FA-2025-000058 - [2025] EWHC 2685 (Fam)

The Gender Recognition Act 2004 (“GRA 2004”)

In order to give context to the difficult issues that fall to be considered in this appeal, it is necessary to say something of the provenance and scope of the Gender Recognition Act 2004 (“GRA 2004”), which is the legal framework for decision-taking in this sphere. The enactment of the GRA 2004 was the UK’s response to the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (Application No 28957/95) (2002) 35 EHRR 18 (“Goodwin”) and following a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 (“Bellinger”). In Goodwin, the Applicant’s biological sex was male, but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the Applicant’s right to respect for private life, pursuant to Article 8 of the Convention, for there to be no legal recognition of her acquired gender. The ECtHR described the Applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital.

The Court referred to various difficulties faced by the Applicant arising from the failure of the law to recognise her acquired gender. These included her inability to change her birth certificate, and different treatment as regards social security, national insurance issues, pensions and employment. The Court recognised that it had previously held that the UK law did not interfere with respect for private life (para 73). But in the light of the then social conditions, it reassessed the appropriate application of the Convention.

The ECtHR regarded it as highly significant that the National Health Service recognised the condition of ‘gender dysphoria’ and provided reassignment surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Despite this, there was no legal recognition of her changed status in law. The Court discussed medical evidence about the causes of what, in that period, was called “transsexualism” and noted that most Contracting States, including the UK, provided treatment, including irreversible surgery. Explicitly, the ECtHR noted, “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role”, it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment” (para 81). Thus, what was identified was a disagreeable situation in which post-operative transgender people were left in an intermediate zone between one gender and another. The ECtHR considered that was no longer sustainable.

The Goodwin judgment was considered by the House of Lords in Bellinger (supra). Their Lordships were invited to declare a marriage valid which had been entered into by a man and a trans woman. Their Lordships declined to do so on the basis that it would represent a major change in the law which required wide public consultation and debate. A change of such magnitude, it was considered, was pre-eminently a matter for Parliament and not for the Courts. In any event, the Government had already announced a firm intention to introduce comprehensive primary legislation. The intention was realised with the enactment of the GRA 2004, which came into force on 4^th April 2005.

The main provisions of the GRA 2004:

provide for applications to be made for a GRC, for the criteria to be applied and the evidence to be provided: Sections 1, 2 and 3;

established a Gender Recognition Panel to determine those applications and provided for appeals from decisions of the Panel: Section 1(3) and Schedule 1;

provide for the consequences of the issue of a GRC, including the creation and maintenance of the Gender Recognition Register, described in Schedule 3;

provide for a prohibition on disclosure of protected information about a person who has made an application: Section 22; and

provided for limited amendments to the Sex Discrimination Act 1975.

The key provisions of the GRA 2004, for the purpose of this appeal, are as follows:

Section 1 provides:

A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of –

living in the other gender…

In this Act “the acquired gender”, in relation to a person by whom an application under subsection (1) is or has been made, means –

in the case of an application under paragraph (a) of that subsection, the gender in which the person is living…

An application under subsection (1) is to be determined by a Gender Recognition Panel.”

Section 2 provides:

In the case of an application under section 1(1)(a), the Panel must grant the application if satisfied that the applicant –

has or has had gender dysphoria,

has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

intends to continue to live in the acquired gender until death, and

complies with the requirements imposed by and under section 3…”

(my emphasis)

Section 3 provides:

An application under section 1(1)(a) must include either –

a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or

a report made by a registered psychologist practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field)

…

An application under section 1(1)(a) must also include a statutory declaration by the applicant that the applicant meets the conditions in section 2(1)(b) and (c)

…

Any application under section 1(1) must include –

a statutory declaration as to whether or not the applicant is married [or a civil partner],

any other information or evidence required by an order made by the Secretary of State, and

any other information or evidence which the Panel which is to determine the application may require, and may include any other information or evidence which the applicant wishes to include

...

If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so.”

Pursuant to Section 4(1):

“If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant.”

When considering the statutory requirements in Section 2(1)(b) and (c), the Panel is required to survey the broad canvas of the available evidence. Sir Andrew McFarlane (P) emphasised this in AB v Gender Recognition Panel [2025] 1 WLR 227 (“AB”):

The statutory basis for the grant of a gender recognition certificate is that the applicant is ‘living in the other gender’ [s 1(1)(a)]. By s 2(1)(a) the Panel ‘must grant the application’ if satisfied that the applicant has, or has had gender dysphoria and ‘has lived’ in the acquired gender for the past two years (and intends so to live for the rest of their lives). In addition the evidential requirements of s 3 must be complied with. In order to be satisfied that an applicant has lived, and will continue to ‘live’ in the acquired gender, a Panel must take account of all of the available and relevant evidence. The medical evidence required by s 3 from a registered doctor or psychologist practising in the field of gender dysphoria must include ‘details of the diagnosis of the applicant’s gender dysphoria’. Whilst information in any medical report will sit alongside all of the other evidence in the case which must be considered on the question of whether the applicant has been ‘living in the other gender’ [s 1(1)(a)], that issue, in contrast to the diagnosis of gender dysphoria, is not to be determined by considering the medical evidence alone.”

It follows from the above that it is not for the medical witness to ‘diagnose’ whether an Applicant is ‘living in the other gender’. That was a decision for the Panel in which “the medical report will sit alongside all of the other evidence in the case”. The President continued:

At paragraph 7 of the decision letter, the Panel states: ‘Even if [Dr Longworth’s] reports are accepted as confirmation of gender dysphoria for the purposes of the Gender Recognition Act 2004, they are far from providing a firm diagnosis’ [emphasis added]. That statement is at odds with the clear conclusions of both Dr Longworth and Dr Lorimer, who were both clear that the appellant was suffering from gender dysphoria and that was their diagnosis. It is not the role of the medical witness to go further and to ‘diagnose’ whether or not an individual is ‘living in the other gender’, that is a matter of fact for the Panel on the basis of the totality of the evidence.(my emphasis) Whilst what is said in a medical report may detract from a finding that a person is living in one gender or another, that is not a matter for medical diagnosis as the Panel’s statement appears to suggest.”

Pursuant to Section 9(1):

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).”

Under Section 12:

“The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.”

I signal, for reasons that I shall turn to, that I consider this provision to be a significant one in the context of this application.

Section 8 of the GRA 2004 is a gateway to appeal. It provides that:

An applicant to a Gender Recognition Panel under section 1(1) ... may appeal to the High Court or Court of Session on a point of law against a decision by the Panel to reject the application.

An appeal under subsection (1) must be heard in private if the applicant so requests.”

Transparency

I am satisfied that this appeal raises a point of law, as required by Section 8 above. This is not controversial: see Jay v Secretary of State for Justice [2019] Fam 87; AB (supra); Distinctive Properties (Ascot) Limited v Secretary of State for Communities and Local Government [2015] EWHC 729. I was, however, surprised to see that Section 8(2) appears to devolve to the Appellant the decision as to whether this Court sits in private. This raised a preliminary issue. Protecting the privacy of the Appellant, where appropriate and when they wish it to be so, is self-evidently important (Article 8 ECHR). The issues in these cases generally, and certainly in this one are, however, of legitimate public interest and as such, in my view, require weight to be given to the freedom of the press (Article 10). Each of these Articles qualifies the right it propounds so far as may be lawful, necessary, and proportionate. The exercise involved was described by Sir Mark Potter (P) as “one of parallel analysis in which the starting point is presumptive parity”, see A Local Authority v W and others [2005] EWHC 1564 (Fam); Re: S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591.

The Family Court now operates on the presumption that a Transparency Order will be permitted in every case, unless there is a legitimate reason not to do so. The scope of this is that journalists and legal bloggers can report on what they witness in Court, request documents, etc. The names of the parties, however, are frequently anonymised because of the nature of the cases the Family Court hears. Ms Sarathy, Counsel on behalf of the Appellant, agreed that we should interpret ‘private’ (Section 8(2)) in this way, having regard to the principles of transparency, which are now ubiquitous in the Family Court. Accordingly, the press has been present.