Gender Recognition: Catch-22?

There was only one catch… Catch-22… a concern for one’s own safety… was the process of a rational mind. [He] was crazy and could be grounded. All he had to do was ask, and as soon as he did, he would, he would no longer be crazy…
Joseph Heller, Catch-22

The High Court in Belfast recently considered whether a mental disorder was condition precedent to the issue of a gender recognition certificate (GRC).

On the one hand “The Government’s view is clear: being trans is not a mental illness. It is simply a fact of everyday life and human diversity.” On the other, the Gender Recognition Act 2004 requires a transgender person to evidence “gender dysphoria” to get a GRC. Gender dysphoria is a “disorder” under the Act.  

Background

The applicant, who identifies as a trans woman, changing her name by deed poll in 1999 having previously been referred by her GP to the Gender Clinic at Belfast City Hospital. After five years of assessment, she was eventually prescribed hormones.   

Frustrated by the lack of progress, the applicant transferred to a free clinic in Dublin in 2012 where it was eventually recommended that she could have gender reassignment surgery. 

The applicant was then advised that the Trust in Northern Ireland would not fund her surgery unless the referral came from their Gender Clinic, and so she returned to their care in 2015. 

More recently, they confirmed that although the applicant’s mental state and gender identity remained stable, she has not yet lost sufficient weight to be considered for surgery.  

In any event, the requirement to evidence a “disorder” remained condition precedent to a GRC.  

Judgment

Mr Justice Scoffield held that although the requirement that the applicant provides medical evidence in support of her application was proportionate the specific requirement to evidence a “disorder” was unnecessary and unjustified. The legislation was incompatible with the applicant’s rights under the European Convention on Human Rights. 

The applicant succeeds in her claim insofar as the 2004 Act imposes a requirement… that she prove herself to be suffering or to have suffered from a “disorder” in order to secure a gender recognition certificate… that specific requirement is now unnecessary and unjustified, particularly in light of diagnostic developments.

Comment 

There was no telling what people might find out once they felt free to ask whatever questions they wanted to.
Joseph Heller, Catch-22

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