Gender Recognition

Gender Recognition

Determining Sex
1. 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
2. Sex refers to the PHYSICAL attributes of gender norms whereas gender itself means MASCULINITY and FEMENINITY
Corbett v Corbett [1971] P 83
1. 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.
2. Psychologically April was a female and underwent processes to physically change her sex.
3. It was held that if you were correctly registered as male at birth, no subsequent change or development counted.
4. 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
5. 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
6. Case was PRE-GRA 2004
Goodwin v UK (2002) 35 EHRR 18
1. 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)
2. Prompted introduction of Gender Recognition Act 2004?
The Gender Recognition Act 2004
1. 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"
2. The Act is now complicated by having more or less duplicate 'mirror provisions' for Scotland and for England and Wales
3. GRA not examinable but should understand key elements e.g. the effects of a successful application upon an existing or subsequent marriage
4. Effects of the 2004 Act
  1. 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]
  2. s.12 [This] ... does not affect the status of the person as the father or mother of a child
Who can apply?
1. 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
  1. (a) living in the other gender
  2. (b) having changed gender under the law of a country or territory outside of the UK
The "Test"
1. s.2 - panel must grant either an interim or a full GRC if
  1. Applicant has gender dysphoria
  2. Has lived in new gender for at least the most recent two years
  3. Intends to remain in the new gender for life and provides evidence
2. Definition and Evidence
  1. s.25 - definition of Gender Dysphoria
  2. 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
  3. It is not necessary for someone to have undergone sexual reassignment surgery or to have been prescribed hormone treatment
Gender Recognition Certificates
1. Must be issued a full GRC if you meet the requirements of s.3
  1. AND you are not married or in a civil partnership
    1. you are not in a protected marriage (England and Wales with consent of spouse for marriage to continue) or protected CP
      1. A full GRC is registered by s.10 and that's that
2. Must be issued with an interim GRC if you meet the requirements of s.3
  1. AND you are married or in CP which is not a 'protected' marriage or CP
    1. Interim GRC allows divorce in Scotland, annulment of marriage in England and Wales, and dissolution of a CP in either jurisdiction
      1. When granting you a divorce (see s.5) the court will also turn your interim GRC into a full GRC

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