The Gender Recognition Act

The ability of a person to live as their desired sex, regardless of surgery, is a right now conferred by the Gender Recognition Act 2004. Although a feat for transgendered people, the passing of the Act however, was not met without criticism. Lord Tebbit of the House of Lords was a firm opponent of the act, branding sex change operations as a ‘practice of sexual mutilation’ [1] , whilst issuing a wrecking amendment in the House of Lords. Despite widespread objection, the Act was passed allowing full legal recognition of a transperson’s new gender for all purposes, ranging from marriage to the issuance of a new birth certificate. [2] In order to understand the full impact such an Act has had and will continue to have on gender equality, it is first necessary to understand the evolving social attitudes regarding transexuals before Act came into existence.

Up until the 1970’s, transgendered people in the United Kingdom were able to marry people of the opposite sex with the unofficial correcting of birth certificates. Although not entirely legal, the fact a person could show with a birth certificate the sex they claimed to be allowed them to enter into the union of marriage. Despite this, as the foundations of such unions were unstable and not enforced by law, it was only a matter of time before someone challenged the legality of these marriages.

The English case of Corbett V Corbett [3] set the legal precedent regarding the status of transexuals in United Kingdom in the years prior to the Gender Recognition Act. The plaintiff, Mr Corbett, sought to end his marriage to Mrs Corbett at a time when mutual consent was no grounds to annul a marriage. In order to succeed in annulment, thereby avoiding inheritance issues, Mr Corbett challenged the legality of the marriage on the basis that Mrs Corbett had been born a man. Through a number of tests, Mrs Corbett was found to have never been female and therefore could never have entered a marriage with Mr Corbett, in turn voiding their marriage.

The lasting effect of the Corbett case, lying with the judgement of Justice Ormrod, was that trans people could never change sex, and that even after full gender reassignment, trans people remained legally in their birth gender:

It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth. [4] 

The unquestionable rigidity of such a judgement is hard to comprehend. The roll of law has never been to surrender to changing norms and exercises, but to find a way to work in harmony with such. What is surprising about the outcome in Corbett is the complete U-turn taken by the court in relation to modern times. One would think that a practice performed many years before a case presents itself would afford as equal regard as the facts of a case itself. The fact many transgendered people had had their birth certificates altered, albeit unofficially, to reflect the gender of which they considered themselves seemed no consideration for the court in Corbett v Corbett. By failing to give weight to the practice of many transexuals in achieving their sex, and by effectively outlawing such a means of self-fulfilment, the court undoubtably took a step back in the fight for equal rights of transgendered people.

The outcome of Corbett owes much to the social attitudes of the day regarding transgendered and homosexual individuals. This is evident in the lack of legal recognition afforded to such people at the time, but also in the judgement of Justice Ormrod in Corbett. His analysis of Mr Corbett’s sexual practice and desires, as well as Mrs Corbett’s pre-operative sexual practice appear overwhelmingly discriminatory against the two. [5] In explaining Mr Corbetts sexual behaviour, Justice Ormrod noted:

As time went on he became more and more involved in the society of sexual deviants, and interested in sexual deviations of all kinds. [6] 

The use of the word ‘deviant’ is clear indication of the underlying homophobic undertone in the Corbett judgement. The meaning of ‘deviant’ in this context is not only suggestive of Mr Corbetts participation in something out-with the social norm, but also his involvement in something particularly disgusting and morally unacceptable. To allow this sort of word choice, or blatant disapproval in the judgement was reflective of what was permissible when discussing both people of homosexual and transexual tendencies at the time. As it was acceptable in court to describe these sexual habits as ‘deviant’, it is not hard to see why the act of unofficially altering birth certificates ceased to continue after the judgement in this case.

Despite the obvious hostility towards transsexualism at the time of Corbett, it is clear society has changed since then. The problem with this argument however, is that the way in which society evolves can sometimes blur the turning points from what was once considered wrong to what is now considered right. Regardless of being able to pinpoint exactly the point at which certain anomalies are now considered acceptable, the importance lies with these changing attitudes affording contemplation under law:

Social developments are scarcely capable of proof but judges must be sensitive to these developments and must reflect them in their opinions...if the law is to meet the needs of society. [7] 

It stands to reason, therefore, that although one cannot calculate the point in which a transgendered person should have been afforded legal recognition as their desired sex, be this ten years before the Gender Act or on the day of its enactment, the fact such an Act was introduced is proof alone of societal change.

In this respect, the impact of the Act on gender equality is shown by its mere existence, seen as a force charged with new attitudes, there to give rights to those who need them. As it is now clear where the law stood prior to 2004 regarding the equality of transgendered people, it is now worth considering what led to the creation of the Gender Act.

As discussed already, a change in law is arguably a reflection of changing attitudes and norms in society [8] . Although many laws exist that some clearly disagree with, such as taxation, no law can come into existence unless it is truly in keeping with the beliefs and standards of the people it governs. Although at times changing attitudes do occur on a scale big enough to shape law, it is sometimes left up to case law to draw attention to unfair and outdated legislation. When this happens, public opinion helps to determine whether such laws are in need of review.

Since the time of Corbett, a growing number of cases held before the European Court of Human Rights have challenged the legal recognition of gender for transexuals. Cases such as Rees v United Kingdom [9] and Cossey v United Kingdom [10] heightened awareness of the difficulty transexuals faced in trying to have their perceived gender reflected on official documents, particularly birth certificates. Although neither case was successful in achieving the desired outcome, they undoubtably created an atmosphere that future cases could make use of.

The case of Goodwin v The United Kingdom [11] was perhaps the turning point for transexuals in the United Kingdom. The applicant, Ms Christine Goodwin, who was herself a post-operative male to female transsexual, had experienced sexual harassment at work during and following her gender re-assignment surgery. After a failed attempt to pursue a case of sexual harassment in the Industrial Tribunal based on her legal gender being that of a man, Ms Goodwin was dismissed from her work on health reasons, although she maintains that really it was on account of her being transgendered.

Upon application to the ECHR, Ms Goodwin argued that as she was made to keep her previous National Insurance number future employers were able to discover her past, resulting in future cases of embarrassment and humiliation at work. Relying on Articles 8, 12, 13 and 14 of the European Convention on Human Rights, Ms Goodwin complained about her treatment in relation to employment, social security and pensions and her inability to marry.

Of the four articles, the ECHR found a violation of Article 8, the right to respect for private and family life, and Article 12, the right to marry and to establish a family. The ruling here did not automatically override UK law, but as Lord Nicholls of Birkenhead observed in Bellinger v Bellinger:

In its most recent decision the court has taken the view that the sands of time have run out. The United Kingdom's margin of appreciation no longer extends to declining to give legal recognition to all cases of gender reassignment. [12] 

The European Court found it essential that either the UK judiciary or legislature should find a way of defining sex other than relying heavily upon chromosomal biology, [13] and that by doing so find a way to allow those in their new gender to marry. [14] 

The unquestionable impact this case has had on gender equality is shown in the UK Governments response, announced in December 2002 [15] , that they would bring forth legislation in keeping with the recommendations outlined by the European Court. It is for these reasons that Parliament enacted the Gender Recognition Act.

The impact the Act has had on gender equality is at first obvious. By allowing legal recognition of transgendered people the Act has first off relieved one of the main struggles of this small minority group. [16] The means to achieve recognition as ones desired sex now exists beyond the degree of surgery. [17] This is understandably one of the first impressions most will gather from the Act, that finally there is a way to ensure your gender of choice exists out-with self perception regardless of surgery or not.

What is unusual when assessing the impact such an Act has had, is that in relation to the equality of homosexual people, not concerned with the transgression of gender, there is a blur as to what level of equality these two groups are striving for. On one hand, homosexual people appear to seek similar levels of equality whilst retaining the obvious differences apparent between heterosexuals and homosexuals, whilst transexuals appear to seek the same level of equality enjoyed by heterosexuals whilst becoming one themselves. As such, in assessing how the Gender Act has affected the equality of transgendered people, it seems as though one could now conclude that the impact is that very little divergence of law now operates between transexual and heterosexual people. This is obviously not the case, as we shall examine later.

Perhaps one of the more obvious consequences the Act has had on gender equality is by its existence as a piece of legislation alone. In Bellinger v Bellinger, [18] the question was raised as to how far society was willing to go in order to `alleviate the plight of the small minority of people who suffer from this medical condition’ [19] . In composing the Act, it has in essence encapsulated the changing attitudes of society, highlighting how different they are since the time of Corbett. In simple terms, the Acts impact on gender equality is that through its existence it seeks to show a more developed and welcoming set of attitudes regarding transexuals throughout society.

As discussed earlier, only by contrasting previous attitudes, for example those around the time of Corbett, with the Gender Act, can we fully understand how much society has changed. In Scotland, where it is said law and society are founded on Judaeo-Christian principles, [20] the Act stands to challenge the belief that physical characteristics at birth will determine ones permanent association with either of the gender groups. In this case, the Acts affect on gender equality is shown in its ability to highlight yet question age old assumptions of sex, embedded in the foundations of society.

In 1997, the case of X, Y and Z v The United Kingdom [21] rose awareness of a transgendered persons inability to record their name on the birth certificate of a child born to their partner through Artificial Insemination by Donor. X was a post-operative female to male transexual who had lived with the female applicant Y as her male partner since 1979. Upon Y giving birth to a second child, X sought to have his name recorded under father on Z’s birth certificate. After refusal of the Registrar-General to allow so on the grounds that only a biological man could be registered as the father, the applicants argued that this was a breach of their right to respect for family life under Article 8 of the Convention Rights.

The Government argued no such breach of article 8 had occurred, as family life could not be said to incorporate the apparent lesbian couple. [22] Ultimately each European State was granted a wide margin of appreciation in determining whether people such as X should afford recognition as father, since no common european standard existed in regards to the issuing of parental rights to transexuals. As such it was agreed that the Community stick to its maintenance of the system of family law, as to tamper with this area of law may lead to future implications.

The fact now stands, that under the Gender Recognition Act, people may now afford a legal safeguard when they seek to change sex. This means that should cases such as X, Y and Z arise today, registration as mother or father in the case of AID would be permitted under the Human Fertilisation and Embryology Act 2008 provided the transgendered parent held a gender recognition certificate. The consequence of the Act, in this respect, is that it assures birth sex may not be the sole factor used to determine who has the right to be a parent. An undeniable form of equality for transexuals.

The impact the Gender Act has had on equality in this particular area of law is shown in its ability to cooperate with views on traditional matters, It is not hard to see that the remedy given to X in this case, that he continue acting as Z’s father in the `social sense’, [23] is incompatible with modern day families. Ones wish to feel connected to another is of a personal nature, not in the interests of public perception, and perhaps the only means of achieving this wish lies with a piece of paper. In this case, the strength of the Gender Act is that, with or without the help of other legislation, it will require future cases to not only consider traditional points of argument, but new ones too, resulting in fairer, more appropriate judgements.

Since Corbett, many cases have appeared before us, each concerned with the rights of transexuals. Though the facts of each case may differ, many share the same underlying theme: the right of transexuals to marry. The lasting definition of marriage was given by Lord Penzance in Hyde v Hyde and Woodmansee to be “the voluntary union for life of one man and one woman, to exclusion of all others." [24] This definition is enshrined in both the Matrimonial Causes Act 1973 [25] in England and the Marriage (Scotland) Act 1977 [26] each requiring parties to the marriage to be of opposite sex if nullity or legal impediment are to be avoided.

The impact the Gender Recognition Act has had on marriage throughout the United Kingdom is vast. With the help of the Act, transsexuals are less likely to be in ‘limbo’ [27] regarding their desired sex, as they know that by fulfilling the requirements of the Act they can obtain legal recognition as the gender of their choice. As a result, the Act has placed these transexuals within of paradigm [28] of heterosexuality, which in turn gives them the right to marry. This is an unquestionable feat considering the unthinkable notion in Corbett that a transvestite may ever be regarded as anything other than a biological fact.

Although it only seems fair to allow transsexuals to marry, such a decision is clearly not something that will have come about easily. In order to understand why such a shift in attitudes arose, it is necessary to consider the view expressed in Goodwin, namely:

Where a State has authorised the treatment and surgery alleviating the condition of a appears illogical to refuse to recognise the legal implications of the result to which the treatment leads. [29] 

This is a fair and valid consideration in understanding why the ability to marry is now available to transexuals. This country could no longer have allowed its people to have taken such drastic action in seeking peace within themselves, only to have such attempts laughed at in the face of law. It is now understood that by ignoring its people law can sometimes become out of sync with the populace it governs. The impact on gender equality, with regards to marriage, resulting from the Gender Act, is best shown in regards to how law previously treated such an issue. Quite simply, around the time of Corbett transexuals could not change sex nor marry, now they can do both these things.

The Acts impact on marriage has of course led to criticism, as well as placing a spotlight on areas of equality in the United Kingdom that are still in need of review. This point ties in with the requirement of married transgendered people to choose between either annulling their marriage in order to obtain a gender recognition certificate, or living life acting although not legally recognised as the sex of their desire.

The consequence of annulling ones marriage, aside from the emotional stress such an act entails, is that upon gender recognition the transexual may only enter into a civil partnership, something many have been unwilling to do. This calls into question the desirability of such a union for transgendered people and highlights the possible hierarchy of the two forms of union present in the UK. As gay marriage is without recognition in the UK, it seems the only possible solution for transgendered people is an automatic conversion from marriage to civil partnership upon issuance of the gender recognition certificate [30] , thereby surpassing the formalities and emotional trauma following the annulment of ones marriage.

As previously mentioned, it is likely the Gender Act has unintentionally cast doubt on both the appeal and validity of civil partnerships. The key issue with the Act is that it seeks to reproduce the gender order, and whilst this is fair, it is often thought that the real motivation for allowing legally recognised transgendered people to marry is to insulate `marriage and heterosexuality from the stain of homosexuality’. [31] Despite this, such statements are merely speculative. However, such a view is re-enforced by the Act allowing transgendered people to change gender without surgery, meaning that marriage can exist where couples appear to be in a homosexual relationship. Ultimately, the upset in this area lies with the foregoing marriage requirement of one man one woman, with some in civil partnerships feeling as though they have had to settle for second best.

The degree of law altered by the Gender Act does not, however, end here. As the Act is ultimately concerned with the non-discrimination of transgendered people, it has led to many more changes in law in an effort to bring the level of equality of transexuals in line with the rest of society. One cannot ignore the obvious success of a transgendered person being able to claim a state pension in their acquired gender, [32] nor the right of transgendered people to the same succession rights as those around them.

Despite the smaller implications of the Act, if we are to fully appreciate its impact we must compare it to the greater rights of equality in the United Kingdom, such as the recognition of ones sex, the potential to start a family and the ability to marry. Such rights have forever been regarded as the true mark of equality among people, and it is safe to say that the Gender Recognition Act, though by no means perfect, seeks to achieve these rights for transgendered people.