Gender Recognition Act 2004
|Long title||An Act to make provision for and in connection with change of gender.|
|Citation||2004 c. 7|
|Territorial extent||England and Wales; Scotland; Northern Ireland|
|Royal assent||1 July 2004|
|Commencement||4 April 2005|
|Text of statute as originally enacted|
|Revised text of statute as amended|
Operation of the law
The Gender Recognition Act 2004 enables transsexual people to apply to receive a Gender Recognition Certificate (GRC). A Gender Recognition Certificate is the document issued that shows that a person has satisfied the criteria for legal recognition in the acquired gender. The Act gives people with gender dysphoria legal recognition as members of the sex appropriate to their gender role (masculine or feminine) allowing them to acquire a Gender Recognition Certificate. It does not provide a new birth certificate to replace, amend, or correct the natal Birth Certificate. Since the UK no longer updates birth certificates for trans people (that practice ceased in the 1960s), although they have limited legal recognition in their preferred gender, their biological sex remains that recorded at birth. Accordingly, a Gender Recognition Certificate provides some concessions to trans people by affording them limited recognition of their acquired sex in some contexts. Two main exceptions to trans people's legal recognition are that the descent of peerages will remain unchanged (important only for primogeniture inheritance) and a right of conscience for Church of England clergy (who are normally obliged to marry any two eligible people by law). Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'; courts are allowed to disclose an individual's trans status; employers are allowed to exclude trans people as a 'genuine occupational requirement'; and organisations are allowed to exclude trans people as 'a proportionate means of achieving a legitimate aim'.
The Gender Recognition Act 2004 aimed to safeguard the privacy of transsexual people by defining information in relation to the gender recognition process as protected information. Anyone who acquires that information in an official capacity may be breaking the law if they disclosed it without the subject's consent. However, in the first seven years of operation, birth certificates drawn from the Gender Recognition Register were immediately distinguishable from a natal birth certificate, since they had only nine columns of information, omitting the item 'Signature, description and residence of informant' that appears on birth certificates. These Gender Recognition Certificates also replaced the rubric 'Certified to be a true copy of an entry in the certified copy of a Register of Births in the District above mentioned', which appears on birth certificates, with the rubric 'Certified to be a true copy of a record in the custody of the Registrar General'. These issues were corrected by the Gender Recognition Register (Amendment) Regulations 2011.
People present evidence to a Gender Recognition Panel, which considers their case and issues a Gender Recognition Certificate. The evidence must show a documented mental health diagnosis of gender dysphoria, even though being trans has not been a mental illness in the UK since 2002. If the person involved is in a legally recognised marriage, they require spousal consent for the certificate to be issued, after which a new marriage certificate can be issued; if the spouse does not consent, the person will be issued an Interim Gender Recognition Certificate, which for a limited period can then be used as grounds for annulment of the marriage, but otherwise has no status. A person currently in a civil partnership must dissolve it and/or marry, since UK law currently only recognises same sex civil partnerships.
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 Gender Recognition Certificate can be used wherever a birth certificate is used, such as for issue of a passport. The natal birth certificate showing the previous legal gender continues to exist, and will carry no indication that there is an associated Gender Recognition 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 Gender Recognition Act makes no provision for non-binary trans people, instead requiring a binary movement between masculine and feminine genders.
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, being a trans woman, was legally male. This argument was accepted by the judge, and the legal test for gender in the UK had been since been based on the judgement in Corbett v Corbett; 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 Goodwin & I v United Kingdom  2 FCR 577, that a trans person's inability to change the gender on their birth certificate was a breach of their rights under Article 8 and Article 12 of the European Convention on Human Rights. Following this judgement, the UK Government had to introduce new legislation to comply.
The bill 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 Peter Selby, Bishop of Worcester, and Michael Scott-Joynt, 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.
In 2016, the Women and Equalities Committee published a root-and-branch review of the Gender Recognition Act, noting its deficiencies and making recommendations for its review. At the same time, it noted similar deficiencies in the Equality Act (2010) as it affected the protected characteristic of Gender Identity.
In November 2017, the Scottish government published its review of the GRA with intentions to reform it "so that it is in line with international best practice." The "Ministerial Foreword" to the review acknowledges that the 2004 GRA is "out of date" and places "intrusive and onerous" requirements on the person applying for the gender change. The government recommends keeping the existing requirements for applicants to declare that "they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives" but proposes eliminating the requirement "to provide medical evidence and to have lived in their acquired gender for two years before applying."
Concerns regarding marriages and civil partnerships
This section needs to be updated.(November 2013)
Concerns about the act have been raised by supporters of transsexual rights, particularly regarding marriages and civil partnerships. The act required people who are married to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate but this is to change with effect from 10 December 2014, from which date a gender recognition certificate may be granted while still in an existing marriage. In both England and Wales, and Scotland, such an application from a married person will require written consent from the spouse - the so-called spousal veto. However, applicants in Scotland benefit from a workaround, where it is possible for applicants in Scotland to apply to the sheriff court to have their interim GRC replaced with a full GRC, bypassing the "spousal veto". Some parliamentarians, such as Evan Harris, viewed the original 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 transgender 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 can then make arrangements with the local registrar to have the civil partnership ceremony. 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. This is also true for civil partnerships that includes a transgender partner, which the existing civil partnership must be dissolved and the couple can enter into a marriage afterward. For a couple in a marriage or civil partnership where both partners are transgender, they can have their gender recognition applications considered at the same time, however they are required to dissolve their existing marriage/civil partnership and then re-register their marriage/civil partnership with their new genders.
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
“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”.
- Transgender rights in the United Kingdom
- LGBT rights in the United Kingdom
- Corbett v Corbett
- Legal aspects of transsexualism
- List of transgender-related topics
- Feminist views on transgender topics
This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. (September 2008) (Learn how and when to remove this template message)
- The citation of this Act by this short title is authorised by section 29 of this Act.
- The General Guide for all Users, Gender Recognition Act 2004
- Gender Recognition Act 2004
- Example of a Gender Recognition Certificate Archived 6 January 2009 at the Wayback Machine.
- Greene, Hannah; Phillips, Nicole (29 May 2018). "The legal process for gender recognition". FamilyLaw. LexisNexis. Retrieved 31 May 2018.
- Example of an Interim Gender Recognition Certificate Archived 6 January 2009 at the Wayback Machine.
- "Gender Recognition Bill: House of Commons Second Reading". The Public Whip. My Society. Archived from the original on 3 February 2010. Retrieved 2 February 2010.
- "Gender Recognition Bill". The Public Whip. My Society. 30 April 2005. Archived from the original on 3 February 2010. Retrieved 3 February 2010.
- Cowley, Philip; Mark Stuart (19 November 2004). "Mapping Conservative Divisions Under Michael Howard" (PDF). Revolts.co.uk. Archived from the original (PDF) on 3 February 2010. Retrieved 2010-02-03.
- "Gender Recognition Bill: House of Commons Second Reading". Press For Change. Archived from the original on 2 February 2010. Retrieved 2010-02-02.
- Women and Equalities Committee (2016). Transgender Equality: First Report of Session 2015-2016. House of Commons.
- "Review of the Gender Recognition Act 2004 (9 Nov 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
- "Ministerial Foreword to the Review of the Gender Recognition Act 2004 (4 November 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
- Till Political Convenience Do Us Part; Christine Burns 
- See the Honourable Dr. Harris, House of Commons Standing Committee A, 9 March 2004, Col 60. - https://publications.parliament.uk/pa/cm200304/cmstand/a/st040309/pm/40309s09.htm
- The Honourable Hugh Bayley, House of Commons 2nd Reading 23 February 2004, Col. 60; the Honourable Andrew Selous, House of Commons 2nd Reading 23 February 2004, Col. 64
- The Honourable David Lammy, House of Commons Standing Committee A, 9 March 2004, Col. 69. It was suggested in the debates that the number of transgender people who have undertaken gender reassignment and who are currently living in a marriage was no more than 200.(the Honourable Mr. Oaten, House of Commons 2nd Reading 23 February 2004, Col. 69)
- Levy, Andrew (1 May 2008). "Transsexual husband annuls marriage and enters into civil partnership with wife to keep pension benefits". Mail Online. Associated Newspapers Ltd. Retrieved 2008-09-06.
- Fracassini, Camillo (30 October 2005). "Sex-change couple seek marriage recognition". Times Online. London. Retrieved 2008-09-07.
- Submission on the United Kingdom's sixth periodic report under the International Covenant on Civil and Political Rights Archived 2 October 2008 at the Wayback Machine.