Gender Recognition Act 2004

Gender Recognition Act 2004

The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows transsexual people to change their legal gender. It came into effect on April 4, 2005.

Operation of the law

The Act gives transsexual people legal recognition as members of the sex appropriate to their gender (male or female) allowing them to acquire a new birth certificate, affording them full recognition of their acquired sex in law for all purposes, including marriage. The two main exceptions are a right of conscience for Church of England clergy (who are normally obliged to marry any two eligible people by law), and that the descent of peerages will remain unchanged. Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'.

People present evidence to a Gender Recognition Panel, which considers their case and issues a Gender Recognition Certificate [1]. If the person involved is in a legally-recognised marriage they will be issued an 'Interim Gender Recognition Certificate'[2], which can then be used as grounds for annulment of the marriage, but otherwise has no status. After annulment, a full Certificate will be issued.

The Act requires applicants to have transitioned two years before a certificate is issued. It makes no requirement for sex reassignment surgery to have taken place, although such surgery will be accepted as part of the supporting evidence for a case where it has taken place. There was a six month period from 4 April 2005 until 3 October 2005, where only people who transitioned six or more years previous could apply. Additionally, for two years following implementation of the Act, those who transitioned six years or more previous to application for a gender recognition certificate were required to supply a lesser level of evidence, as such people were likely to have problems in obtaining some of the documentary evidence that would be required of those who had transitioned later. There is also a mechanism whereby those who have obtained legal recognition in recognised overseas jurisdictions may obtain recognition under the Gender Recognition Act with much reduced evidence requirements; such applicants are not required to have transitioned two years before nor to be resident overseas. Successful applicants are entered onto a Gender Recognition Register, held by the registrar general, similar in operation to the Adoptions Register for those who have been adopted.

A Birth Certificate drawn from the Gender Recognition Register is indistinguishable from any other birth certificate, and will indicate the new legal sex and name. It can be used wherever a birth certificate is used, such as for issue of a passport. The birth certificate showing the previous legal gender continues to exist, and will carry no indication that there is an associated Gender Recognition Certificate or alternative birth certificate. Certain authorised agencies, with court permission, may have access to the Gender Recognition Register showing the links between these certificates, but the link will be invisible to the general public. This is the same way that birth certificates drawn from the Adoption Register work.

Legislative progress

The Act was drafted in response to court rulings from the European Court of Human Rights (see Christine Goodwin and I -v- United Kingdom If citation below doesn't work, Try [2002] 2 FCR 577 .

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 a transsexual woman, was legally male. This argument was accepted by the judge, and the legal test for gender in the UK had been based on this judgement ever since; 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 Christine Goodwin v The United Kingdom, Case No 28957/1995, that "the UK Government had discriminated based on the following: Violation of Articles 8 and 12 of the European Convention on Human Rights" following this the UK Government had to introduce new legislation to comply.

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

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

In the first division on the Bill in the House of Commons, the vote was split broadly down party lines. All Labour Party, Liberal Democrat, Plaid Cymru and Scottish National Party votes were for, all Ulster Unionist, Democratic Unionist Party votes were against. The Conservative Party allowed a free vote, and the opposition spokesman Tim Boswell welcomed the Bill — however the vote was split with Conservative MPs like Ann Widdecombe and Andrew Selous opposing the Bill on grounds of religious principle.

Some concerns were also raised about the Bill by supporters of transsexual rights. The requirement to divorce before recognition was particularly criticised, as forcing people to choose between their marriage and their gender. At the time of the debate this provision caused considerable consternation in both Houses; it was viewed as inhumane and as destructive of the family[3] As one parliamentarian put it at the time: "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"[4]. Nevertheless, despite this opposition it was retained for the explicit purpose of insulating marriage from homosexual people. In the words of the then Parliamentary Under-Secretary for Constitutional Affairs, David Lammy, ‘"it is the Government's firm view that we cannot allow a small category of same-sex marriages"[5]. Sadly the assumption that the number of married gender variant people was less than 200 was very wide of the mark with 102 Interim Gender Recognition Certificates having been issued by the end of 2008 [6] and increasing steadily each month[7] with many more transitioned people[8] unable to obtain protection under the law because they do not wish to destroy their marriage.

Although the Civil Partnership Act 2004 allows the creation of civil partnerships between same sex couples, a married couple that includes a transgendered partner cannot simply re-register their new status. They must first have their marriage annulled, gain legal recognition of the new gender and then register for a civil partnership. Whilst the drafters of the legislation may have expected this to a be a simple paper exercise, the courts take the view this is like any divorce with the associated paperwork and costs. Once the annulment is declared final and the GRC issued the couple then have to make arrangements with the local registrar to have the civil partnership ceremony; they have four weeks grace. There are also a number of legal traps awaiting the unwary as 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 (or even contemporaneously).

Tamara Wilding of the Beaumont Society pressure group stated 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." As discussed above parliament has already chosen not to do this, a legal viewpoint supported by others, such as barrister Karen Brody, who have argued that a change in the law isn't necessary.[9] From a legal perspective this may true as most of the benefits of marriage are available to the couple under a Civil Partnership. However, the emotional stress caused is immeasurable as in the case of a Scottish couple[10].

The Equality and Human Rights Commission (EHRC) appreciates the challenges to married transsexual people and their partners presented by Schedule 2 of the Act and in a recent submission to government[11] 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”.