Beyond the Gender Recognition Act 2004: Towards a Right of Self-Determination

 

TABLE OF CONTENTS

Introduction

1.   Understanding the Gender Recognition Act 2004

1.1    The starting point for gender recognition: Corbett v. Corbett

1.2    Claims to the European Court of Human Rights through the 1980’s and 1990’s

1.3    Christine Goodwin v. the UK

1.4    The aftermath of Goodwin: UK constitutional law

1.5    The Gender Recognition Act 2004

1.6    Constructing the Gender Recognition Act

2.   Two decades since the Gender Recognition Act 2004: the case for reform

2.1    Depathologisation and the development of a new “international best practice”

2.2    Development of ECtHR case law: narrowing the margin of appreciation

2.3    The Women and Equalities Committee’s attempts at reform

2.4    Self-determination and the rights of women

2.5    Does self-determination pose a real risk for women?

3.   Comparative analysis between legal recognition in the UK and the Republic of Ireland

3.1    A shared starting point: the case of Doctor Lydia Foy

3.2    The construction of the Gender Recognition Act 2015

3.3    The Irish Gender Recognition Act 2015

3.4    How the Irish model of recognition compares to the UK

Conclusion

Bibliography

 

Introduction

   On 1 July 2004 the United Kingdom’s Parliament, enacted the Gender Recognition Act. After three decades of the law considering birth sex an immutable characteristic, this landmark piece of legislation introduced for the first time in the UK a legal framework whereby a trans[1] person may apply for legal recognition of their acquired gender identity. Having been considered one of the most progressive recognition laws, the framework contained in the Gender Recognition Act became the blueprint for recognition legislation across Europe.[2] However, at the time of the enactment UK activists and scholars sensed that the medicalised prerequisites contained in the Gender Recognition Act were limited in their progressiveness and did not offer trans people sufficient legal protection. These critiques have gained international legitimacy in the years that have passed since the enactment. Increased social acceptance and changes in the ways trans people are perceived by the medical community have led to the popularisation of self-determination as the new international “gold standard”[3] of legal gender recognition. This new practice has rendered the medical model contained in the Gender Recognition Act 2004 antiquated.

   In this dissertation I will be making a strong case in favour of reforming the Gender Recognition Act towards a depathologised model of self-determination. Chapter one will examine the origins of the Gender Recognition Act in relation to European Court of Human Rights jurisprudence and national political debate. Chapter two will move on to explore new international attitudes regarding legal recognition around depathologisation, looking at recent developments in the European Court of Human Rights. This chapter will also analyse recent attempts at reform towards self-determination, and the unexpected degree of backlash from gender critical sectors within feminism as well as the reluctancy of the UK government to embrace self-determination. Finally, chapter three will draw form recent reform in the Republic of Ireland to evidence that a depathologised model of recognition based on self-determination does not pose any dangers and could succeed in the UK.

1.   Understanding the Gender Recognition Act 2004

   A defence for reform of the Gender Recognition Act 2004 (GRA 2004) necessitates understanding the reasoning behind the model for recognition currently in place in the UK. This is of particular importance regarding the medical prerequisites for gender recognition that have been increasingly challenged in recent years. This chapter will examine the development of recognition legislation in the UK. Starting with the case of Corbett v. Corbett;[4] through the litigation in the European Court of Human Rights (ECtHR); to the national legal and political debate around the drafting of the GRA 2004.

 

1.1  The starting point for legal recognition: Corbett v. Corbett

   While it is not clear whether the issue of gender recognition had already been considered in 1967,[5] this dissertation will centre on the 1970 case of Corbett v Corbett, as it set what would be the regime for (non)recognition of gender in the UK until the enactment of the GRA 2004.[6] The case of Corbett concerned the validity of the marriage between a cisgender (non-transgender) man and a transgender woman whose transition included undergoing genital surgery as well as hormone replacement therapy. In his judgement, Judge Ormrod determined that whether the marriage was valid depended “on the true sex of the respondent”[7] and the parties’ ability to “consummate the marriage.”[8] To make such determinations Judge Ormrod defined the criteria that ought to be used when determining a person’s sex through a four-stage test. He established, in accordance with medical witnesses, that the sexual condition of an individual is to be determined through “(i) chromosomal factors, (ii) gonadal factors (such as the presence or absence of testes or ovaries), (iii) genital factors (including internal sex organs) and (iv) psychological factors.”[9]

   Despite the inclusion of psychological factors, Ormrod defined sex in a purely biological manner. Two quotes from his judgement evidence such a position. Firstly, Ormrod, once again invoking consensus among medical witnesses, stated that “the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, “cannot affect her true sex,”[10] it had been determined by her chromosomal makeup at the time of her birth. Furthermore, he specified that “having regard to the essentially heterosexual character of […] marriage, the criteria must […] be biological, for even the most extreme degree of transsexualism […] cannot reproduce […] the essential role of a woman in marriage. The law should adopt in the first place the first three criteria”[11]

   In summary, Corbett v Corbett defined sex as biologically immutable and determined at birth. Consequently, transgender people could not seek legal recognition because, regardless of whether they had medically transitioned, their sex had already been determined and could not be changed. Such a position left transgender people unprotected and without rights in areas such as employment, welfare, marriage, and parenting.[12] Trans people tried to amend this situation by claiming violations of their rights to the ECtHR.

 

1.2  Claims to the European Court of Human Rights through the 1980s and 1990s

   Because the UK was one of only four countries within the Council of Europe that still refused to recognise the acquired gender of trans people,[13] trans individuals, but more specifically post-operative transsexuals, in the UK sought to correct the vulnerable situation that Corbett v Corbett put them in by bringing claims of violation of Convention rights to the ECtHR. Such cases were instrumental in the development of a European right to gender recognition.[14] While these individuals were claiming violations of their rights on numerous fronts, including their right to marriage and family life,[15] and their right to non-discrimination,[16] it was their claims under Article 8, the right to respect for private life, which eventually led to the construction of a right to gender recognition.

   Importantly, the right to private life can entail positive obligations to take protective measures. Due to the burden that protective measures can entail, the ECtHR provides states with a wide margin of appreciation and will not interfere if national legislation strikes a fair balance between an individual’s right to private life and wider public interests.[17] This wide margin can be observed in the cases brought to the ECtHR throughout the 1980s and 1990s. The first case brought before the court against the UK is the 1987 Rees case.[18] While the ECtHR found no interference with Articles 8 and 12, “as this is an area in which the Contracting Parties enjoy a wide margin of appreciation,”[19] it noted that it was “conscious of the seriousness of the problems affecting transsexuals and the distress they suffer”[20] which showed a need for this legal area to “be kept under review having regard particularly to scientific and societal developments”.[21]  In the later cases of Cosey v UK in 1991,[22] X, Y, Z v. UK in 1997,[23] and Sheffield and Horsham v. UK in 1998,[24] the ECtHR reiterated the margin of appreciation applied in Rees and the need to keep the area under review.[25]

   The warnings to keep the legal area under reform contained in these four cases culminated in the case of Christine Goodwin v. the UK,[26] where the ECtHR put an end to the margin of appreciation.

 

1.3  Christine Goodwin v. the UK

   Finally, after following the precedent set in Rees for over a decade, in Goodwin the ECtHR decided to take a dynamic approach in accordance with the living instrument principle. While acknowledging the importance of precedent, the ECtHR looked at wider societal and legal issues to keep Convention rights “practical and effective.”[27] More specifically, the ECtHR discussed advancements in scientific and medical knowledge that widely recognised transsexualism as a medical condition; the acceptance of such a condition by the health authorities of most Contracting States, including the United Kingdom; the provision of treatment for transsexuals, including surgery, by the UK’s National Health Service; and the credibility of the assumption of the social role of the acquired gender.[28] While the ECtHR attached great importance to these factors, the court determined that they were not sufficiently convincing.[29]

   The deciding factor in Goodwin was the development of the right to personal autonomy.[30] Having been considered in previous cases,[31] personal autonomy was established as an individual right contained within Article 8 in the case of Pretty v. the United Kingdom three months before Goodwin.[32] In the case of Goodwin, the ECtHR further established that this right to personal autonomy includes the right of a person to establish details of their identity as an individual human being.[33] As previously mentioned, due to the burden imposed by positive obligations under Article 8, rights contained within this article must be balanced against wider public interests. In Goodwin, the ECtHR found that there were no substantial factors of public interest that could be weighed against the interests of Goodwin in obtaining legal recognition of her gender reassignment.[34] Consequently, the ECtHR determined that not allowing post-operative transsexual people to amend their birth certificate constituted a “serious interference”[35] with private life where “domestic law conflicts with an important aspect of personal identity.”[36]

   Therefore, the ECtHR established that the UK could no longer rely on the margin of appreciation and that the UK Government ought to implement measures to recognise the acquired gender of “post-operative transsexuals.”[37] The language used by the ECtHR here is important. Because up to this point all cases brought to the Court concerned post-operative transsexuals, and due to the state of scientific and medical knowledge at this time, the ECtHR only established an obligation to recognise the gender of transsexual people who had undergone gender re-assignment surgery. This left a wide margin of appreciation regarding the specific criteria that the States could require for legal recognition.[38]

 

1.4 The aftermath of Goodwin: UK constitutional law

   The judgement in Goodwin was particularly impactful due to the incorporation of the rights contained in the European Convention into national legislation through the enactment of the Human Rights Act (HRA) 1998. Before the HRA judges could only override precedent if a case is clearly distinguishable from a previous one. Now, there is a duty to interpret legislation in accordance with the Convention, and where a law cannot be read in accordance with Convention rights, judges can issue a declaration of incompatibility. Such a declaration of incompatibility was issued in the case of Bellinger v Bellinger.[39]

   After her marriage to a man was declared invalid for not being recognised as a woman,[40] Mrs Bellinger applied for judicial review and claimed that, in light of the HRA, and following the Goodwin decision, section 11 the Matrimonial Causes Act 1973 ought to be interpreted as including trans men and women. In this case, the House of Lords determined that, following common law precedent of Corbett, s11 could not be interpreted as including trans people because sex is immutable and determined at birth. However, they noted that such precedent was now in contravention of Convention rights, and consequently, they issued a Section 4[41] declaration of incompatibility. This once again put the focus on parliament and on the need to create primary legislation that granted trans people legal recognition of their acquired gender.[42]

 

1.5 The Gender Recognition Act 2004

   Against the backdrop of the Goodwin and Bellinger cases, the Gender Recognition Act 2004 was enacted. As it stands, the GRA 2004 sets out the following criteria that a trans person must meet to gain legal gender recognition. The applicant must be over eighteen years old;[43] they must provide two medical reports confirming that they have or have had gender dysphoria;[44] they must prove that they have lived full time in their acquired gender for two or more years;[45] they must sign a statutory declaration declaring that they intend to live in the acquired gender until death;[46] and, if married, the spouse must issue a statutory declaration of consent.[47] This information must then be submitted to the Gender Recognition Panel which will determine whether to grant a gender recognition certificate.[48] Where a certificate is granted “the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”[49] Finally, once recognition has been granted, section 19 of the GRA 2004 permits discriminating against trans women in sport if doing so will guarantee “fair competition”[50] and the “the safety of the competitors.”[51]

   These provisions amount to a continuation of the medicalised approach taken by the ECtHR in Goodwin. However, rather than granting recognition exclusively to “post-operative transsexuals,” the GRA 2004 opted for softer medical requirements, such as a diagnosis of gender dysphoria. Furthermore, the GRA 2004 weights the rights of trans people against those of women when regulating the access of trans women to sport. The reasoning behind such provisions will be examined in the following section.

 

1.6 Constructing the Gender Recognition Act

   Although a breach of convention rights was not established until Goodwin, the long history of warnings contained within the previous ECtHR cases did not go unnoticed. Having been tasked with reviewing the legal status of transgender people for the fourth time in 1998, the UK government set up an Interdepartmental Working Group in 1999 tasked with considering “the need for appropriate legal measures to address the problems experienced by transsexual people.” The Working Group reported its findings in early 2000.[52] While no legislation or action followed the report, its findings set the tone and issues that were discussed during the debates surrounding the drafting of the Gender Recognition Act when the Working Group reconvened in 2002 following Goodwin.

   The main issue considered by the Working Group concerned the prerequisites that could be put in place before granting legal recognition. Because the Working Group believed, like the ECtHR in Goodwin, that “gender identity disorder (transsexualism) is a medical condition,”[53] it was determined that the prerequisites ought to be of a medical nature, relating to the stages of “gender reassignment.”[54] The group distinguished three differentiated stages of gender reassignment, namely living in the new gender, hormonal treatment, and surgery. When considering the appropriateness of each of them, two main factors were considered. Firstly, the group seemed particularly concerned with how transgender people interact and are perceived in wider society. This is evident when the report states that “the transsexual community’s concern about discrimination has to be set against the great concern which would be felt by the general public if someone who was legally a man gave birth to a child.”[55] Moreover, the Working Group attached great importance to whether the trans person “will have clear physical attributes of the opposite gender.”[56] Secondly, the Working Group was concerned with the stability of the gender reassignment. In the report it is stated that the trans person must show a “commitment to want to live in the relevant gender in the future.”[57]

   These concerns were echoed in the parliamentary debates, which led lawmakers to initially consider imposing requirements of genital surgery.[58] It was argued that at this stage of transition the transsexual person will no longer resemble the birth gender, they will be unable to reproduce, and according to several studies done at the time, it guaranteed that the trans person would not go back on their decision.[59] However, following pressure from the trans community,[60] and after considering that not all trans people can undergo surgery,[61] sterilisation and surgical requirements were abandoned in favour of a gender dysphoria diagnosis. Because the guaranteed stability of surgery could no longer be relied on, this stability was sought in other ways.[62] Firstly, the two-year real-life test was implemented following international and national health standards. Being a requirement “applied in gender reassignment clinics as prerequisites to surgical treatment” and considering that “transsexual people who reach the surgical stage will have been carefully selected,” the two-year period was deemed sufficient to guarantee stability. Secondly, a statutory declaration of intention to remain in the acquired gender until death was put in place. Finally, a medical gender recognition panel was established, which would impose a “rigorous and high”[63] standard for granting a gender recognition certificate.

   The other important issue considered concerned how granting legal recognition to trans people would infringe on women’s rights. These concerns reflect the position of gender critical sectors within radical feminism.[64] In the Working Group report the concerns are considered in two areas, prison, and sport. Regarding prison, the report contemplates that “there may be problems in placing a male-to-female transsexual person in a female establishment, where she may not be accepted by other prisoners, many of whom may have suffered violent or sexual abuse from men.”[65] As regards to sport, the Working Group was concerned with “ensuring fairness to other competitors, in cases involving a male-to-female transsexual where […] they are likely to retain a physical advantage over other women.”[66] It is worth noting how concerns for the safety and rights of women are muted within this report. This could be because, although gender critical feminism has existed since the 1970s,[67] Trans Exclusionary Radical Feminism only became popular in the UK in the late 2000s.[68] A shift can be observed after the enactment of the Equality Act (EA) 2010. While in the debates leading up to the enactment of the GRA 2004 concerns centred around balancing the rights of trans people and the comfort of wider society, in the reform debates the balance concerns the rights of women.

   While compromises had to be made with opposing parties, the GRA 2004 was a revolutionary piece of legislation that put the UK at the vanguard of trans rights.[69] In the words of Sharon Cowan, the GRA 2004 “embodies what could be termed ground-breaking reform”.[70] Despite maintaining a medical view of trans identities, the GRA 2004 went beyond what was required of the UK in Goodwin. It does not contain, unlike most jurisdictions at the time, any requirements of medical treatment (such as hormones or surgery), or full sterilization before accessing the rights contained within it. This left the act very radical, as it does not mandate surgery or sterilisation, with 2 areas unresolved. Namely, the medicalised model of recognition based on the prevalence of transsexuality as a mental illness, and the perceived relationship between the rights of trans people and women. The following chapter will analyse how these two factors have evolved through time, and the role they play in the conversation around reform.

 

 

2. Two decades since the Gender Recognition Act 2004: the case for reform

   Since the enactment of the GRA 2004, the international position of transgender recognition has changed. Arguably, the “revolutionary nature” of the GRA 2004 has not passed the test of time.[71] This chapter will illustrate how the medical model for gender recognition, contained in the GRA 2004, has fallen behind the international standard, by looking at the development of a new “international best practice”,[72] and ECtHR jurisprudence. Additionally, this chapter will discuss recent attempts to reform the GRA 2004 in accordance with the “international best practice,” and the political opposition against such reform.

 

2.1 Depathologisation and the development of a new “international best practice.”

   As discussed in the previous chapter, the ECtHR’s decision in Goodwin followed the scientific community’s understanding that transsexualism was a recognised medical condition. This medical understanding was then incorporated into the GRA 2004 through the requirement of a gender dysphoria diagnosis, the two-year real-life test, the statutory declaration, and the medical Gender Recognition Panel. However, the pathologisation of trans identities, present in medical models, is increasingly being considered a discriminatory and medically outdated practice.[73] This can be attributed to the growing evidence of the impact that the stigma attached to mental illnesses has on trans people.[74] In other words, the pathologisation of trans identities is no longer accepted because it prevails the perception that trans people are not normal,[75] which further marginalises trans people and leads to issues of anxiety and depression within the community.[76]

   Awareness of these detrimental effects have led to changes in the way trans people are perceived in medical and legal contexts. In the medical field, the World Health Organisation has moved gender dysphoria from the “mental and behavioural disorders” section in the IDC-10 to the “conditions relating to sexual health” chapter in the ICD-11. Similarly, multiple international legal bodies have positioned themselves against medicalised systems of gender recognition.[77] Most notably, within the Council of Europe, the Commissioner for Human Rights of the Council of Europe has stated against pathologisation that it is “an obstacle to the full enjoyment of human rights by transgender people.” Furthermore, the parliamentary assembly of the Council of Europe has adopted Resolution 2048 that states that “the fact that the situation of transgender people is considered as a disease […] is disrespectful of their human dignity and an additional obstacle to social inclusion.”[78]

   The rejection of the pathologisation of trans identities has led to the development of a new model for gender recognition which has become the new “international best practice.” This practice, called self-determination, entails legally recognising the acquired gender of trans people without setting any barriers or prerequisites.[79] A trans person will simply need to declare their new gender status to gain legal recognition. In Resolution 2048, the parliamentary assembly of the Council of Europe encourages all member states, who have not already done so, to “develop quick, transparent and accessible procedures, based on self-determination.”[80] Moreover, self-determination models have been implemented by multiple jurisdictions across the world,[81] including several States within the Council of Europe, including Ireland, Denmark, Sweden, or Malta.[82]

 

2.2 Development of ECtHR case law: narrowing the margin of appreciation

   Parallel to this international development, the ECtHR has moved forward from its decision in Goodwin. More specifically, the ECtHR has Moved away from the strictly medical approach taken in Goodwin, by narrowing the margin of appreciation states enjoy in recognition prerequisites. In the two decades since Goodwin v. UK, multiple cases have been brought to the ECtHR against a variety of Member States.[83] While some simply concerned the enforcement of the Goodwin decision in a different jurisdiction, with no intention of claiming further rights,[84] others were clear attempts at eliminating certain recognition prerequisites.

   Regarding medical requirements for recognition, the instrumental case in the narrowing of the margin of appreciation is A.P., Garcon and Nicot v. France (APGN).[85] This case involved three trans women, claiming violations of their Article 8 rights. Two of the women claimed that France’s surgical requirement constituted an infringement on their right to personal autonomy because such surgeries had a high probability of sterilisation. In this instance, the ECtHR reaffirmed what it had established in Y.Y. v. Turkey.[86] That is, that the Convention guarantees the physical integrity of trans individuals,[87] that in this area States enjoy a “restricted”[88] margin of appreciation, and that mandatory infertility places trans people in an “insoluble dilemma”.[89] For these reasons, while the ECtHR acknowledged that there was not yet a European consensus on sterilisation, the fact that such requirements were increasingly being repealed across the Council of Europe was sufficient to find a violation of Article 8.

   The third woman brought a claim against the requirement of a diagnosis of a gender identity disorder, arguing “that transgenderism is not an illness and that addressing gender identities from the perspective of a psychological disorder adds to the stigmatisation of transgender persons.”[90]  In this instance the ECtHR found no violation of Article 8 rights. Two reasons were given for this. Firstly, the ECtHR argued that at the time of the judgement, there was “quasi-unanimity” on the use of medical requirements, as only four Member States did not require a diagnosis of gender dysphoria for legal recognition.[91] Secondly, the ECtHR contended that medical safeguards were appropriate because, at the time of the judgment, “transsexualism” was still featured in the “Mental and behavioural disorders” chapter of the ICD-10.[92]

   It is interesting to delve into this judgement for two reasons. Firstly, because finding an infringement on surgical requirements, previously considered not only appropriate but necessary, represents a depart from the wide margin of appreciation given to the States in Goodwin.[93] Secondly because the circumstances the ECtHR used to not find a violation of Article 8 in the requirement of a gender identity disorder diagnosis have changed since the time of the judgement. The “quasi unanimity” regarding the adequacy of diagnostic requirements has dissipated as more states within the Council of Europe have implemented self-determination. Whereas when the judgement was produced only four jurisdictions contemplated self-determination, this system has now been implemented by ten states.[94] Namely the Republic of Ireland, Denmark, Norway, Malta, Belgium, Switzerland, Sweden, Portugal, Iceland, and Greece.[95] It is perhaps more appropriate now to state that diagnostic requirements are “increasingly being repealed across the Council of Europe,” which was sufficient find a violation of Article 8 for sterilisation within the same judgement. Additionally, as highlighted in the previous section, gender dysphoria is no longer included in the “Mental and Behavioural Disorders” chapter of the ICD-11. Therefore, the medical and scientific communities can no longer be used to justify medical prerequisites.

   While in APGN the ECtHR upheld medicalised models of recognition, the aforementioned developments suggest that the wide margin of appreciation currently afforded in this area might be coming to an end. As presented in the beginning of the chapter, there is a strong indication that, as depathologisation becomes increasingly accepted in legal and scientific sectors, it is likely that the ECtHR might eventually consider the medical model of recognition contained in the GRA 2004 to be a “serious interference” with transgender people’s autonomy rights. Consequently, the UK would largely benefit from reforming it before such interferences are found. Notably, efforts have been made to reform the GRA 2004. However, new political pressures have successfully campaigned against such attempts at reform. The following sections of this chapter will engage with the ongoing political debate around reforming the GRA 2004 towards self-determination.

 

2.3 The Women and Equalities Committee’s attempts at reform

   The international trend towards self-determination has not gone unnoticed in the UK. The growing advocacy for reform led the Women and Equalities Committee to carry out a report on transgender equality in the UK in 2016.[96] Among its 35 recommendations, the Committee prompted the Government to “bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions.”[97] In response to the report, two years later in September of 2018, the Government launched a consultation on the reform of the Gender Recognition Act. The analysis of the consultation responses, which was published two years later in September 2020, shows widespread support for a move towards self-determination. Most respondents were in favour of eliminating the requirement of a gender dysphoria diagnoses (64.1%),[98] and the two-year real-life experience (78.6%).[99] Despite the overwhelming support for reform, the Government’s response in 2020 only included a reduction of the application fee and making the procedure online. The Government determined that no further reform was needed because “the balance struck in this legislation is correct.”[100]

   The failure of the Government to address key areas that were supported in the consultation, prompted the Women and Equalities Committee to launch an inquiry.[101] The aim of the inquiry was to understand why the Government had ignored those key areas, and to find out whether the reforms announced were sufficient for stakeholders. In December 2021 the Women and Equalities Committee published the report of the inquiry. In the report, the Committee welcomed the reduction of the fee and the new online route. However, they clarified that such changes were insufficient as they “contribute virtually nothing” and “appear tokenistic.”[102] Additionally, the Committee, once again, urged the Government to “bring back an action plan for reform to the Gender Recognition Act […] in those areas where there was a majority in support for it.” [103]

   The report continues by specifying what provisions within the GRA 2004 ought to be changed and why. The Committee advocates for a non-medical approach through the elimination of the gender dysphoria requirement as well as the Gender Recognition Panel. Citing the lack of clear definitions of what constitutes living in a gender, they defend eliminating the two-year real-life experience. Because it denies trans people their basic rights the report proposes removing spousal consent in favour of an annulment option. Finally, the Committee defends the maintenance of the statutory declaration and the minimum age of 18 as they are necessary safeguards to prevent fraud and high rates of regret respectively. While these changes would bring the UK up to international standards, in March 2022, the Government reiterated its 2020 position that the current legislation strikes the right balance.[104]

 

2.4 Self-determination and the rights of women

   The “balance” brought up by the Government in its responses to the 2018 consultation and 2020 inquiry is the balance of the rights of transgender people against the rights of women. A matter already considered, although not as emphasised, in the Gender Recognition Bill 2003 debates. While this was not explicitly said in the official Government’s response to the 2018 consultation, when the response was being debated in parliament, Elizabeth Truss, then minister for women and equalities, stated that “the settlement we have reached balances and upholds the rights of transgender people and of women” and “protects access to single-sex spaces.”[105] From these two statements it can be understood that the main argument presented against self-determination is that it will diminish women’s rights by overturning the single sex-exemptions contained in the Equality Act.[106] Due to the lack of guidance in this area,[107] this argument stems from an understanding that trans women who hold a gender recognition certificate cannot be discriminated against in women-only spaces.[108] Deriving from this understanding, concerns have been raised by gender critical feminists on two fronts.

   Firstly, there is concern that self-determination will lead to instances of fraud. Melanie Phillips has argued that “all that will be needed in future is for a man to say he is now a woman and vice versa for their birth certificate to be changed.”[109] Similarly Dr Nicola Williams, in her contribution to the 2020 inquiry stated that “the issue with self-identification is that it would open up the ability for any male, for whatever reason, to obtain a birth certificate to say that that person was born female.”[110] They, and others, have claimed that such liberty in accessing a new birth certificate will “be misused for the purpose of obtaining access to women-only and girl-only spaces.”[111] This includes women’s prisons, shelters, and sports.

   Secondly, concerns have been raised on the potential risk women will be at in women’s spaces (such as domestic violence shelters, and prisons) if self-declaration is implemented.[112] This argument for safety has been equally applied to cisgender men and transgender women. Respectively, Helen Lewis has defended that “self-declaration will make women shelters unsafe because sex segregation is for safety”[113] and Kathleen Stock has argued that “the problem here is male violence, there is no evidence that self-declared trans women deviate from male statistical norms in relevant ways.”[114]

 

2.5 Does self-determination pose a real risk for women?

   Although concerns around abuse do raise important issues that might require the implementation of safeguards within self-determination legislation, the extent to which gender critical arguments claim that the reform will violate women’s rights, is unconvincing. Refuting harm and fraud claims necessitates analysing the extent to which these arguments reflect the reality of the law. Four grounds will be used for this analysis, the relationship between the EA 2010 and the GRA 2004, sports and prison regulations, the experiences of women’s shelters in the UK, and the experience of international jurisdictions with self-determination.

   Firstly, the claim that the sex-exceptions contained in the EA 2010 cannot be invoked against transgender women is false. In the paper “Will gender self-declaration Undermine Women’s Rights and Lead to an Increase in Harms?”[115] Alex Sharpe engages with these claims. Sharpe argues that, while the Equality Act’s code of practice states that single-sex providers “should treat transsexual people according to the gender role in which they present,”[116] sex-based exceptions still apply where this is “a proportionate means of achieving a legitimate aim”[117] whether the trans person has a GRC or not.[118] Sharpe’s argument has since been confirmed by the Equality and Human Rights Commission (EHRC). In April 2022, the EHRC published guidance for separate and single-sex service providers, where it states that “separate or single-sex service providers can prevent, limit, or modify trans people’s access to the service. […] Limiting or modifying access to […] a trans person from the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.”[119]

      Secondly, while many of the concerns seem to be directed at misuse around sport and prison, these two areas of law are not regulated solely by the EA 2010. As far as prison is concerned, regulations have been in place since 2016 that provide that any woman prisoner, regardless of trans status, whose security profile renders her dangerous to other women inmates must be allocated to a male prison.[120] This guidance was strengthened in 2019, and it involves “a robust framework for assessing and determining the appropriate location of prisoners within the prison estate, including assessing both risks to, and from, prisoners.”[121] Furthermore, sport is regulated by both domestic and international bodies, such as United Kingdom Athletics and World Athletics or the International Olympic Committee. These bodies have offered guidance and regulations that not only allow but sometimes require the exclusion of trans women and of cis women. This will be the case where a woman, regardless of her trans status has naturally high levels of testosterone.[122] These safeguards apply to all women regardless of trans status and are not affected by any changes to the GRA 2004 or the EA 2010. Therefore, arguments on grounds of fairness and safety in sport and prison should not influence reform towards self-determination. 

   Thirdly, concerns regarding the inclusion of trans women in women’s shelters do not reflect the experience of women’s shelters in the UK. Many shelters within the UK already function in a self-declaration basis. In a recent report commissioned by Stonewall, where representatives of fifteen women’s organisations were interviewed, a participant stated that ‘we recognise trans women as women, therefore they’re included in our women only times and spaces, and that’s been our practice for years, like years and years.’[123] Additionally, this report found no evidence of issues arising from the inclusion of trans women. Stonewall attributed this to the presence of proper risk assessment and monitoring tools. As stated by Scottish women’s organisations, in a joint statement, “we’ve worked on the basis of self-declaration for some time now and in our experience, it’s never been something that’s been exploited or misused.”[124]

   Lastly, it has been consistently pointed out by scholars and activists for the trans community, that the international jurisdictions that have implemented self-determination, evidence the effectiveness of the model.[125] In a contribution to the Women and Equalities Committee inquiry Alex Sharpe maintained that there are currently 20 countries and numerous American States, Canadian Provinces and Australian States that have implemented self-determination and that so far, they “have not had significant problems.”[126]

   Therefore, it is apparent that implementing self-determination will not negatively impact women’s rights or safety. This is particularly clear in light of the guidance on separate and single-sex services recently published by the EHRC. Given the overwhelming support of self-determination from the international community, and the evidence of its benefits for transgender people, the Government ought to reconsider its position. As it stands today, the GRA 2004 disproportionally infringes upon trans people’s rights. If the aim of the legislation is to strike the right balance between women’s rights and trans people’s rights, then more liberal safeguards can be implemented. A good point of reference, should the Government decide to implement self-determination, is the recognition model contained in the Irish Gender Recognition Act 2015 (GRA 2015). The Irish model and its relevance for the English system will be the subject of the next section.

 

3. A comparative analysis between legal recognition in the UK and the Republic of Ireland.

   This chapter will comparatively analyse the evolution and current status of gender recognition legislation in the UK and Ireland. These jurisdictions have been chosen because the similarities between both legal systems make the Irish experience towards legal recognition particularly significant for the UK. Not only are these two jurisdictions similar in general aspects, such as being common law legal systems, but they historically and currently share similar birth registration rules[127] and Human Rights Legislation,[128] provide for similar sex exemptions within equality legislation,[129] and most importantly, the case of Corbett v. Corbett set the criteria against the recognition of the gender of trans individuals in both jurisdictions.[130] Because they share a legal starting point for gender recognition, and have similar legal systems, Peter Dunne has called the Irish system the “blueprint” for recognition in the UK. He argues that “the Irish system, […] can serve as a useful roadmap should parliament decide to implement the committee’s recommendations.”[131]

 

3.1 A shared starting point: The case of Doctor Lydia Foy.

   The starting point for gender recognition in Ireland is the case of Dr. Lydia Foy. In 1993, Dr. Lydia Foy, a transgender woman, applied at the An tArd Chlaraitheoir’s (the Irish Registrar General) for a birth certificate that reflected her status as a transgender woman. Her application was refused, and, in 1997, she sought to amend the refusal by bringing legal action against the An tArd Chlaraitheoir in the High Court. In her case, Dr. Foy claimed that the factor of psychology or the “brain sex”[132] should be considered an “indicator of sexual differentiation”,[133] that this indicator should be considered as “having existed at the date of the applicant’s birth,”[134] and that consequently, the original entry of the birth certificate should be considered as an “error of fact or substance,”[135] amendable by s.27 of the Births and Deaths Registration Act (Ireland) 1880. She further argued that the refusal of the Registrar General to provide her with an amended birth certificate was a breach of her constitutional rights to equality, dignity, and privacy;[136] as well as her Convention rights contained in Article 8. The judgement of her case was delivered in 2002 by Justice Liam McKechnie.

   Justice McKechnie held that the evidence on male and female brain differentiation submitted by Dr. Foy was “insufficient to establish the existence of brain differentiation as a marker of sex”[137] and that the criteria to be used when determining the sex of a person was the criteria identified by justice Ormrod in Corbett v. Corbett, namely chromosomes, gonads, and genitals.[138] Therefore, s27 could not be interpreted to allow amending the birth certificates of transgender people. He continued the judgement by determining that no constitutional rights had been breached, on the grounds that a birth certificate is a “document recording historical facts”[139] with no effects on the legal status of the individual beyond the day of birth. Finally, he considered the effect of Article 8 of the ECtHR. Because the judgement was delivered two days before the ECtHR had reached its decision in Goodwin, McKechnie determined that the Irish legal position did not violate any Convention rights.[140] However, he noted the recommendations made by the ECtHR and advised the Government to “urgently review” the legal position of transgender people in Ireland.

   Dr. Foy applied once again for an amended birth certificate asserting the obligation to comply with ECtHR judgements contained in the European Convention on Human Rights Act 2003. The application was refused, and she brought a second set of proceedings to the High Court. In this instance the Court determined that the refusal to recognise Dr. Foy’s gender was a violation of Article 8. Consequently, the High Court issued declaration of incompatibility.[141]

 

3.2 The construction of the Gender Recognition Act 2015

   As a response to the decision of the High Court, the Irish Government established the Gender Recognition Advisory Group (GRAG), tasked with advising “the Minister for Social Protection on the legislation required to provide for legal recognition […] of transsexuals.”[142] The GRAG carried out a consultation with the public and with legal and medical experts from the UK and Ireland.[143] The report of the consultation was published in 2011 where the GRAG recommended requiring that an applicant is unmarried, over the age of 18, has been diagnosed with gender dysphoria, and has lived in the acquired gender for two years, and intends to live in that gender for the remainder of their life. This supposed the implementation of a model virtually identical to the UK’s GRA 2004.[144] The Group followed the example of the UK because it recognised that there was a risk of “frivolous” and “spurious” applications and considered that the GRA 2004 provisions were “sufficient to deter such claims.”[145]

   The Gender Identity Disorder diagnosis, and the two-year real-life test requirements faced great opposition. Peter Dunne has argued that the intensity of this opposition pushed the government to exclude these requirements from the GRA 2013 bill.[146] The 2013 Bill also parted ways with the gender recognition panel. Instead, it provided for an administrative process where an applicant would have to self-declare their gender identity and provide a statement from their "primary treating physician"[147] that asserts that the applicant "has transitioned/is transitioning to their acquired gender.”[148] The GRA Bill 2014, amended the 2013 Bill further. It lowered the minimum age to apply from 18 to 16, and it removed the requirement of a medical statement. The divorce requirement remained in the legislation due to the pending marriage equality referendum, but it was removed by s24 of the Marriage Act 2015.

 

3.3 The Irish Gender Recognition Act 2015

   In the end, the provisions placed in the GRA 2015 are far more progressive than those contained in the initial recommendations. The GRA 2015 provides two systems for gender recognition. One for applicants over the age of 18, and another for applicants aged between 16 and 18. If an applicant is over the age of 18, they must simply provide Minister of Justice with a statutory declaration that they intend to remain in the preferred gender for the rest of their life, as well as some minor personal information.[149] The Minister can then choose to issue or refuse to issue a GRC.[150] To date only one application has been refused.[151] The applicant in question was a non-binary individual requesting recognition of that status, which is not permitted by the GRA 2015.

   If an applicant is between the ages of 16 and 18, they may apply to the Circuit Family Court through a parent, or next friend, for an exemption from the minimum age requirement.[152] To obtain the Court Order the applicant must have the consent of a parent or legal guardian,[153] unless this cannot be obtained because the party cannot be contacted, or it is not in the best interest of the child.[154] Additionally, the application requires a certificate from the child’s primary treating endocrinologist or psychiatrist that states that the child has attained a sufficient degree of maturity to make the decision to apply for gender recognition, the child is aware of the consequences of that decision, the child’s decision is freely and independently made without duress or undue influence from another person, and the child has transitioned or is transitioning.[155]

   Finally, the risk of “frivolous” and “spurious” applications was tackled in section 36 of the act titled “Offences and Penalties.” Subsection one makes it an offence to “knowingly or recklessly provide information to the Minister that is false or misleading in a material respect.” Subsection 2 stipulates that a person who is found to be guilty of an offence under subsection one “shall be liable on summary conviction to a class C fine or imprisonment for a term not exceeding 6 months or both.”

 

3.4 How the Irish model of recognition compares to the UK’s

   The drafting process that began with a model virtually identical to that of the UK, highlights the points of divergence between the Irish and UK Gender Recognition Acts. However, the most striking difference between both models is the lack of consideration given to women’s rights in the GRA 2015. Other than acknowledging the risk of frivolous applications, the GRAG did not identify any other potential risks, and no mention of women’s rights or the safety of women can be found in the 2013 and 2014 Bill debates or within the GRA 2015 itself. This has been attributed to the fact that, because marriage equality was the central focus of national debate, the legislation went “under the radar” in Ireland.[156] This resulted in reduced pressure to place disproportionate safeguards within the legislation to protect women. Which explains why the GRA 2015 includes only a provision criminalising fraudulent applications, and a statutory declaration of intention to guarantee the informed consent of the applicant.

   According to the arguments of gender critical feminists, such an oversight should have led to numerous instances of abuse and harm. However, seven years after its enactment, no such thing has happened. According to the annual report published by the Irish Department of Social Protection, 109 individuals were granted recognition in 2016. This number has remained stable through the years, peaking in 2019 with 168 applications. A number that went down to 115 on 2020, the last data available at the time of writing.[157] This gradual and contained increase, with decreases in both 2017 and 2020, suggests that the system is not being abused.[158] Additionally, at the time of writing, the Gender Identity Research and Education Society has not reported any instances of reversals or fraud.[159]

   While the GRA 2015 is certainly not perfect, it is evident that the Irish model of recognition is much more progressive than the UK’s.[160] By successfully applying lower and less strict evidential requirements, the GRA 2015 demonstrates how the GRA 2004 has become dated, and it brings up compelling arguments why lawmakers in the UK should embrace self-determination.[161] Essentially, the Irish model exemplifies how adequate safeguards can be implemented without infringing on trans people’s autonomy.

 

Conclusion

   This paper has aimed to highlight that, while the GRA 2004 was an improvement on the previous regime of (non)recognition, the medical prerequisites contained within it are no longer an acceptable model of recognition. Because the pathologisation of trans identities serves to further marginalise a rather vulnerable section of the population, a depathologised approach to legal recognition based on self-determination has gained international traction. The UK would largely benefit from embracing this new approach, particularly considering recent developments in ECtHR case law.

   Furthermore, this essay has analysed the value behind political opposition to reform. While worries of fraud and harm might be worth considering, the extent to which gender critical feminists believe self-determination will infringe on women’s rights does not hold up to scrutiny. Firstly, because their arguments seem to stem from misunderstandings of the functioning of the GRA 2004. Secondly, because there seems to be no evidence of trans women or cisgender men endangering women or committing fraud, in the many women-only spaces in the UK that already function in a self-determination basis.

   Finally, the flaws in gender critical arguments as well as the advantages of self-determination are further evidenced by the example of Republic of Ireland. Having a legal system similar to the UK’s, Ireland’s successful implementation of self-determination can serve as a roadmap to follow.

   Therefore, it can be concluded that the time has come for the UK to abandon the medical provisions contained in the GRA 2004 in favour of a model of gender recognition based on self-determination. In a country that once was at the vanguard of trans rights, it is appalling that the Government is increasingly reluctant to implement the successful and internationally accepted model of self-determination, out of a willingness to listen to unfounded arguments from gender critical sectors.

 

Word count: 8000

 

 

 

 

 

 

 

 

 

Bibliography

Table of cases:

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B. v. France 1992 (no. 13343/87) ECHR

Bellinger v. Bellinger [2003] UKHL 21

Burghartz v. Switzerland (no 49/1992/394/472) ECHR 1994

Cassar v. Malta (no. 36982/11) ECHR 2013

Corbett v. Corbett [1970] 2 All ER 33

Cossey v. UK (16/1989/176/232) ECHR 1991

Dudgeon v. the United Kingdom (no. 7525/76) ECHR 1981

Foy v An tArd-Chláraitheoir [2002] IEHC 116

Goodwin v. The United Kingdom (no. 28957/95) ECHR 2002

L. v. Lithuania (no. 27527/03) ECHR 2007

Mikulic v. Croatia (no. 53176/99) ECHR 2002

P. v. Portugal (no. 56027/09) ECHR 2011

Pretty v. The United Kingdom (no. 2346/02) ECHR 2002

Rees v. The United Kingdom (Application no. 9532/81) [1987] 2 FLR 111

Sheffield and Horsham v. the UK (31–32/1997/815–816/1018–1019) ECHR 1998

X and Y v. the Netherlands (no. 8978/80) ECHR 1985

X, Y, & Z v. the UK (75/1995/581/667) ECHR 1997

Y.Y. v. Turkey (no. 14793/08) ECHR 2015

 

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Dunne, Peter The Law Concerning Trans Persons in Ireland in IC Jaramillo Trans Rights and Wrongs: A Comparative Study of Legal Reform Concerning Trans Persons (Springer, 2021)

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Reports:

Annual Report for 2017 under section 6 of the Gender Recognition Act 2015, https://www.gov.ie/en/collection/ea16c-gender-recognition-annual-reports/

Gender Recognition Advisory Group Report to Joan Burton, T.D., Minister for Social Protection 15 June, 2011 Chapter 6 p.45 http://www.welfare.ie/EN/Policy/Legislation/Documents/gragreportjune11.pdf

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Review of the Gender Recognition Act 2015 Report to the Minister for Employment Affairs and Social Protection June 2018  https://assets.gov.ie/36889/825dd1e75f1b43b284a1a245a1710e1c.pdf

 

Legislation, policy, and international documents:

Act on Gender Autonomy No.80 2019

Care and Management of Transgender Offenders Prison Policy 17/2016

Decreto N.º 203/XIII Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa 2018

Equal Status Act 2000

Equality Act 2010

European Convention on Human Rights 1950

European Convention on Human Rights Act 2003

Gender Identity, Gender Expression and Sex Characteristics Act 2015

Gender Recognition Bill 2013

Gender Recognition Act 2004

Gender Recognition Act 2015

Human Rights Act 1998

Lag (1972:119) om fastställande av könstillhörighet i vissa fall 2012

Legal Recognition of Gender Identity National Mechanism for Devising, Monitoring and Evaluation of Action Plans for the Children’s Rights and other provisions 4491 2017

Loi réformant des régimes relatifs aux personnes transgenres 2017

Lov nr 752 om ændring af lov om Det Centrale Personregister 2014

Lov om endring av juridisk kjønn, 2016

Marriage (Same Sex Couples) Act 2013

Resolution 2048 Discrimination against transgender people in Europe 2015

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Yogyakarta Principles Plus 10, Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles 2017

 

Debates and speeches:

Gender Recognition Act Consultation Volume 680 Thursday 24 September 2020

Government Equalities Office and the Rt Hon Liz Truss, Written Ministerial Statement: Response to Gender Recognition Act (2004) consultation, 22 September 2020 https://www.gov.uk/government/speeches/response-to-gender-recognition-act-2004-consultation

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HL Deb. 25 May 2004, Vol. 421, col. 1534

 

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Guidance and regulations:

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---

[1] In this paper the terms “trans” or “transgender” will be used to refer to individuals whose gender identity differs from that assigned at birth. This will be the case except in direct quotations or when referring to a specific source. Terminology is political and activists within and outside of the community have voiced a preference for such terms over the medicalised and antiquated “transsexual” and “transvestite.”

[2] Peter Dunne, “Ten years of gender recognition in the United Kingdom: still a “model for reform”?” (2015) Public Law

[3] House of Commons Women and Equalities Committee. 2015. Transgender Equality. First Report of Session 2015–16. https://publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/390.pdf

[4] Corbett v Corbett [1970] 2 All ER 33

[5] Zoe Playdon, The Hidden Case of Ewan Forbes The Transgender Trial that Threatened to Upend the British Establishment (1^st edn, Bloomsbury Publishing 2021)

[6] Alex Sharpe, A critique of the Gender Recognition Act 2004 (2007) Journal of Bioethical Enquiry 4

[7] IBID n.4 [99] (Ormrod LJ)

[8] IBID

[9] IBID [100] (Ormrod LJ)

[10] IBID [104] (Ormrod LJ)

[11] IBID [106]

[12] Sally Hines “Recognising Diversity? The Gender Recognition Act and Transgender Citizenship” in Sally Hines and Tam Sanger (eds), Transgender Identities (Routledge 2010)

[13] Stephen Whittle “The Opposite of Sex is Politics - The UK Gender Recognition Act and Why it is Not Perfect, Just Like You and Me” (2006) Forum

[14] IBID n.12

[15] European Convention on Human Rights 1950, Article 12

[16] IBID Article 14

[17] Beate Rudolf “European Court of Human Rights: Legal Status of Postoperative Transsexuals” (2003) I.CON 1(4)

[18] [1987] 2 FLR 111

[19] IBID [37]

[20] IBID [47]

[21] IBID

[22] (16/1989/176/232) 1991

[23] (75/1995/581/667) 1997

[24] (31–32/1997/815–816/1018–1019) 1998

[25] IBID [60]

[26] (no. 28957/95) 2002

[27] IBID [74]

[28] IBID [81]

[29] IBID [83]

[30] IBID n.17 [719]

[31] See generally: X and Y v. the Netherlands 1985; Mikulic v. Croatia, no. 53176/99, § 53, ECtHR 2002-I; B. v. France 1992; Burghartz v. Switzerland 1994; and Dudgeon v. the United Kingdom 1981.

[32] (no. 2346/02) 2002 [61]

[33] IBID n.26 [90]

[34] IBID [93]

[35] IBID [77]

[36] IBID

[37] IBID [120]

[38] IBID [93]

[39] [2003] UKHL 21

[40] Stephen Gilmore, Bellinger v Bellinger – Not quite between the ears and between the legs – Transsexualism and marriage in the Lords (2003) Child and Family Law Quarterly, Vol. 15, No. 3, pp. 295-311

[41] Human Rights Act 1998 s 4

[42] IBID n.13

[43] Gender Recognition Act 2004 s.1(1)

[44] IBID s.2(1)(a)

[45] IBID s.2(1)(b)

[46] IBID s.2(1)(c)

[47] IBID S. 3(6A) - (6C) inserted (10.12.2014) by Marriage (Same Sex Couples) Act 2013

[48] IBID s.1(3)

[49] IBID s.9(1)

[50] IBID s.19(2)(a)

[51] IBID s.19(2)(b)

[52] Home Office Report of the interdepartmental working group on transsexual people 2000 http://docs.scie-socialcareonline.org.uk/fulltext/wgtrans.pdf

[53] IBID page 38

[54] IBID Chapter “Key stages for Recognition of Change of Gender” p. 20

[55] IBID p.21

[56] IBID Section 4, page 20

[57] IBID

[58] HL Deb 18 Dec 2003 vol. 655 cc1287-326 [1292], [1306], [1312], [1324]; HL Deb 29 January 2004 vol

656 cc357-436 [360]

[59] Carolynn Gray, “A critique of the legal recognition of transsexuals in UK law” (PhD thesis, University of Glasgow 2016)

[60] IBID n.13

[61] IBID n.51 p. 23, 38, 48

[62] Emily Grabham, “Governing Permanence: Trans Subjects, Time, and the Gender Recognition Act” (2010) 19(1) S.& L.S. 107

[63] David Lammy MP, H.L. Deb. 25 May 2004, Vol. 421, col. 1534

[64] See generally: Janice Raymond “The Transsexual Empire: The Making of the She-Male” (Beacon Press 1979); Janice Raymond “The Politics of Transgender” Feminism & Psychology. 1994;4(4); Bernice Hausman “Changing Sex: Transsexualism, Technology, and the Idea of Gender” (Duke University Press 1995)

[65] IBID n.51 p.14

[66] IBID

[67] Roz Kaveney, Woman Enough 2014 Advocate https://www.advocate.com/print-issue/current-issue/2014/07/16/woman-enough

[68] Sophie Lewis, How British Feminism Became Anti-Trans 2019 The New York Times https://www.nytimes.com/2019/02/07/opinion/terf-trans-women-britain.html; Katelyn Burns, The rise of anti-trans “radical” feminists, explained 2019 Vox https://www.vox.com/identities/2019/9/5/20840101/terfs-radical-feminists-gender-critical

[69] Alex Sharpe, “Gender Recognition in the UK: A Great Leap Forward” 2009 Social and Legal Studies 18(2)

[70] Cowan S, ‘“Gender is no substitute for sex”: A comparative human rights analysis of the legal regulation of sexual identity.” (2005) Feminist Legal Studies 13:67-96

[71] See generally: Ralph Sandland “Running to stand Still”, 2009, Social and Legal Studies, 18 (2); and Alex Sharpe, “A Critique of the Gender Recognition Act 2004”, 2007, Bioethical Inquiry, 4, 33-42.

[72] Gender Recognition Reform (Scotland) Bill: consultation 2019 p,11 https://www.gov.scot/publications/gender-recognition-reform-scotland-bill-consultation-scottish-government/

[73] T. Theilen Depathologisation of Transgenderism and International Human Rights Law (2014) Jens

[74] Callard, Sartorius and Arboleda-Florez, Mental Illness, Discrimination, and the Law: Fighting for Social Justice (Somerset NJ: Willey Blackwell, 2012) p20

[75] IBID n.71

[76] IBID

[77] Yogyakarta Principles Plus 10, Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles 2017 Principle 18

[78] Resolution 2048 Discrimination against transgender people in Europe 2015

[79] While this includes eliminating all barriers, including age, marital status, and bureaucratic requirements, at the core of self-determination is the elimination of medical models of recognition.

[80] IBID n.76 s 6.2

[81] Peter Dunne, Rethinking legal gender recognition: recent reforms in Argentina, Denmark and the Netherlands, 2015 IFL

[82] This is a non-exhaustive list that will be explored in depth in section 2.2 when discussing ECtHR case law.

[83] See generally, European Court of Human Rights Factsheet on Gender Identity Issues, February 2022 https://www.echr.coe.int/Documents/FS_Gender_identity_ENG.pdf

[84] See generally, L. v. Lithuania (no. 27527/03), P. v. Portugal (no. 56027/09), and Cassar v. Malta (no. 36982/11)

[85] (no. 79885/12) 2017

[86] (no. 14793/08) 2015. This case in not being discussed within this dissertation because it concerned sterilization requirements in the context of gender affirming surgery and the ECtHR refused to consider whether such requirements would be appropriate for legal gender recognition (Paragraph 41)

[87] IBID n.83 p.73

[88] IBID [9]/[123]

[89] IBID [132]

[90] IBID [138]

[91] IBID [139]

[92] IBID [139]

[93] Peter Dunne, Legal gender recognition in Europe: sterilisation diagnosis and medical examination requirements, (2017) Journal of Social Welfare and Family Law

[94] Additionally, Germany, Cyprus, and Spain have recently introduced proposals to implement self-determination in their jurisdictions.

[95] In order of mention: Gender Recognition Act 2015; Lov nr 752 om ændring af lov om Det Centrale Personregister 2014; Lov om endring av juridisk kjønn, 2016; Gender Identity, Gender Expression and Sex Characteristics Act 2015; Loi réformant des régimes relatifs aux personnes transgenres 2017; Schweizerisches Zivilgesetzbuch BBI 9931 2020; Lag (1972:119) om fastställande av könstillhörighet i vissa fall 2012; Decreto N.º 203/XIII 2018; Act on Gender Autonomy No.80 2019; Legal Recognition of Gender Identity 4491 2017.

[96] IBID n.3 page 3

[97] IBID p.45, page 14

[98] Government Equalities Office Reform of the Gender Recognition Act: Analysis of Consultation Responses Presented to Parliament September 2020, Chapter 6, Page 41 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/919890/Analysis_of_responses_Gender_Recognition_Act.pdf

[99] IBID Chapter 8 page 52

[100] Government Equalities Office and the Rt Hon Liz Truss, Written Ministerial Statement: Response to Gender Recognition Act (2004) consultation, 22 September 2020 https://www.gov.uk/government/speeches/response-to-gender-recognition-act-2004-consultation

[101] The inquiry also looked at the delay in responding to the 2018 consultation. In this regard, the Minister for equalities attributed the time taken, not only to the complexity of the subject matter, but also to the complex political and social circumstances of the time (such as the general election in December 2019 and the COVID-19 pandemic). A similar reasoning can be applied to the two-year delay in the response to the 2016 report, as at that time the Brexit referendum had just taken place.

[102] House of Commons Women and Equalities Committee Reform of the Gender Recognition Act Third Report of Session 2021–22 Conclusions and Recommendations, p, 71 https://publications.parliament.uk/pa/cm5802/cmselect/cmwomeq/977/report.html

[103] IBID, The Government’s consultation on and response to Gender Recognition Act reform p, 21

[104] Reform of the Gender Recognition Act: Government response to the Committee’s Third Report Fifth Special Report of Session (2021–22) https://publications.parliament.uk/pa/cm5802/cmselect/cmwomeq/129/report.html

[105] Gender Recognition Act Consultation Volume 680: debated on Thursday 24 September 2020

[106] Equality and Human Rights Commission, Chairwoman Baroness Kishwer Falkner, Letter to Cabinet Office 26 January 2022 https://www.equalityhumanrights.com/sites/default/files/letter-to-cabinet-office-our-position-gender-recognition-act-2004-reform-january-2022.docx

[107] IBID n. 99 Contribution of Professor Rosa Freedman, p. 31

[108] See generally: J. Norman, ‘Is everyone really wrong?’ FiLiA 2 August 2018 https://filia.org.uk/news/2018/8/23/has-everyone-really-got-it-wrong; and R. Freedman and R. Auchmuty, ‘Women’s rights and the proposed changes to the Gender Recognition Act’ Oxford Human Rights Hub 1 August 2018 at http://ohrh.law.ox.ac.uk/womens-rights-and-the-proposed-changes-to-the-gender-recognition-act/

[109] Melanie Phillips “It’s dangerous and wrong to tell all children that they are gender fluid” 2017 The spectator https://www.spectator.co.uk/article/it-s-dangerous-and-wrong-to-tell-all-children-they-re-gender-fluid-23-july-2017

[110] IBID n.99 p.31

[111] IBID n.95 p.11

[112] IBID p.45

[113] Helen Lewis “Is Jeremy Corbyn right that trans people should be allowed to self-identify their gender?” 2017 New Statesman https://www.newstatesman.com/politics/2017/07/jeremy-corbyn-right-trans-people-should-be-allowed-self-identify-their-gender

[114] K. Stock, ‘Changing the concept of “woman” will cause unintended harms’ The Economist 6 July 2018 at https://www.economist.com/open-future/2018/07/06/changing-the-concept-of-woman-will-cause-unintended-har-ms

[115] Alex Sharpe “Will self-determination undermine women’s rights and lead to an increase in harms?” (2020) Modern Law Review

[116] Equality and Human Rights Commission, Equality Act 2010 Code of practice (2011) https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf.

[117] IBID

[118] IBID n.114

[119] Equality and Human Rights Commission, Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions, April 2021, https://www.equalityhumanrights.com/en/advice-and-guidance/separate-and-single-sex-service-providers-guide-equality-act-sex-and-gender

[120] Care and Management of Transgender Offenders prison policy 17/2016 Paragraph 4.7; IBID n.112 p. 546

[121] IBID n.101

[122] See generally: Equality in Sport “Guidance for Transgender Inclusion in Domestic Sport” (2021) https://equalityinsport.org/docs/300921/Guidance%20for%20Transgender%20Inclusion%20in%20Domestic%20Sport%202021.pdf; United Kingdom Athletics “Eligibility for competition: transgender and female classification regulation” 2021, http://www.uka.org.uk/wp-content/uploads/2021/06/UKA-Eligibility-for-Competition-Transgender-and-Female-Classification-Regulations-May-2021.pdf; Word Athletics “Eligibility regulations for the female classification (athletes with differences of sex development)” December 2021, available at https://www.worldathletics.org/about-iaaf/documents/book-of-rules; and International Olympic Committee “IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism” November 2015, https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf

[123] Stonewall, ‘Supporting trans women in domestic and sexual violence services: interviews with professionals in the sector’ (2018)  https://www.stonewall.org.uk/resources/supporting-trans-women-domestic-and-sexual-violence-services

[124]  IBID

[125] See generally: Nirta “A Critique of the Model of Gender Recognition and the Limits of Self‑Declaration for Non‑Binary Trans Individuals” 2021

[126] IBID n.99 p.30

[127] Peter Dunne, The Law Concerning Trans Persons in Ireland in IC Jaramillo Trans Rights and Wrongs: A Comparative Study of Legal Reform Concerning Trans Persons (Springer, 2021)

[128] Much like in the Human Rights Act 1998, The European Convention on Human Rights Act 2003 requires the courts to interpret legislation in line with the convention insofar as it is possible to do so and requires certain public bodies to perform their functions in a manner compatible with the convention. The Act also provides that courts may make a declaration of incompatibility regarding a breach of a convention right.

[129] Equal Status Act 2000 s 5 (2) (g)

[130] IBID n.124

[131] Peter Dunne, The UK Transgender Equality Inquiry 2016 Family Law

[132] Foy v An tArd Chlaraitheoir (No 1) [2002] IEHC 116 [85]

[133] IBID

[134] IBID

[135] IBID

[136] IBID [1]

[137] IBID [121]

[138] IBID [99]

[139] IBID [168]

[140] IBID [126]

[141] European Convention on Human Rights Act 2003, s.5

[142] Gender Recognition Advisory Group Report to Joan Burton, T.D., Minister for Social Protection 15 June, 2011 Chapter 6 p.45 http://www.welfare.ie/EN/Policy/Legislation/Documents/gragreportjune11.pdf

[143] Review of the Gender Recognition Act 2015 Report to the Minister for Employment Affairs and Social Protection June 2018 P.21-22 https://assets.gov.ie/36889/825dd1e75f1b43b284a1a245a1710e1c.pdf

[144] Jack Heron, Gender Recognition in Comparison: Ireland, the UK and the world (2019) Irish Law Times

[145] IBID n,142 Chapter 2 p,8

[146] Peter Dunne “The Physicians Statement Model in Ireland’s Gender Recognition Bill 2013” 2014 European Human Rights Law Review 1

[147] Gender Recognition Bill 2013 Heading Six (a)(vi)

[148] IBID

[149] Gender Recognition Act 2015 s.10

[150] IBID ss.8-10

[151] Annual Report for 2017 under section 6 of the Gender Recognition Act 2015, https://www.gov.ie/en/collection/ea16c-gender-recognition-annual-reports/

[152] IBID n.146 ss.12(2) &12(3)

[153] IBID s.12(5)

[154] IBID s.12(5)(i) & (ii)

[155] IBID s. 12(4)(b)(i) & (ii)

[156] The International Lesbian, Gay, Bisexual, Transgender, Queer & Intersex Youth and Student Organisation Only adults? Good practices in legal gender recognition for youth a report on the current state of laws and NGO advocacy in eight countries in Europe, with a focus on rights of young people 2019 https://www.iglyo.com/wp-content/uploads/2019/11/IGLYO_v3-1.pdf

[157] All annual reports from 2016 to 2020 are available at https://www.gov.ie/en/collection/ea16c-gender-recognition-annual-reports/

[158] IBID n.122

[159] Gender Identity Research and Education Society the Gender Recognition Act Discussion (2019), https://www.gires.org.uk/the-gender-recognition-act-discussion-july-2019/

[160] IBID n.141

[161] Peter Dunne, Transgender Rights in the United Kingdom and Ireland: Reviewing Gender Recognition Rules University of Bristol Law School Blog, https://legalresearch.blogs.bris.ac.uk/2017/11/transgender-rights-in-the-united-kingdom-and-ireland-reviewing-gender-recognition-rules/#:~:text=Dunne%20Transgender%20Children%20and%20the,the%20UK's%20gender%20recognition%20framework.