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Chambers & Partners
18/05/2021

Recognition by the Northern Ireland High Court of a Shift in Gender Recognition – Robin Moira White

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NI Judicial Review ‘JR111’ [2021] NIQB 48

A judicial review case in Northern Ireland, in which judgment was handed down on 14 May 2021, has significant implications for the process by which transgender people to have their affirmed gender recognised in the UK and also marks a step along the journey towards normalising the position of those with complex gender identities in society.

The case concerned a Northern Irish trans woman in Northern Ireland (known, for the purposes of the case as ‘JR111’) who has been receiving medical assistance, including counselling and hormone therapy, since 1996 but has not yet had gender confirmation surgery or been granted a Gender Recognition Certificate (‘GRC’) despite having lived as a woman for some years.  She brought a wide application for judicial review including complaints aspects of healthcare provision for transgender people in Northern Ireland but the NI High Court have chosen to deal first with her claims that aspects of the Gender Recognition Act 2004 (‘GRA’) were incompatible with the European Convention on Human Rights (‘ECtHR’) particularly Articles 8 (Right to respect for private and family life) and 14 (Protection from discrimination) in:

  • requiring a medical diagnosis at all, and
  • challenging what that diagnosis needs to be,

before a Gender Recognition Certificate GRC is granted.

Section 2 of the GRA lists a series of conditions which have to be satisfied by evidence before a person can be granted a GRC, after which (with some exceptions) their acquired gender is recognised ‘for all purposes’.  Sub-section 2(a) set that as the first condition that the applicant:

‘has or has had gender dysphoria,…’

Gender dysphoria, literally ‘discomfort with gender’ has been the diagnosis applied with transgender persons for many years but in recent times thinking, particularly medical thinking, has shifted away from regarding a complex gender identity as a disorder and the International Standard Classification of Diseases and Related Health Problems 11th edition (‘ICD-11) published in 2018, approved in 2019 and formally taking effect from January 2022 but already in widespread use replaced ‘gender dysphoria’ with ‘gender incongruence’ and moved it out of the “Mental Health and Behavioural Disorders” chapter and into the new “Conditions related to sexual heath” chapter.  The ICD is published by the World Health Organisation, a United Nations body.  Some psychiatrists refer to the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.  The fifth edition, (‘DSM-5’) published in 2013 replaced ‘gender identity disorder’ with ‘gender dysphoria’.  It had been thought that a change away from a medicalised gender recognition process would be reflected in reform of the GRA, promised by the Theresa May government but abandoned by the Johnson government in 2020.  This has left the courts to deal with the problem of the shifting medical understanding.

In the NI High Court, Scoffield J, considered in particular the European Court of Human Rights case of AP, Garcon and Nicot v France (2017) App 79885/12 in which it was held that the requirement to demonstrate gender identity disorder by way of medical examination was found not to be a violation of Article 8, and the UK case of Carpenter v Secretary of State for Justice [2015] EWHC 464 (Admin); [2015] 1 WLR 4111 in which it was held that the requirement to provide details of gender reassignment surgery the applicant had undergone was not a breach of Articles 8 or 14 despite the fact that a person who had not undergone such surgery could still obtain a GRC and would not have to provide such details.

An interesting feature of the present case was that it resulted in partially redacted aspects of the UK government policy discussions on potential reform of the GRA being disclosed in proceedings, including material from the Government Equality Office (‘GEO’) and the government’s LGBT Advisor, Dr Michael Brady.  Significant passages included:

  • the GEO characterizing the use of ‘disorder’ as “a very out of date notion”.
  • The GEO stating that “gender incongruence is a term already known and used by the NHS”, and
  • changing the terminology used in the GRA from gender dysphoria to gender incongruence is largely symbolic and will not interfere with existing clinical processes.”

These revelations have proved controversial with it being reported in the press that Equalities Minister Liz Truss is now claiming that the decision not to move away from a medicalised gender recognition process had been on the advice of LGBT adviser Dr Brady,  However, Dr Brady then took to Twitter to vehemently refute that version of events.

The NI High Court rejected the applicant’s submission that to require a medical diagnosis at all was itself a breach of the European Convention on Human Rights.  In particular, the judge found that this requirement was within the ‘margin of appreciation’ for Council of Europe member states.  It was a safeguard for the individual and for society more generally.  Scoffield J commented that the process of gender change should only be embarked upon advisedly and with proper reflection.  The judge noted the concerns expressed during the recent government consultation about the possible effects on vulnerable women of too-easy self-identification.

However, the judge accepted the applicant’s submission that it was no longer necessary to prove that the applicant for a GRC has, or have had, a “disorder”.  The judge in particular relied on:

  • the ICD and DSM classifications clearly and purposefully moving away from the relevant diagnoses being a ‘mental disorder’, in particular the change to ICD-11 which post-dates the AP, Garcon
  • The UK government’s public-facing documents saying that a ‘disorder’ is no longer required. See in particular the statements from the GEO.
  • the government not relying on moral or religious grounds to resist the change.
  • a position statement from the Royal College of Psychiatrists from March 2018 which stated that the ICD and DSM “should, at the earliest opportunity, de-classify and terms they use to describe transgender as a mental health disorder.”

Scoffield J quoted with approval the following passage by Thirlwell J in Carpenter (para 5):

“Gender dysphoria occurs when a person experiences discomfort or distress as a result of the mismatch between his or her biological sex and the gender with which they identify.  Until recently in was considered a psychiatric disorder.  The current approach has moved away from characterising it as a disorder and towards a description of its characteristics.”

He also quoted the summary of responses to the consultation on reform of the GRA published by the government in September 2020.  The summary derived from answers to Question 3 retained substantial support for a diagnosis being retained but in a manner which moved away from mental illness.

It is to be seen whether the case is appealed.

I believe that the judgment has both a narrow and a more broad effect.

The narrow effect is that now, clearly, a diagnosis of ‘gender incongruence’ will be as effective as a diagnosis of ‘gender dysporia’ in founding an application for a GRC.  I believe the Gender Recognition Panel should issue a practice direction, and the GRA should be amended by secondary legislation at an early opportunity.

The broad effect, is that the position of transgender citizens is following the path trodden ahead of them by, for example, homosexual citizens, who were regarded, historically, as having some form of mental illness (and, horrifically’ being subject to ‘treatments’ designed to ‘cure’ them).

Understanding is now growing that being transgender is not something to be ‘cured’ or an ideology but rather just another aspect of an individual’s make up, to be accepted and celebrated as part of a diverse and exciting world.

Robin Moira White
Old Square Chambers

Robin is joint author with Nicola Newbegin of ‘A Practical Guide to Transgender Law’ due to be published by Law Brief Publishing in the next few days.

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