Killian Flood BL

About this case:

• Citation:
  [2021] NIQB 48
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Scoffield

However, the court held that the general requirement for a diagnosis to be provided in support of a gender recognition application was fair and within the discretion of Parliament. In so ruling, the court applied well-established European case law such as AP, Garçon and Nicot v. France (2017) (App Nos 79885/12, 52471/13 and 52596/13).

Background

The applicant, who was anonymised by court order, brought judicial review proceedings against the Government Equalities Office (GEO), which was responsible for the 2004 Act. The applicant was a transgender woman who wished to be granted a Gender Recognition Certificate. She had not undergone any surgical procedures to change her gender. However, she had difficulties in obtaining the requisite medical reports for a diagnosis of body dysphoria, which were required under the 2004 Act.

The applicant claimed that the requirements of the 2004 Act breached her right to a private life under Article 8 of the ECHR. In particular, she claimed that the requirement for her to be diagnosed with gender dysphoria as defined under the Act was derogatory and offensive. She claimed that there was no obvious need for her to prove any medical diagnosis of gender incongruence to be granted a GRC, claiming that this was a purely legal procedure.

The applicant relied heavily on the policy and approach adopted by the current UK government to the issue. Since 2016, several actions taken by parliamentary and government bodies indicated that the medical aspect would be removed from the legislation. The Woman and Equalities Committee concluded that the “medical approach” to gender recognition was outdated. Further, it was said that “gender dysphoria” should be replaced with “gender incongruence” to reflect the fact that a transgender person was not suffering from a mental disorder.

Equally, a 2018 consultation paper from the government outlined that the current approach under the 2004 Act required change and that the medical report requirements should be removed. In April 2019, GEO officials recommended removing the medical aspect to the process. However, following a change in leadership in Downing Street, the proposed changes to the legislation were reduced to the mere swapping of terminology between gender dysphoria and gender incongruence. Finally, in July 2020, the government decided that it would keep the legislation as it stood.

In these circumstances, the applicant challenged all the provisions in the 2004 Act which mandated that a person must prove they have gender dysphoria to be granted a GRC.

High Court

Giving judgment in the case, Mr Justice David Scoffield accepted that the required diagnosis of a “disorder” was incompatible with the applicant’s rights under Article 8 of the Convention. However, the court refused to hold that the requirement for a medical diagnosis for a GRC was unfair to the applicant.

The court began by setting out the extensive factual history of the case and then turned to the case law. The court focused mostly on the AP, Garçon and Nicot case, which held that a requirement to demonstrate the existence of a gender identity disorder in order to secure legal gender recognition was not a violation of Article 8, nor was a requirement to undergo a medical examination. While the ECtHR accepted that Article 8 was engaged by the gender recognition process, it concluded that member states had to be afforded a wide margin of appreciation on the issue. In particular, it was noted that there was no consensus on the proper approach to gender recognition and medical reports were a common requirement 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 position was, the degree of involvement or intervention that was appropriate, and what degree of institutional respect attached to any relevant legislative choice. Further, it was held that a domestic court would be very cautious 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 these principles to the facts, the court held that a fair balance had been struck by Parliament in requiring a relevant diagnosis in support of a GRC application. The court said that the AP, Garcon and Nicol case left it to member states to determine the sensitive moral and ethical issues in GRC applications. Although there may be indications of a move away from requiring medical reports in other states, the court held that this was not an appropriate case to “forge ahead” of the ECtHR jurisprudence.

The court held that the 2004 Act struck a fair balance between the rights of the individual and the community as a whole. The requirement for medical reports provided appropriate safeguards for applicants and their interests. It was noted that changing a person’s gender was a significant and formal matter with potentially far-reaching consequences and it was not the court’s role to determine the best system for gender recognition.

However, the court held that the requirement of an applicant to prove they had a disorder was “an unnecessary affront to the dignity of a person” applying under a legal process. This was particularly so given that the government did not contend that a transgender person had a disorder at all, where “its public-facing documents say the opposite”.

The court said that the present legislation provided a problem for applicants, stating: “In order to assert their legal rights to gender recognition they must denigrate that aspect of their identity which the 2004 Act is in principle designed to vindicate.” Further, the government’s submission that the change in language (e.g. using the phrase “gender incongruence”) might cause confusion amongst practitioners was not satisfactory at all. Practitioners should be well able to manage a change in terminology and are expected to keep up to date with modern practices, the court said.

Conclusion

As such, the court held that the applicant failed in her claim that a diagnosis was a breach of her Article 8 rights. However, the court held that the requirement to prove that she was suffering from a “disorder” was unnecessary, unjustified and incompatible with the ECHR. The court held that it would hear further submissions from the parties regarding the appropriate remedy following the decision.