Gender Recognition Act 2004

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The Gender Recognition Act 2004 allows people to legally change their gender from male to female or vice versa.

Applicants are required to have lived in their new gender for two years before they can be issued with a Gender Recognition Certificate (GRC). They are not required to have undergone surgery. Once they receive the certificate they can obtain a birth certificate in their new name and gender, and are entitled to be recognised in their new gender for almost all purposes.

A person who is currently married will only receive an interim certificate, to be replaced by a full certificate when the marriage is annulled.

It came into effect on 4 April 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, and giving 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 GRC. If the person involved is in a legally-recognised marriage they will be issued an 'Interim Gender Recognition Certificate', which can then be used as grounds for annulment of the marriage, but otherwise has no status. After annulment, a full GRC will be issued.

The Act requires applicants to have transitioned two years before a certificate is issued. It doesn't required themn to have had sex reassignment surgery, although such surgery will be accepted as part of the supporting evidence for a case. For a six-month period from 4 April 2005 until 3 October 2005, only people who had transitioned six or more years previously could apply. For two years following implementation of the Act, those who transitioned six years or more before applying for a GRC were allowed to supply a lesser level of evidence, as they were likely to have problems in obtaining some of the documentary evidence that normally required. People 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 GRC 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 way that birth certificates drawn from the Adoption Register work.

Background

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 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, (also known as Goodwin and I v United Kingdom [2002] 2 FCR 577), 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 judgement, the UK Government had to introduce new legislation to comply.

Legislative Process

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 (ie before and after amendments), all Labour Party, Liberal Democrats, Plaid Cymru and Scottish National Party votes were in favour of the bill; all Ulster Unionist and Democratic Unionist Party votes were against. Conservative Party MPs were split on the issue, and the party leadership allowed its MPs a free vote. 25 Conservative MPs voted in favour and 22 against the bill at second reading, and 20 voted in favour and 39 against the bill at third reading. Less than half the Conservative Party's 166 MPs participated in either vote. 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.

Concerns regarding marriages and civil partnerships

Concerns about the act have been raised by supporters of transsexual rights, particularly regarding marriages and civil partnerships. The act requires people who are married to divorce or annul their marriage in order for them to be issued with a GRC. Some parliamentarians, such as Evan Harris, viewed this requirement as inhumane and destructive of the family. 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". 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".

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 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 have to make arrangements with the local registrar to have the civil partnership ceremony; they have four weeks grace [clarification needed]. 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 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." Some, such as barrister Karen Brody, have argued that a change in the law isn't necessary. From a legal perspective this may be 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.

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 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”.

The need to dissove marriages on transitioning was one of the arguments being put forward during 2012 in favour of Marriage equality.