Rebecca Jones, Solicitor
The Gender Recognition Act 2004 received royal assent on the 2 July 2004. Prior to this, the estimated 5,000 transsexuals that live in this country have been in a state of limbo being afforded no legal status by the government to the gender that they were living in. The Act remedies this situation and establishes a mechanism for transsexuals to apply for legal recognition of that gender.
The Act will establish Gender Recognition Panels consisting of judicially trained legal and medical members. The panel will consider applications made by transsexuals.
An individual who is over the age of 18 will be able to make an application under s.1(1)(a) of the Act. They will have to demonstrate to the Gender Recognition Panel:
- That they have Gender Dysphoria (s.2(1)(a)), meaning that an individual has a deep conviction that their gender identity does not match their appearance and/or anatomy. The incongruity between identity and body can be so strong that individuals are driven to presenting themselves in the acquired (opposite) gender and;
- That they have been living for at least the last two years in their acquired gender (s.2(1)(b)) and;
- That they intend to live in that gender until death (s.2(1)(c)).
The evidence required to demonstrate the above is covered by s.3 of the Act. The application must include either two reports by registered medical practitioners, one of whom must be practising in the field of gender dysphoria OR one report by a chartered psychologist practising in gender dysphoria AND a report by a registered medical practitioner. The report that is supplied by either the registered medical practitioner or the chartered psychologist practising in the field of gender dysphoria must include details of the diagnosis of the applicant’s gender dysphoria (s.3 (2)).
The applicant must also provide a statutory declaration to the effect that they meet the conditions that have been set up by the Act under s.2. In it the applicant must state whether married or not (s.3(6)(a)). Under s.3(5) of the Act the applicants must also provide evidence of gender change under the law of an approved country or territory.
If an applicant is successful in their application and was unmarried then a Gender Recognition Certificate will be issued. If the applicant is married an Interim Gender Recognition Certificate will be issued.
If the applicant does receive an Interim Gender Recognition Certificate then this will have the effect of making the marriage voidable at the application to the Court by either party to the marriage. This is due to the fact England does not recognise marriages between individuals of the same sex. Either party to the marriage can therefore, after an interim certificate has been issued, make an application to court for the marriage to be annulled. This application must be made within 6 months of the issue of the interim certificate. Without this time limit an interim certificate could be used to annul a new marriage entered into in the future.
In order to comply with applications for annulment s.12 of the Matrimonial Causes Act 1973 has been amended to include a further ground on which a marriage, celebrated after 1971, can be voidable ( MCA s.12 (g)).
If the court grants an annulment then a full Gender Recognition Certificate will be issued at the same time.
All Gender Recognition certificates will be entered on to a general register. The register will not contain any information that would enable a transsexual to be located. Its purpose is to maintain a central record containing details about the date, place of birth and new names.
Once an individual has a full Gender Recognition certificate, this will afford them the right to:
- Marry in their acquired gender
If a person marries and is not aware at the time of the marriage that their partner was of the opposite gender at birth, they are able to seek an annulment of the marriage. The reason behind this provision is that it is expected that this is the type of personal discussions that would take place prior to marriage. - Obtain a birth certificate that recognises the acquired gender
An application can be made to the Registrar General for a new birth certificate in the new name and gender. The new birth certificate is created from a new record from the Gender Recognition Register. The new birth certificate will be indistinguishable from other birth certificates and will not refer to the Gender Recognition Register. - Acquire benefits and state pension just like anyone else of that gender.
The principle will be that state pensions and benefits will be paid according to the acquired gender.
As the Act has received royal assent and the panels are being constructed, it is anticipated that the first applications will be accepted by early 2005. Lord Filkin, formerly Minister at the Department for Constitutional Affairs, has stated that one of the features of the Act is its safeguards in relation to privacy. This is to enable the Act to attract as many applications as possible.
All other EU member states (except Ireland) give legal recognition to gender change, as do other countries in Europe, the commonwealth and certain American States.
Main aspects of the Act that will affect family lawyers
Where one of the parties to a marriage has received an Interim Gender Recognition certificate, either may apply within 6 months of its issue for an annulment of the marriage on the grounds that it is voidable. The court granting the annulment must also issue the full Gender Recognition Certificate.
If an individual marries someone and was unaware of a gender change they may apply to the court to annul the marriage.
It is also worth noting that a voidable marriage will revoke a previous will.
If we act for an individual who has been successful in an application for gender recognition or who is considering an application, they should be aware that they may obtain a new birth certificate showing their new name and gender.
The fact that a person's gender has become the acquired gender under the Act does not affect their parental status.
For further information contact a member of the Family & Divorce law team or call 020 7940 4000.
