The court held that an investigation of a disorder was an antiquated notion which was unnecessary and unjustified.
However, the court held that the overall necessity for a diagnosis to be supplied in support of a gender recognition application was fair and also within the discretion of Parliament. In so ruling, the court implemented well-established European case law like AP, Garçon and Nicot v. France (2017) (App Nos 79885/12, 52471/13 and 52596/13).
Wallpaper
The offender, who was anonymised by court order, brought judicial review proceedings against the Authorities Equalities Office (GEO), that was responsible to the 2004 Act. The applicant was a transgender girl who wished to be awarded a Gender Recognition Certificate. She hadn’t experienced any surgical procedures to change her gender. But she had problems in obtaining the requisite medical reports for a diagnosis of body dysphoria, which have been required under the 2004 Act.
The applicant claimed the essentials of this 2004 Act breached her right to a private life under Article 8 of the ECHR. In particular, she claimed that the need for her to be diagnosed with gender dysphoria as defined under the Act was derogatory and offensive. She maintained there was no clear need for her to prove any medical diagnosis of gender incongruence to be allowed a GRC, claiming that it was a strictly legal process.
The applicant relied heavily on the coverage and strategy adopted by the recent UK government to the matter. Since 2016, many actions taken by parliamentary and government bodies suggested the medical aspect would be taken out of the legislation. The Woman and Equalities Committee concluded that the”medical approach” to sex recognition was outdated. Additionally, it was said that”gender dysphoria” should be replaced with”sex incongruence” to signify how a transgender person was not suffering from a mental disorder.
Equally, a 2018 consultation paper in the government outlined the current strategy under the 2004 Act required change and the medical report requirements should be removed. In April 2019, GEO officials recommended removing the medical aspect to the process. However, after a change in leadership in Downing Street, the suggested changes to the legislation were reduced to the mere swapping of language between gender dysphoria and gender incongruence. Finally, in July 2020, the authorities decided it would continue to keep the legislation as it stood.
In these conditions, the applicant challenged every one of the provisions in the 2004 Act that mandated that a individual must prove they have gender dysphoria to be granted a GRC.
Giving judgment in the situation, Mr Justice David Scoffield accepted that the required diagnosis of a”disorder” was incompatible with the applicant’s rights under Article 8 of this Convention. However, the court refused to hold that the need for a medical diagnosis for a GRC was unfair to the applicant.
The court began by setting out the factual history of this case and subsequently turned to the case law. The court focused largely on the AP, Garçon and Nicot case, which held that a necessity to demonstrate the occurrence of a gender identity disorder in order to procure legal sex recognition was not a breach of Article 8, nor was a necessity to undergo a health examination. While the ECtHR admitted that Article 8 had been engaged by the gender recognition process, it reasoned that member states had to be given a broad margin of appreciation on the issue. Specifically, it had been noted that there was no consensus on the proper approach to sex recognition and medical reports were a common condition in Europe.
In analysing domestic case law, the court held that where the ECtHR had left a matter to a State’s margin of appreciation, then domestic courts had to decide what the domestic standing was, the degree of involvement or intervention that was appropriate, and what degree of institutional respect attached to some relevant legislative choice. Further, it was held that a domestic court would be very careful to hold that a Convention right was infringed if that right fell with the State’s margin of appreciation (R (Nicklinson) v Ministry of Justice [2014] UKSC 38; D v Commissioner of Police of the Metropolis [2018] UKSC 11).
Applying the principles to the facts, the court held that a fair balance had been struck by Parliament in demanding a relevant diagnosis in service of a GRC program. The court stated that the AP, Garcon and Nicol situation made it to member countries to find out the sensitive moral and ethical dilemmas in GRC applications. Although there may be indications of a move away from requiring medical records in different nations, the court held that this was not an appropriate instance to”forge ahead” of the ECtHR jurisprudence.
The court held that the 2004 Act struck a reasonable balance between the rights of the person and the community as a whole. The need for medical reports supplied proper safeguards for their interests. It had been noted that altering a individual’s sex was a significant and formal matter with possibly far-reaching consequences and it wasn’t the court’s function to ascertain the best method for gender recognition.
On the other hand, the court held that the requirement of a lawyer to prove that they had a disease has been”an unnecessary affront to the dignity of an individual” employing under an authorized process. This was especially so given the government did not contend that a transgender individual had a disease at all, where”its own public-facing records say the contrary”.
The court said that the present legislation provided that a problem for applicants, saying:”To be able to maintain their legal rights to sex recognition they need to denigrate that aspect of the identity which the 2004 Act is in principle designed to vindicate.” What’s more, the government’s submission that the change in language (e.g. using the phrase”gender incongruence”) might lead to confusion amongst professionals wasn’t satisfactory at all. Practitioners should be able to handle a change in terminology and are expected to keep up to date with contemporary practices, ” the court said.
Conclusion
However, the court held that the requirement to prove that she was afflicted by a”disease” was unnecessary, unjustified and incompatible with the ECHR. The court held that it would hear additional submissions from the parties regarding the appropriate remedy after the choice.
