Gender Recognition

Gender Recognition

1. Determining Sex

   • Before the Gender Recognition Act 2004 one could not change ones' sex in the eyes of the law, unless a mistake had been made at the time of registration of a birth certificate
   • Sex refers to the PHYSICAL attributes of gender norms whereas gender itself means MASCULINITY and FEMENINITY

2. Corbett v Corbett [1971] P 83

   • Marriage conducted between couple, wife in the case was named April Ashley, a very successful female model. April had been born male, there was no common knowledge that a significant number of babies are born whose sex is not apparent.
   • Psychologically April was a female and underwent processes to physically change her sex.
   • It was held that if you were correctly registered as male at birth, no subsequent change or development counted.
   • Therefore, april could not marry her spouse at the time as she was a man and the marriage of same-sex couples was not lawful
   • Breach of right to marry (ECHR Art.12)? No. She could still in the eyes of the law have married a woman as she was legally male
   • Case was PRE-GRA 2004

3. Goodwin v UK (2002) 35 EHRR 18

   • The fact that you cannot change your sex legally is an unacceptable breach of Art.8 ECHR (right of respect for private and family life)
   • Prompted introduction of Gender Recognition Act 2004?

4. The Gender Recognition Act 2004

   • Provides a process whereby one can, e.g. say; "I was correctly registered as a female (on basis of genitals) but my gender (psychological and social characteristics) is now male so register the subsequent change"
   • The Act is now complicated by having more or less duplicate 'mirror provisions' for Scotland and for England and Wales
   • GRA not examinable but should understand key elements e.g. the effects of a successful application upon an existing or subsequent marriage
   • Effects of the 2004 Act
     • s.9(1) where a full GRC is registered the person's gender [i.e. sex] becomes for all purposes the acquired gender [i.e. sex]
     • s.12 [This] ... does not affect the status of the person as the father or mother of a child

5. Who can apply?

   • s.1(1) A person ... who is aged at least 18 may make an application [to the Gender Recognition Panel] for a gender recognition on the basis of
     • (a) living in the other gender
     • (b) having changed gender under the law of a country or territory outside of the UK

6. The "Test"

   • s.2 - panel must grant either an interim or a full GRC if
     • Applicant has gender dysphoria
     • Has lived in new gender for at least the most recent two years
     • Intends to remain in the new gender for life and provides evidence
   • Definition and Evidence
     • s.25 - definition of Gender Dysphoria
     • s.3 - report by two medical professionals confirming the applicant meets the tests and also a declaration whether the party is married or in a civil partnership
     • It is not necessary for someone to have undergone sexual reassignment surgery or to have been prescribed hormone treatment

7. Gender Recognition Certificates

   • Must be issued a full GRC if you meet the requirements of s.3
     • AND you are not married or in a civil partnership
       • you are not in a protected marriage (England and Wales with consent of spouse for marriage to continue) or protected CP
         • A full GRC is registered by s.10 and that's that
   • Must be issued with an interim GRC if you meet the requirements of s.3
     • AND you are married or in CP which is not a 'protected' marriage or CP
       • Interim GRC allows divorce in Scotland, annulment of marriage in England and Wales, and dissolution of a CP in either jurisdiction
         • When granting you a divorce (see s.5) the court will also turn your interim GRC into a full GRC