United Kingdom Gender Recognition Act
Under the Gender Recognition Act, trans people who experience severe gender variance, and have medical treatment for the condition, may apply to the Gender Recognition Panel(GRP) for a Gender Recognition Certificate (GRC). The GRC then entitles them to recognition of the gender stated on that certificate “for all purposes”.
Where the person's birth was originally registered in the UK, the GRC may be used to obtain a new birth certificate. Those seeking a change of gender status must provide the GRP with evidence of a diagnosis of persistent gender dysphoria, and must convince it of their intention to live in the new role for the rest of their lives. This is a paper exercise and does not require the applicant to appear in person. Details of medical treatment and relevant dates are required. Genital surgery is not a requirement, although where it has taken place, applicants must supply details.
More than 2400 certificates have been issued thus far and the number is rising steadily.
The distinctions between those who qualify for GRCs and those who do not, are not necessarily medical. Trans individuals who are legally married, and do not wish to dissolve that marriage, are not permitted to have a GRC. An Interim Gender Recognition Certificate(IGRC) of 6 months duration may be obtained, but it confers no legal rights and serves only as a way of dissolving a marriage recorded in the United Kingdom, whereupon it is converted immediately to a full GRC. If the IGRC is not used within six months of its issue it expires worthless. There are now some slight moves to change this (see here for the Equality and Human Rights Commission position on this matter).
Section 22 of the Act provides that it is an offence for person who has acquired protected information in an official capacity to disclose the information to any other person. “Protected information” is defined in section 22(2) as information relating to a person who has applied for a gender recognition certificate under the Act, and which concerns that application (or a subsequent application by them), or their gender prior to being granted a full GRC. Section 22(3) defines where a person acquires protected information “in an official capacity”.
Section 22 of the Act is designed to protect the privacy rights of transsexual people under Article 8 of the European Convention on Human Rights by criminalising the disclosure of information relating to their gender history by a person who acquired that information in an official capacity. Section 22 sets out a series of exceptions, where disclosure is considered to be justified. These are further expanded and clarified by Statutory Instrument 2005 No.635. Solicitors are also bound to protect the information of any transgender people holding a GRC that they deal with whether or not they are clients.
The GRC gives trans people the right to marry someone of the opposite sex, and to have a civil partnership with someone of the same sex (Civil Partnership Act, 2004). The act allows the creation of civil partnerships between same sex couples, but a married couple that includes a transgender 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 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). Also be aware that older people are at grave risk of losing Category B pension rights unless they plan very carefully.
The GRA, introduced in the wake of the Goodwin case in Europe, was decided on Articles 8 and 12, European Convention on Human Rights; Article 14 was disregarded as the UK was already in breach of the other Articles. The issue of marriage under the GRA, which was not pertinent to Ms. Goodwin since she was already divorced, was more recently tested in Parry v UK (2006). The UK was found to be within its margin of appreciation.
The Parry case was argued on the basis of Articles 8, 9 and 12. In finding against Wena and Anita Parry, the court in Strasbourg commented on (a) the small number of people affected, and (b) the alternative of contracting a Civil Partnership “thereby enabling them to enjoy the same financial and legal benefits associated with marriage”.
Regarding (a) above, of course, the whole point of protecting minorities against discrimination is because they are a small number of people. This shouldn't make any difference to their ability to achieve justice and equality before the law. However, as it happens, the original figures were a significant underestimate and the number of people in this situation continues to rise.
The second point (b) is incorrect. The benefits—financial and legal—are not the same as marriage, but the court took the position that they are close enough. It is far from clear that the government was strictly honest about this, conveniently forgetting such inequities as the pension substitution arrangements.
So the harsh truth is that it is regarded as ‘proportionate’ to force trans people and their spouses to end marriages that pre-date the GRA, one way or another, if they are to obtain a Gender Recognition Certificate (GRC) allowing them equal legal status with other citizens.
GIRES disagrees that the present government position is reasonable or proportionate, because:
- remaining married deprives the trans spouse of the opportunity to obtain a GRC and the civil rights and protections that it affords;
- annulling the marriage has a range of negative impacts including those that affect the human rights, emotional and financial wellbeing of other family members, who are affected ‘indirectly’ and by ‘association’ (see new Equality Bill), e.g:
- annulment destabilises the family unit, causing immense stress to spouses who have no legal right to have input into the process. The destabilising effect is particularly felt where young children are involved;
- there are immediate financial implications that may affect tax, shared property and small businesses, inheritance and pension arrangements;
- the remedy of civil partnership is not an acceptable solution to all couples:
- it does not reflect the nature of trans/non-trans relationships and consequently is uncomfortable for one or both partners;
- it cannot necessarily be achieved in a short time-frame, during which hiatus both partners, but especially the non-trans partner and children, may be financially vulnerable;
- the financial consequences cannot necessarily be restored to the status quo ante (see for instance pension substitution arrangements-;
- considerable legal costs may be involved; and
Gordon Brown recently denounced in public forum the vote in California to overturn gay marriage, and expressed his indignation that gay couples, who had legitimately married, may now have their marriages annulled. We must hope he recognises that it must be even more unjust to oblige trans people to do the same.
The trauma that accompanies the requirement to annul a marriage (or dissolve a civil partnership) before a GRC can be issued has been recognised by the Equality and Human Rights Commission(EHRC). Some limited discussion of this and their initial recommendations to change the law may be found here. A further statement from the EHRC on the 8th January 2009 emphasizes that they understand that the Act has serious problems. Unfortunately, as things stand the EHRC are disinclined to take any positive action in the near future to improve matters. If you would like to share you views on this issue with us
Gender Recognition Certificates are issued by the Gender Recognition Panel part of the Tribunal Service.
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