Carpenter v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMrs Justice Thirlwall
Judgment Date27 February 2015
Neutral Citation[2015] EWHC 464 (Admin)
Docket NumberCase No: CO/16949/2013
CourtQueen's Bench Division (Administrative Court)
Date27 February 2015

[2015] EWHC 464 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Thirlwall DBE

Case No: CO/16949/2013

Between:
Ms Helen Carpenter
Applicant
and
The Secretary of State for Justice
Defendant

Mr Rory Brown (instructed by Debevoise & Plimpton LLP) for the Applicant (both acting pro bono)

Mr Brendan McGurk (instructed by the Treasury Solicitor) for the Defendant

Hearing date: 15 th October 2014

Mrs Justice Thirlwall
1

In November 2011 the applicant obtained a Gender Recognition Certificate in accordance with the provisions of the Gender Recognition Act 2004. She is a post-operative male-to-female transsexual person. This is her application under Part 18 of the Family Procedural Rules 2010 for an order that:

"Section 3(3) of the Gender Recognition Act 2004 is incompatible with the rights in the European Convention of Human Rights as enshrined in the Human Rights Act 1998".

2

It is the Secretary of State's case that there is no incompatibility.

Procedural background

3

The applicant was born male in September 1950. On 12 th May 2011 she applied to the gender recognition panel for the grant of a Gender Recognition Certificate. She submitted medical reports from a psychiatrist and two other doctors. The Panel requested further information, in particular a report from a registered medical practitioner providing details of surgery and treatment she had undergone to change sexual characteristics. In due course a further report was provided by the surgeon. The applicant brought an appeal against what she said was the refusal of the Panel to grant a certificate. The appeal came before Mr Justice Holman on the 3 rd October 2012. It was rejected. Holman J concluded that the Panel had not at any stage rejected the application. Her appeal was dismissed.

4

In the meantime a certificate had been granted in November 2011. This freestanding application for a declaration of incompatibility was listed for hearing on 21 st November 2012. It was adjourned and eventually came before me on 15 th October 2014.

Gender dysphoria

5

Gender dysphoria occurs where a person experiences discomfort or distress as a result of a mismatch between his or her biological sex and the gender with which they identify. Until recently it was considered a psychiatric disorder. The current approach has moved away from categorising it as a disorder and towards a description of its characteristics. Many people who have gender dysphoria choose to live as a member of the sex with which they identify, namely the sex of their acquired gender. Most have counselling or other psychological therapies, usually to assist them in making the transition to living in their acquired gender. A very significant proportion undergo hormone treatment. Some undergo hormone treatment and radical surgery to align their physical and psychological features with their acquired gender. I was told that some people live in their acquired gender and undergo no treatment of any type.

Statutory framework

6

The Gender Recognition Act 2004 (GRA) permits a transsexual person aged at least 18 to apply for a Gender Recognition Certificate. The effect of the certificate is that the person's gender becomes for all purposes the acquired gender. Thus, if the acquired gender is the male gender, the person's gender becomes that of a man and, if it is the female gender, the person's gender becomes that of a woman (see S9 of the GRA).

7

The GRA was the UK government's response to findings against it in Goodwin v United Kingdom [2002] 25 EHRR 18. Mr McGurk produced for the hearing extracts from the debates from the House of Lords in respect of the GRA. Interesting though the debates are I could see no basis upon which their contents were admissible on this application.

8

Since its implementation the GRA has been considered by a number of domestic courts, the European Court of Human Rights and other bodies. In Grant v the United Kingdom a decision of the European Court of Human Rights in May 2006 (2007) 44 EHRR1 the applicant, born male, had gender reassignment surgery at the age of 26. When she was approaching her 60 th birthday she sought a state pension. This was refused on the grounds that she was, in law, male. At the time her case was before the domestic courts the GRA had not yet been enacted. By the time of the hearing in Strasbourg it was in force. Mr McGurk drew my attention to paragraphs 28–31 of the decision. At paragraph 30:

"the GRA 2004 has been adopted by parliament since the introduction of this application. It received Royal Assent on July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a gender recognition panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension are paid according to the acquired gender."

9

At paragraph 41, having considered the arguments in respect of the matters in issue, the court said "the present applicant's victim status came to an end when the GRA 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied".

10

The Act was considered by the United Nations Committee on Human Rights. Having considered a report submitted by the United Kingdom under Article 40 of the International Covenant on Civil and Political Rights, the committee welcomed "the adoption of the Civil Partnership Act 2004, the Gender Recognition Act 2004, the Equality Act 2006, and the Sex Discrimination (Amendment of Legislation) Regulations 2008. – see chapter 5 of the report. Mr McGurk relied on the approval given to the Act as support for his submission that there is no incompatibility between the GRA and the rights enshrined in the ECHR. He also relied on the decisions of the domestic courts where the GRA has been challenged. He submitted that it would be extremely surprising were the very Act which was designed to ensure the United Kingdom's compliance with Article 8 should, in fact, have achieved precisely the opposite effect.

11

Whilst the courts have given broad approval of the Act, as has the United Nations Committee, that approval does not preclude a closer analysis of the statute which might lead to a different result. Mr McGurk reminded me that the relevant Minister certified that the Act complied with the UK's duties under ECHR. That means that the government intended to comply and understood that it had done so. The question for me is whether Section 3(3) of the Act is compatible with the convention.

The Act

12

Section 1 reads, so far as is relevant,

Applications

1(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of –

(a) living in the other gender…

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

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

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

Section 2 reads:

Determination of applications

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

(a) has or has had gender dysphoria,

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

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

(d) complies with the requirements imposed by and under section 3…

(2) The Panel must reject an application under section 1(1) if not required by subsection ( 1) or (2) to grant it…

Section 3

Evidence

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

(a) 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

(b) 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).

(2) But subsection (1) is not complied with unless a report required by that subsection and made by—

(a) a registered medical practitioner, or

(b) a registered psychologist

practising in the field of gender dysphoria includes details of the diagnosis of the applicant's gender dysphoria.

(3) And subsection (1) is not complied with in a case where—

(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or

(b) treatment for that purpose has been prescribed or planned for the applicant,

unless at least one of the reports required by that subsection includes details of it.

(4) 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)

(6) Any application under section 1(1) must include…

(c) 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.

The Application

13

This application focuses on the requirement in section 3(3) that those who have undergone treatment for the purposes of modifying sexual characteristics or who plan...

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