JR111 Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] NIQB 48 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 18 May 2021 |
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Neutral Citation No: [2021] NIQB 48
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11509
ICOS No: 20/032488/01
Delivered: 13/05/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY JR111
FOR JUDICIAL REVIEW
___________
Karen Quinlivan QC and Mr Steven McQuitty (instructed by Phoenix Law, Solicitors) for
the applicant
Tony McGleenan QC and Gordon Anthony (instructed by the Crown Solicitor’s Office)
for the respondent
___________
SCOFFIELD J
Introduction
[1] “The Government’s view is clear: being trans is not a mental illness. It is simply a
fact of everyday life and human diversity.” So said the Government in paragraph 2 of its
July 2018 consultation paper, ‘Reform of the Gender Recognition Act.’
[2] Why then, in order to secure a gender recognition certificate under the Gender
Recognition Act 2004 (‘the 2004 Act’), is a transgender person still required to show,
amongst other things, that they have or have had “gender dysphoria”, defined by the
Act as “the disorder variously referred to as gender dysphoria, gender identity disorder and
transsexualism”? That is the issue with which these proceedings are concerned. More
particularly, is the requirement in the 2004 Act that an applicant for such a certificate
provide a diagnosis of gender dysphoria by means of specified medical evidence
compatible with this applicant’s Convention rights?
[3] The applicant is a transgender woman who wishes to be granted a gender
recognition certificate (“GRC”) under the 2004 Act but who has experienced
difficulties, detailed further below, in doing so. She has been granted anonymity by
order of McAlinden J in light of the sensitive and personal nature of some of the
evidence relied upon in these proceedings and in recognition of the fact that an
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application for a GRC, the process underlying this application for judicial review, is
private (see paragraph 6(3) of Schedule 1 to, and section 22 of, the 2004 Act).
[4] The applicant was represented by Ms Quinlivan QC, who appeared with
Mr McQuitty, of counsel; and the respondent was represented by Mr McGleenan QC,
who appeared with Mr Anthony, of counsel. I am grateful to all counsel for their
helpful written and oral submissions.
Factual background
[5] The applicant describes herself as a trans woman. In 1994 she joined an
organisation established as a support network for transgender people and their
families, when she had questions about her gender. Her mental health was poor at
that time and she was “most distressed” about the feelings she was having. A friend
told her about a doctor in London who was helping people with gender issues and
she attended privately with this doctor, who provided her with hormone medication.
The applicant describes continuing her transition from 1994 and changing her name
by deed poll in 1999. She has lived as a trans woman since that time. The applicant’s
evidence is that since childhood, and as early as being in primary school, she knew
she was “not the right gender.” By 1994, she felt suicidal and felt forced to do
something to preserve her sanity. She has “lived with an overwhelming and persistent
desire to live in/as the gender that I know is my true gender, as a woman.”
[6] Around 1996, the applicant’s GP referred her to a specialist who was the lead
clinician within the Gender Clinic which was, at that time, part of the Department of
Psychiatry in Belfast City Hospital. The applicant says that progress at the clinic was
painfully slow and that, after around five years of being assessed at the clinic, she
was eventually legally prescribed hormones. Another specialist, Dr Ingram, later
took over the applicant’s treatment but little changed in her treatment plan.
[7] Frustrated at what she considered to be the lack of adequate progress, the
applicant learned that there was a walk-in clinic in Dublin which was free; so she
sought to be transferred there between 2012 and 2014, and was treated there by
Professor Donal O’Shea. The applicant’s evidence is that again, for a variety of
reasons, progress was slow but Professor O’Shea recommended that she could have
gender reassignment surgery. The applicant says that the relevant Trust in
Northern Ireland refused to fund this surgery, indicating that she would have to
have received treatment from, and been referred for the surgery by, the Gender
Clinic in Belfast in order to qualify. The applicant discussed this with her GP and
signed a consent form to return to treatment at the Brackenburn Clinic in Belfast in
2015. Further assessments occurred and she received various treatments such as
hormone treatment, laser hair removal and speech therapy.
[8] More recently, the Lead Therapist at the Brackenburn Clinic has confirmed
that the applicant’s mental state and gender identity have been stable for a number of
years. However, the applicant has nonetheless reached an impasse in terms of
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gender reassignment surgery because she has not lost sufficient weight to be
considered for surgery. The applicant is currently making progress in this regard
and continues to work towards her goal of undergoing such surgery.
[9] As to obtaining a GRC, the applicant believes herself to fulfil all of the
requirements for the grant of such a certificate, save for (what she describes as) “the
necessary paperwork which must be provided by a specialist doctor or psychologist.” The
applicant says that she raised the issue of obtaining a GRC with the therapist treating
her at the Brackenburn Clinic back in 2017 and that the therapist had advised the
applicant that she would get a GRC eventually but not to worry at this stage, as there
was a lot of work involved with it.
[10] There are two practical difficulties raised by the applicant as to her obtaining
the medical evidence required in order to satisfy the statutory criteria for the issue of
a GRC: (1) finding experts who can provide it; and (2) paying for the repo rts. As to
the first of these, the applicant’s evidence is that there are no specialists currently
practising in Northern Ireland in the field of gender dysphoria who can provide the
first specialist report required. As to the second issue, the applicant is in receipt of
Employment and Support Allowance and has been in receipt of benefits for
approximately 10 years. She has provided the court with some additional
information as to her financial circumstances but contends, in short, that she could
not afford to pay to obtain a private medical report, nor for travel and
accommodation to be assessed by a specialist outside Northern Ireland. In light of
the limited nature of the issue being determined at this stage (see paragraph [18]
below), I need not enquire too closely into these evidential issues for the moment.
[11] However, the Belfast Health and Social Care Trust’s response to
correspondence from the applicant’s solicitor suggests that the decision of the
Gender Recognition Panel as to whether or not to grant a GRC is a legal, and not a
medical, process. As a result, the Trust appears to have determined that the
provision of the required specialist report (which must contain a diagnosis of gender
dysphoria) is non-NHS work. The applicant was therefore advised that she would
have to source her own specialist in private practice.
[12] The applicant avers to her belief that, previously, expert reports for this
purpose would have been provided under the NHS and without cost to the patient.
The applicant further contends that there are no specialists now practising in
Northern Ireland who can provide the necessary first report, since the relevant
practitioners in this field have recently retired. The Trust correspondence addressing
this advises her that “none of the practitioners in the Belfast Gender Clinic currently
undertake private practice”; and the Trust was “not able to advise further on alternative
sources.” Furthermore, the List of Specialists in the Field of Gender Dysphoria
published by HM Courts & Tribunals Service to assist applicants for a GRC to
identify a specialist names three such specialists with contact details in
Northern Ireland, two of whom are noted to be retired. The third, Dr Ingram, has
not provided such a report for a number of years and he “plans to have his name
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In the matter of an application by JR111 for Judicial Review (Ruling on Remedy)
...by the Crown Solicitor’s Office) for the respondent ___________ SCOFFIELD J [1] In my substantive judgment in the above proceedings ([2021] NIQB 48), alongside which this brief ruling on remedy should be read, I concluded that the applicant succeeded in her claim against the Government Equa......