Gender Recognition Act – requirement of ‘disorder’ incompatible with human rights.

A High Court Judge held that the obligation to prove disorder via medical reports in order to secure official recognition of preferred gender is incompatible with human rights.

The woman, who began her transition more than 20 years ago, took legal action in a bid to obtain a new birth certificate.

But in order to obtain the necessary Gender Recognition Certificate (GRC) she must provide evidence of a specific disorder – gender dysphoria. Her lawyers that amounted to unlawful stigmatisation.

Ruling on the challenge, Mr Justice Scoffield found that the specific requirement to prove she was suffering from a disorder was unjustified.

He described it as “an unnecessary affront to the dignity of a person applying for gender recognition through the legal process set out for that purpose by Parliament”.

Judicial review proceedings brought against the Government Equalities Office (GEA) focused on the terms of the Gender Recognition Act 2004.

Granted anonymity, the woman claimed in an affidavit that the legal requirement caused her to feel shame and distress.

“It makes me feel that what I am, at the core of my being, in terms of my gender identity, is pathological and disordered,” she stated.

“As the evidence before the court demonstrates, such feelings are not unique to me but, sadly, are all too common for trans people in the United Kingdom and, indeed, across the world.”

Her legal team contended that the alleged difference in treatment for a vulnerable group in society is incompatible with the European Convention on Human Rights.

Counsel for the GEA, Tony McGleenan QC, rejected the claims of discrimination.

He also pointed to a lack of consensus among EU countries about any potential alternative process of self-determination.

In his judgment Mr Justice Scoffield concluded that it was proportionate to require medical reports as part of the GRC process. He held that the obligation for specialist input in support of an application strikes a fair balance between the individual’s interests and those of the community.

However, he confirmed the woman succeeded in her challenge to having to demonstrate suffering from a disorder to secure the certificate.

That specific requirement is now unnecessary and unjustified, particularly in light of diagnostic developments, the judge said.

A further hearing will determine how to deal with the identified incompatibility.

Following the ruling the woman’s solicitor, Ciaran Moynagh of Phoenix Law, said: “We are delighted the court today has recognised that being trans is not a mental illness and the word disorder is now unjustified and stigmatising.

“We look forward to learning how the Government will remedy the Gender Recognition Act in light of this judgment.

Source: Alan Irwin https://www.newsletter.co.uk/news/crime/transgender-womans-rights-breached-rules-high-court-judge-3237249

Full Judgment: https://www.judiciaryni.uk/judicial-decisions/2021-niqb-48