309/pm/40309s09.htm
  21. ^ The Honourable Hugh Bayley, House of Commons 2nd Reading 23 February 2004, Col. 60; the Honourable Andrew Selous, House of Commons 2nd Reading, 23 February 2004, Col. 64
  22. ^ The Honourable David Lammy, House of Commons Standing Committee A, 9 March 2004, Col. 69. It was suggested in the debates that the number of transgender people who have undertaken gender reassignment and who are currently living in a marriage was no more than 200.(the Honourable Mr. Oaten, House of Commons 2nd Reading 23 February 2004, Col. 69)
  23. ^ "Transsexual husband annuls marriage and enters into civil partnership". Evening Standard. 1 May 2008. Retrieved 15 June 2020.
  24. ^ Fracassini, Camillo (30 October 2005). "Sex-change couple seek marriage recognition". Times Online. London. Retrieved 7 September 2008.
  25. ^ Submission on the United Kingdom's sixth periodic report under the International Covenant on Civil and Political Rights Archived 2 October 2008 at the Wayback Machine
  26. ^ Belcher, Helen (4 April 2014). "We won't have truly equal marriage until we get rid of the spousal veto". New Statesman. Retrieved 15 June 2020.
  27. ^ Rea, Ailbhe (14 September 2019). "Liberal Democrats decide to remove the controversial trans 'spousal veto'". New Statesman. Retrieved 15 June 2020.
  28. ^ Barker, Liz (25 February 2020). "It's time to abolish the 'spousal veto' over gender recognition for married trans people". Politics Home. Retrieved 15 June 2020.
  29. ^ a b "Our statement on sex and gender reassignment: legal protections and language". Equality and Human Rights Commission. Retrieved 17 January 2019.
  30. ^ Womens Budget Group. "Consultation on Reform of the Gender Recognition Act Women's Budget Group response to the Government Equalities Office" (PDF). wbg.org.uk. Retrieved 17 January 2019.
  31. ^ Equality and Human Rights Commission. "Response of the consultation: Reform of the Gender Recognition Act" (PDF). www.equalityhumanrights.com. Retrieved 17 January 2019.

External links[edit]