Gender Recognition Act 2004
Encyclopedia
The Gender Recognition Act 2004 is an Act
of the Parliament of the United Kingdom
that allows transsexual people to change their legal gender
. It came into effect on 4 April 2005.
(male or female) allowing them to acquire a new birth certificate
, affording them full recognition of their acquired sex in law for all purposes, including marriage. The two main exceptions are a right of conscience for Church of England
clergy (who are normally obliged to marry any two eligible people by law), and that the descent of peerage
s will remain unchanged. Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'.
People present evidence to a Gender Recognition Panel
, which considers their case and issues a Gender Recognition Certificate. If the person involved is in a legally-recognised marriage they will be issued an 'Interim Gender Recognition Certificate', which can then be used as grounds for annulment of the marriage, but otherwise has no status. After annulment, a full Certificate will be issued.
The Act requires applicants to have transitioned
two years before a certificate is issued. It makes no requirement for sex reassignment surgery
to have taken place, although such surgery will be accepted as part of the supporting evidence for a case where it has taken place. There was a six month period from 4 April 2005 until 3 October 2005, where only people who transitioned six or more years previous could apply. Additionally, for two years following implementation of the Act, those who transitioned six years or more previous to application for a gender recognition certificate were required to supply a lesser level of evidence, as such people were likely to have problems in obtaining some of the documentary evidence that would be required of those who had transitioned later. There is also a mechanism whereby those who have obtained legal recognition in recognised overseas jurisdictions may obtain recognition under the Gender Recognition Act with much reduced evidence requirements; such applicants are not required to have transitioned two years before nor to be resident overseas. Successful applicants are entered onto a Gender Recognition Register, held by the registrar general, similar in operation to the Adoptions Register for those who have been adopted.
A Birth Certificate drawn from the Gender Recognition Register is indistinguishable from any other birth certificate, and will indicate the new legal sex and name. It can be used wherever a birth certificate is used, such as for issue of a passport. The birth certificate showing the previous legal gender continues to exist, and will carry no indication that there is an associated Gender Recognition Certificate or alternative birth certificate. Certain authorised agencies, with court permission, may have access to the Gender Recognition Register showing the links between these certificates, but the link will be invisible to the general public. This is the same way that birth certificates drawn from the Adoption Register work.
The previous precedent dated back to 1970, when Arthur Cameron Corbett, 3rd Baron Rowallan had his marriage annulled on the basis that his wife, April Ashley
, being a transsexual woman
, was legally male. This argument was accepted by the judge, and the legal test for gender in the UK had been based on this judgement
ever since; it had even led to the curiosity of a legal marriage between two lesbians
since one had been born male.
The European Court of Human Rights
ruled on 11 July 2002, in Christine Goodwin v The United Kingdom, Case No 28957/1995, (also known as Christine Goodwin and I v United Kingdom [2002] 2 FCR 577), that "the UK Government had discriminated based on the following : Violation of Articles 8 and 12 of the European Convention on Human Rights
". Following this judgement, the UK Government had to introduce new legislation to comply.
was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10 February 2004, with 155 votes in favour and 57 against. The House of Commons passed it on 25 May. It received Royal Assent
on 1 July 2004.
The bill faced criticism in the House of Lords, including a wrecking amendment
from Lord Tebbit
(who has described sex reassignment surgery as "mutilation"), and from Baroness O'Cathain, who introduced an amendment to allow religious groups to exclude transsexual people. However, this amendment was narrowly defeated after opposition from the Bishop of Worcester
and the Bishop of Winchester
.
Support for the bill in the House of Commons was split broadly down party lines. At both the second and third readings (i.e. before and after amendments), all Labour Party
, Liberal Democrat
, Plaid Cymru
and Scottish National Party
votes were in favour of the bill; all Ulster Unionist and Democratic Unionist Party
votes were against. Conservative Party
MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote. 25 Conservative MPs voted in favour and 22 against the bill at its second reading, and 20 voted in favour and 39 voted against the bill at its third reading. Less than half of the Conservative Party's 166 MPs participated in either vote. Among those who voted against the bill were Ann Widdecombe
(who opposed it on religious grounds), Dominic Grieve
, Peter Lilley
and Andrew Robathan
. Among Conservative MPs who supported the bill were Kenneth Clarke
, Constitutional Affairs spokesman Tim Boswell
, and future speaker John Bercow
.
, viewed this requirement as inhumane and destructive of the family. MP Hugh Bayley
said in the commons debate "I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced". Despite this opposition, the government chose to retain this requirement of the Bill. Parliamentary Under-Secretary for Constitutional Affairs, David Lammy, speaking for the Government, said ‘"it is the Government's firm view that we cannot allow a small category of same-sex marriages"
Although the Civil Partnership Act 2004
allows the creation of civil partnerships between same sex couples, a married couple that includes a transgendered partner cannot simply re-register their new status. They must first have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs. Once the annulment is declared final and the GRC issued the couple then have to make arrangements with the local registrar to have the civil partnership ceremony; they have four weeks grace. The marriage is ended and a completely new arrangement brought into being which does not in all circumstances (such as wills) necessarily follow on seamlessly (or even contemporaneously).
Tamara Wilding of the Beaumont Society pressure group said that it was "not fair that people in this situation should have to annul their marriage and then enter a civil partnership. The law needs tidying up. It would be easy to put an amendment in the civil partnership law to allow people who have gone through gender-reassignment, and want that to be recognised, to have the status of their relationship continued." As discussed above parliament has already chosen not to do this, a legal viewpoint supported by others, such as barrister
Karen Brody, who have argued that a change in the law isn't necessary. From a legal perspective this may be true as most of the benefits of marriage are available to the couple under a Civil Partnership. However, the emotional stress caused is immeasurable as in the case of a Scottish couple.
The Equality and Human Rights Commission (EHRC) appreciates the challenges to married transsexual people and their partners presented by Schedule 2 of the Act and in a recent submission to government they recommend
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that allows transsexual people to change their legal gender
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
. It came into effect on 4 April 2005.
Operation of the law
The Act gives transsexual people legal recognition as members of the sex appropriate to their genderGender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
(male or female) allowing them to acquire a new birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
, affording them full recognition of their acquired sex in law for all purposes, including marriage. The two main exceptions are a right of conscience for Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
clergy (who are normally obliged to marry any two eligible people by law), and that the descent of peerage
Peerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
s will remain unchanged. Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'.
People present evidence to a Gender Recognition Panel
Gender Recognition Panel
The Gender Recognition Panel is a tribunal in the United Kingdom dealing with transsexual and transgender concerns and allowing people to change their legal gender. It was founded as a response to the Gender Recognition Act 2004.-See also:...
, which considers their case and issues a Gender Recognition Certificate. If the person involved is in a legally-recognised marriage they will be issued an 'Interim Gender Recognition Certificate', which can then be used as grounds for annulment of the marriage, but otherwise has no status. After annulment, a full Certificate will be issued.
The Act requires applicants to have transitioned
Transitioning (transgender)
Transitioning is the process of changing one's gender presentation to accord with one's internal sense of one's gender - the idea of what it means to be a man or woman...
two years before a certificate is issued. It makes no requirement for sex reassignment surgery
Sex reassignment surgery
Sex reassignment surgery is a term for the surgical procedures by which a person's physical appearance and function of their existing sexual characteristics are altered to resemble...
to have taken place, although such surgery will be accepted as part of the supporting evidence for a case where it has taken place. There was a six month period from 4 April 2005 until 3 October 2005, where only people who transitioned six or more years previous could apply. Additionally, for two years following implementation of the Act, those who transitioned six years or more previous to application for a gender recognition certificate were required to supply a lesser level of evidence, as such people were likely to have problems in obtaining some of the documentary evidence that would be required of those who had transitioned later. There is also a mechanism whereby those who have obtained legal recognition in recognised overseas jurisdictions may obtain recognition under the Gender Recognition Act with much reduced evidence requirements; such applicants are not required to have transitioned two years before nor to be resident overseas. Successful applicants are entered onto a Gender Recognition Register, held by the registrar general, similar in operation to the Adoptions Register for those who have been adopted.
A Birth Certificate drawn from the Gender Recognition Register is indistinguishable from any other birth certificate, and will indicate the new legal sex and name. It can be used wherever a birth certificate is used, such as for issue of a passport. The birth certificate showing the previous legal gender continues to exist, and will carry no indication that there is an associated Gender Recognition Certificate or alternative birth certificate. Certain authorised agencies, with court permission, may have access to the Gender Recognition Register showing the links between these certificates, but the link will be invisible to the general public. This is the same way that birth certificates drawn from the Adoption Register work.
Background
The Act was drafted in response to court rulings from the European Court of Human Rights.The previous precedent dated back to 1970, when Arthur Cameron Corbett, 3rd Baron Rowallan had his marriage annulled on the basis that his wife, April Ashley
April Ashley
April Ashley is an English model and restaurant hostess. She was the first British person to be outed as a transsexual, which was by the Sunday People in 1961...
, being a transsexual woman
Trans woman
A trans woman is a male-to-female transsexual or transgender person and the term trans woman is preferred by some individuals over various medical terms. Other non-medical terms include t-girl, tg-girl and ts-girl...
, was legally male. This argument was accepted by the judge, and the legal test for gender in the UK had been based on this judgement
Corbett v Corbett
The case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom...
ever since; it had even led to the curiosity of a legal marriage between two lesbians
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
since one had been born male.
The European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
ruled on 11 July 2002, in Christine Goodwin v The United Kingdom, Case No 28957/1995, (also known as Christine Goodwin and I v United Kingdom [2002] 2 FCR 577), that "the UK Government had discriminated based on the following : Violation of Articles 8 and 12 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
". Following this judgement, the UK Government had to introduce new legislation to comply.
Legislative progress
The billBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10 February 2004, with 155 votes in favour and 57 against. The House of Commons passed it on 25 May. It received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 1 July 2004.
The bill faced criticism in the House of Lords, including a wrecking amendment
Wrecking amendment
In legislative debate, a wrecking amendment is an amendment made by a legislator who disagrees with the principles of a bill and who seeks to make it useless rather than directly opposing the bill by simply voting...
from Lord Tebbit
Norman Tebbit
Norman Beresford Tebbit, Baron Tebbit, CH, PC , is a British politician. A member of the Conservative Party, he served in the Cabinet from 1981 to 1987 as Secretary of State for Employment...
(who has described sex reassignment surgery as "mutilation"), and from Baroness O'Cathain, who introduced an amendment to allow religious groups to exclude transsexual people. However, this amendment was narrowly defeated after opposition from the Bishop of Worcester
Bishop of Worcester
The Bishop of Worcester is the Ordinary of the Church of England Diocese of Worcester in the Province of Canterbury, England. He is the head of the Diocese of Worcester in the Province of Canterbury...
and the Bishop of Winchester
Bishop of Winchester
The Bishop of Winchester is the head of the Church of England diocese of Winchester, with his cathedra at Winchester Cathedral in Hampshire.The bishop is one of five Church of England bishops to be among the Lords Spiritual regardless of their length of service. His diocese is one of the oldest and...
.
Support for the bill in the House of Commons was split broadly down party lines. At both the second and third readings (i.e. before and after amendments), all Labour Party
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
, Liberal Democrat
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
, Plaid Cymru
Plaid Cymru
' is a political party in Wales. It advocates the establishment of an independent Welsh state within the European Union. was formed in 1925 and won its first seat in 1966...
and Scottish National Party
Scottish National Party
The Scottish National Party is a social-democratic political party in Scotland which campaigns for Scottish independence from the United Kingdom....
votes were in favour of the bill; all Ulster Unionist and Democratic Unionist Party
Democratic Unionist Party
The Democratic Unionist Party is the larger of the two main unionist political parties in Northern Ireland. Founded by Ian Paisley and currently led by Peter Robinson, it is currently the largest party in the Northern Ireland Assembly and the fourth-largest party in the House of Commons of the...
votes were against. Conservative Party
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote. 25 Conservative MPs voted in favour and 22 against the bill at its second reading, and 20 voted in favour and 39 voted against the bill at its third reading. Less than half of the Conservative Party's 166 MPs participated in either vote. Among those who voted against the bill were Ann Widdecombe
Ann Widdecombe
Ann Noreen Widdecombe is a former British Conservative Party politician and has been a novelist since 2000. She is a Privy Councillor and was the Member of Parliament for Maidstone from 1987 to 1997 and for Maidstone and The Weald from 1997 to 2010. She was a social conservative and a member of...
(who opposed it on religious grounds), Dominic Grieve
Dominic Grieve
Dominic Charles Roberts Grieve, QC MP is a British Conservative politician, barrister and Queen's Counsel.He is the Member of Parliament for Beaconsfield and the Attorney General for England and Wales and the Advocate General for Northern Ireland.-Early life:Grieve was born in Lambeth, the son of...
, Peter Lilley
Peter Lilley
Peter Bruce Lilley MP is a British Conservative Party politician who has been a Member of Parliament MP since 1983. He currently represents the constituency of Hitchin and Harpenden and, prior to boundary changes, represented St Albans...
and Andrew Robathan
Andrew Robathan
Andrew Robert George Robathan is a British Conservative politician, and Member of Parliament for South Leicestershire in Leicestershire...
. Among Conservative MPs who supported the bill were Kenneth Clarke
Kenneth Clarke
Kenneth Harry "Ken" Clarke, QC, MP is a British Conservative politician, currently Member of Parliament for Rushcliffe, Lord Chancellor and Secretary of State for Justice. He was first elected to Parliament in 1970; and appointed a minister in Edward Heath's government, in 1972, and is one of...
, Constitutional Affairs spokesman Tim Boswell
Tim Boswell
Timothy Eric "Tim" Boswell, Baron Boswell of Aynho is an English Conservative Party politician who was the Member of Parliament for Daventry from 1987 until he retired at the 2010 general election.-Education:...
, and future speaker John Bercow
John Bercow
John Simon Bercow is a British politician who has been the Speaker of the House of Commons in the United Kingdom since June 2009. Prior to his election to Speaker he was a member of the Conservative party....
.
Concerns regarding marriages and civil partnerships
Concerns about the act have been raised by supporters of transsexual rights, particularly regarding marriages and civil partnerships. The act requires people who are married to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate. Some parliamentarians, such as Evan HarrisEvan Harris
Evan Leslie Harris is a British Liberal Democrat politician. He was the Member of Parliament for Oxford West and Abingdon from 1997 to 2010, losing his seat in the 2010 general election by 176 votes to Conservative Nicola Blackwood....
, viewed this requirement as inhumane and destructive of the family. MP Hugh Bayley
Hugh Bayley
Hugh Bayley is a British Labour Party politician and Member of Parliament for York Central. He held the City of York seat from 1992 to the 2010 general election, when boundary changes took effect.-Early life:...
said in the commons debate "I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced". Despite this opposition, the government chose to retain this requirement of the Bill. Parliamentary Under-Secretary for Constitutional Affairs, David Lammy, speaking for the Government, said ‘"it is the Government's firm view that we cannot allow a small category of same-sex marriages"
Although the Civil Partnership Act 2004
Civil Partnership Act 2004
The Civil Partnership Act 2004 is an Act of the Parliament of the United Kingdom. The Bill for this Act was introduced by the Labour government and supported by the Conservative and Liberal Democrat opposition. The Act grants civil partnerships in the United Kingdom with rights and...
allows the creation of civil partnerships between same sex couples, a married couple that includes a transgendered partner cannot simply re-register their new status. They must first have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs. Once the annulment is declared final and the GRC issued the couple then have to make arrangements with the local registrar to have the civil partnership ceremony; they have four weeks grace. The marriage is ended and a completely new arrangement brought into being which does not in all circumstances (such as wills) necessarily follow on seamlessly (or even contemporaneously).
Tamara Wilding of the Beaumont Society pressure group said that it was "not fair that people in this situation should have to annul their marriage and then enter a civil partnership. The law needs tidying up. It would be easy to put an amendment in the civil partnership law to allow people who have gone through gender-reassignment, and want that to be recognised, to have the status of their relationship continued." As discussed above parliament has already chosen not to do this, a legal viewpoint supported by others, such as barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
Karen Brody, who have argued that a change in the law isn't necessary. From a legal perspective this may be true as most of the benefits of marriage are available to the couple under a Civil Partnership. However, the emotional stress caused is immeasurable as in the case of a Scottish couple.
The Equality and Human Rights Commission (EHRC) appreciates the challenges to married transsexual people and their partners presented by Schedule 2 of the Act and in a recent submission to government they recommend
“The government amends the Gender Recognition Act to allow for the automatic conversion of a marriage into a civil partnership upon one member of the couple obtaining a gender recognition certificate”.
See also
- LGBT rights in the United Kingdom
- Corbett v CorbettCorbett v CorbettThe case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom...
- Legal aspects of transsexualismLegal aspects of transsexualismTranssexual people are those who establish a permanent identity with the gender opposite to the gender identified at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of...
- List of transgender-related topics