Ab v Gender Recognition Panel

18 June 2024. SIR ANDREW McFARLANE P handed down the following judgment of the court.

1 This is the judgment of the court (to which both members have contributed) determining an appeal against a decision, made by the Gender Recognition Panel (“GRP”) on 11 October 2022, refusing the appellant’s application for a gender recognition certificate under the Gender Recognition Act 2004 (“GRA 2004”). The appellant, a transgender woman, sought to challenge the GRP’s decision on the basis that the Panel erred in law in its conclusion that the appellant did not meet the statutory requirements for a gender recognition certificate on the evidence before it.

2 The appellant filed a notice of appeal on 25 November 2022. Following issues of service, the Secretary of State for Justice and the GRP were re-served with the notice of appeal on 28 December 2023 and 2 January 2024 respectively. Both indicated that they would not be participating in the appeal process.

3 The circumstances in which a person may appeal a decision of the GRP is prescribed by GRA 2004, section 8:

“8 Appeals etc

“(1) An applicant to a Gender Recognition Panel under section 1(1), 4A, 4C, 5(2), 5A(2) or 6(1) may appeal to the High Court, family court or Court of Session on a point of law against a decision by the Panel to reject the application.

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

“(3) On such an appeal the court must— (a) allow the appeal and issue the certificate applied for, (b) allow the appeal and refer the matter to the same or another Panel for reconsideration, or (c) dismiss the appeal.

“(4) If an application under section 1(1) is rejected, the applicant may not make another application before the end of the period of six months beginning with the date on which it is rejected.”

4 The appeal came before this court on 8 February 2024 and was heard in private in accordance with the appellant’s request under section 8(2). At an earlier hearing in June 2023, Lieven J, having heard submissions from pro bono counsel for the appellant, had adjourned the appeal to be heard by a Divisional Court and had invited the appointment of an advocate to the court. We are very grateful to Ms Sarah Hannett KC, who has taken on this latter role and whose submissions have been of great assistance in our deliberations. We apologise for delay in preparing this judgment.

5 The appellant was assigned to the male gender at birth and began her social transition as a transgender woman in 2011 at the age of 17. On 10 July 2012, the appellant changed her name for the first time by deed poll, adopting a female name. She commenced gender affirming care that same year by way of hormone replacement therapy and testosterone blockers. The appellant has taken these medications since, except for a brief period around 2017 when she ceased taking testosterone blockers to retain capacity for sexual activities. The appellant has not undergone, and does not wish to undergo, gender reassignment surgery. The law does not require her to do so in order to obtain a gender recognition certificate.

6 The appellant was diagnosed with Asperger’s syndrome in 2013. The relevance of this diagnosis is that it appears as part of the Panel’s reasoning when refusing a certificate and is therefore mentioned here by way of introduction. The appellant...