The Gender Recognition Act 2004 is an
act of the
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
that allows people who have
gender dysphoria to change their
legal gender
Legal gender, or legal sex, is a sex or gender that is recognized under the law. Biological sex, sex reassignment and gender identity are used to determine legal gender. The details vary by jurisdiction.
History
In European societies, Roma ...
. It came into effect on 4 April 2005.
Operation of the law
The Gender Recognition Act 2004 enables
people to apply to receive a Gender Recognition Certificate (GRC). A Gender Recognition Certificate is the document issued that shows that a person has satisfied the criteria for legal recognition in the acquired gender. The act gives people with
gender dysphoria legal recognition as members of the sex appropriate to their
gender identity
Gender identity is the personal sense of one's own gender. Gender identity can correlate with a person's assigned sex or can differ from it. In most individuals, the various biological determinants of sex are congruent, and consistent with the ...
allowing them to acquire a Gender Recognition Certificate. People whose birth was registered in the United Kingdom or abroad with the British authorities are able to obtain a
birth certificate
A birth certificate is a vital record that documents the birth of a person. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensui ...
showing their recognised legal sex. People granted a full GRC are from the date of issue, considered in the eyes of the law to be of their "acquired gender" in most situations. Two main exceptions to trans people's legal recognition are that the descent of
peerages will remain unchanged (important only for primogeniture inheritance) and a right of conscience for
Church of England
The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britai ...
clergy (who are normally obliged to marry any two eligible people by law).
Prior to the issuing of a Gender Recognition Certificate employers are able to exclude trans people as a "genuine occupational requirement", and organisations are allowed to exclude trans people from single sex or separate sex services as "a proportionate means of achieving a legitimate aim". A GRC changes an individuals legal sex "for all purposes" and exclusion would be deemed sex discrimination as defined by Section 14 of the Act.
The Gender Recognition Act 2004 aimed to safeguard the privacy of transgender people by defining information in relation to the gender recognition process as protected information. Anyone who acquires that information in an official capacity may be breaking the law if they disclosed it without the subject's consent. However, in the first seven years of operation, birth certificates drawn from the Gender Recognition Register were immediately distinguishable from a natal birth certificate, since they had only nine columns of information, omitting the item "Signature, description and residence of informant" that appears on birth certificates. These Gender Recognition Certificates also replaced the rubric "Certified to be a true copy of an entry in the certified copy of a Register of Births in the District above mentioned", which appears on birth certificates, with the rubric "Certified to be a true copy of a record in the custody of the Registrar General". These issues were corrected by the Gender Recognition Register (Amendment) Regulations 2011.
A
Gender Recognition Panel, including medical and legal experts, considers evidence submitted to it to assess whether the criteria for issuing a Gender Recognition Certificate have been met. The evidence must show a documented mental health diagnosis of gender dysphoria. If the person involved is in a legally recognised marriage, they require spousal consent for the certificate to be issued, after which a new marriage certificate can be issued;
if the spouse does not consent, the person will be issued an Interim Gender Recognition Certificate, which for a limited period can then be used as grounds for annulment of the marriage, but otherwise has no status.
Section 16 provides that acquiring a new gender under the act does not affect the
descent of peerages or estates that devolve with them.
Background
The act was drafted in response to court rulings from the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
.
The previous precedent dated back to 1970, when
Arthur Cameron Corbett, 3rd Baron Rowallan
Captain (British Army and Royal Marines), Captain Arthur Cameron Corbett, 3rd Baron Rowallan (17 December 1919 – 24 June 1993), was a British nobility, British aristocrat most notable for successfully having his second marriage annulment, ann ...
had his marriage annulled on the basis that his wife,
April Ashley
April Ashley (29 April 1935 – 27 December 2021) was an English model. She was outed as a transgender woman by ''The Sunday People'' newspaper in 1961 and is one of the earliest British people known to have had sex reassignment surgery. Her ...
, being
transgender
A transgender (often abbreviated as trans) person is someone whose gender identity or gender expression does not correspond with their sex assigned at birth. Many transgender people experience dysphoria, which they seek to alleviate through ...
, was legally male. This argument was accepted by the judge, and the legal test for sex in the UK had been since been based on the judgement in ''
Corbett v Corbett
''Corbett v Corbett (otherwise Ashley)'' is a 1970 family law divorce case heard between November and December 1969 by the High Court of England and Wales in which Arthur Corbett sought annulment of his marriage to April Ashley. Corbett (the h ...
''; it had even led to the curiosity of a legal
marriage between two lesbians since one had been born male.
The
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
ruled on 11 July 2002, in ''
Goodwin & I v United Kingdom
''Christine Goodwin v. United Kingdom'' is a case decided by the European Court of Human Rights on 11 July 2002. The applicant, Christine Goodwin, a United Kingdom national born in 1937, was a trans woman. She claimed that she had problems and fac ...
''
0022 FCR 577, that a trans person's inability to change the sex on their birth certificate was a breach of their rights under
Article 8 and
Article 12 of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
. Following this judgement, the UK Government had to introduce new legislation to comply.
Legislative progress
The
bill
Bill(s) may refer to:
Common meanings
* Banknote, paper cash (especially in the United States)
* Bill (law), a proposed law put before a legislature
* Invoice, commercial document issued by a seller to a buyer
* Bill, a bird or animal's beak
Plac ...
was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10 February 2004, with 155 votes in favour and 57 against. The
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
passed it on 25 May. It received
Royal Assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
on 1 July 2004.
The bill faced criticism in the House of Lords, including a
wrecking amendment
In legislative debate, a wrecking amendment (also called a poison pill amendment or killer amendment) is an amendment made by a legislator who disagrees with the principles of a bill and who seeks to make it useless (by moving amendments to either ...
from
Lord Tebbit
Norman Beresford Tebbit, Baron Tebbit (born 29 March 1931) is a British politician. A member of the Conservative Party, he served in the Cabinet from 1981 to 1987 as Secretary of State for Employment (1981–1983), Secretary of State for Trad ...
(who has described sex reassignment surgery as "mutilation"), and from
Baroness O'Cathain, who introduced an amendment to allow religious groups to exclude transgender people. However, this amendment was narrowly defeated after opposition from
Peter Selby
Peter may refer to:
People
* List of people named Peter, a list of people and fictional characters with the given name
* Peter (given name)
** Saint Peter (died 60s), apostle of Jesus, leader of the early Christian Church
* Peter (surname), a su ...
,
Bishop of Worcester, and
Michael Scott-Joynt,
Bishop of Winchester.
Support for the bill in the House of Commons was split broadly down party lines. At both the second and third readings (i.e. before and after amendments), all
Labour Party,
Liberal Democrat
Several political parties from around the world have been called the Liberal Democratic Party or Liberal Democrats. These parties usually follow a liberal democratic ideology.
Active parties
Former parties
See also
*Liberal democracy
*Lib ...
,
Plaid Cymru
Plaid Cymru ( ; ; officially Plaid Cymru – the Party of Wales, often referred to simply as Plaid) is a centre-left to left-wing, Welsh nationalist political party in Wales, committed to Welsh independence from the United Kingdom.
Plaid wa ...
and
Scottish National Party votes were in favour of the bill; all
Ulster Unionist
The Ulster Unionist Party (UUP) is a unionist political party in Northern Ireland. The party was founded in 1905, emerging from the Irish Unionist Alliance in Ulster. Under Edward Carson, it led unionist opposition to the Irish Home Rule movem ...
and
Democratic Unionist Party votes were against.
Conservative Party MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote.
25 Conservative MPs voted in favour and 22 against the bill at its second reading, and 20 voted in favour and 39 voted against the bill at its third reading. Less than half of the Conservative Party's 166 MPs participated in either vote.
Among those who voted against the bill were
Ann Widdecombe
Ann Noreen Widdecombe (born 4 October 1947) is a British politician, author and television personality. She was Member of Parliament (MP) for Maidstone and The Weald, and the former Maidstone constituency, from 1987 to 2010 and Member of the ...
(who opposed it on religious grounds),
Dominic Grieve
Dominic Charles Roberts Grieve (born 24 May 1956) is a British barrister and former politician who served as Shadow Home Secretary from 2008 to 2009 and Attorney General for England and Wales from 2010 to 2014. He served as the Member of Parl ...
,
Peter Lilley
Peter Bruce Lilley, Baron Lilley, PC (born 23 August 1943) is a British politician and life peer who served as a cabinet minister in the governments of Margaret Thatcher and John Major. A member of the Conservative Party, he was Member of Parl ...
and
Andrew Robathan
Andrew Robert George Robathan, Baron Robathan, (born 17 July 1951) is a British Conservative politician, who served as Member of Parliament (MP) for South Leicestershire (previously Blaby) in Leicestershire as well as a government minister.
...
. Among Conservative MPs who supported the bill were
Kenneth Clarke
Kenneth Harry Clarke, Baron Clarke of Nottingham, (born 2 July 1940), often known as Ken Clarke, is a British politician who served as Home Secretary from 1992 to 1993 and Chancellor of the Exchequer from 1993 to 1997 as well as serving as de ...
, Constitutional Affairs spokesman
Tim Boswell
Timothy Eric Boswell, Baron Boswell of Aynho (born 2 December 1942) is a British politician who was formerly the Conservative Member of Parliament (MP) for Daventry from 1987 until he stood down at the 2010 general election, after which he was ...
, and future speaker
John Bercow
John Simon Bercow (; born 19 January 1963) is a British former politician who was Speaker of the House of Commons from 2009 to 2019, and Member of Parliament (MP) for Buckingham between 1997 and 2019. A member of the Conservative Party prior t ...
.
Updates
In 2016, the Women and Equalities Committee published a root-and-branch review of the Gender Recognition Act, noting its deficiencies and making recommendations for its review. At the same time, it noted similar deficiencies in the
Equality Act (2010) as it affected the protected characteristic of gender reassignment.
In November 2017, the Scottish government published its review of the GRA with intentions to reform it "so that it is in line with international best practice." The "Ministerial Foreword" to the review acknowledges that the 2004 GRA is "out of date" and places "intrusive and onerous" requirements on the person applying for the gender change. The government recommends keeping the existing requirements for applicants to declare that "they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives" but proposes eliminating the requirement "to provide medical evidence and to have lived in their acquired gender for two years before applying."
In 2017, Minister for Equalities
Justine Greening
Justine Greening (born 30 April 1969) is a British politician who served as Secretary of State for Education from 2016 to 2018. Prior to that, she served as Economic Secretary to the Treasury from 2010 to 2011, Secretary of State for Transport ...
considered reforms to the Gender Recognition Act to de-medicalise the process, with the principle of self-identification. One of Greening's successors,
Penny Mordaunt
Penelope Mary Mordaunt (; born 4 March 1973) is a British politician who has been Leader of the House of Commons and Lord President of the Council since September 2022. A member of the Conservative Party, she has been Member of Parliament (MP) ...
, affirmed that the consultation on the Gender Recognition Act would come from the starting place that "transgender women are women".
In a June 2020 report, the European Commission classified the legal procedures for gender recognition of 28 European countries into 5 categories based on the barriers to access. This placed the Gender Recognition Act 2004 in the second from bottom category with "intrusive medical requirements" that lags behind international human rights standards.
In September 2020, the UK government published the results of the public consultation which showed wide support for all aspects of reform, including 64% in favour of removing the requirement for a diagnosis of
gender dysphoria and 80% in favour of removing the requirement for a medical report. However, the UK government decided not to change the current law, which was described as "a missed opportunity" by the
Equality and Human Rights Commission.
Concerns regarding marriages and civil partnerships
Concerns about the act were raised by supporters of transgender rights, particularly regarding marriages and civil partnerships. Due to marriage being restricted in UK law to opposite-sex couples and the lack of availability of
civil partnership
A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
s to opposite-sex couples, the act required people who are married to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate. This requirement was abolished in December 2014, nine months after the
Marriage (Same Sex Couples) Act 2013
The Marriage (Same Sex Couples) Act 2013 (c. 30) is an Act of the Parliament of the United Kingdom which introduced same-sex marriage in England and Wales.
Background
Civil partnerships were introduced in the United Kingdom in 2004, allowin ...
permitted same-sex marriages. In both England and Wales and Scotland, such an application from a married person requires written consent from the spouse – the so-called spousal veto. However, applicants in Scotland benefit from a workaround, where it is possible for applicants in Scotland to apply to the sheriff court to have their interim GRC replaced with a full GRC, bypassing the "spousal veto". Some parliamentarians, such as
Evan Harris
Evan Leslie Harris (born 21 October 1965) is a British Liberal Democrat politician. He was the Member of Parliament (MP) for Oxford West and Abingdon from 1997 to 2010, losing his seat in the 2010 general election by 176 votes to Conservative ...
, viewed the original requirement as inhumane and destructive of the family. MP
Hugh Bayley said in the Commons debate "I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced". Despite this opposition, the government chose to retain this requirement of the Bill. Parliamentary Under-Secretary for Constitutional Affairs,
David Lammy, speaking for the Government, said "it is the Government's firm view that we cannot allow a small category of same-sex marriages". It was suggested in the debates that the number of
transgender
A transgender (often abbreviated as trans) person is someone whose gender identity or gender expression does not correspond with their sex assigned at birth. Many transgender people experience dysphoria, which they seek to alleviate through ...
people who have undertaken gender reassignment and who are currently living in a marriage was no more than 200.
Although the
Civil Partnership Act 2004
The Civil Partnership Act 2004 (c 33) is an Act of the Parliament of the United Kingdom, introduced by the Labour government, which grants civil partnerships in the United Kingdom the rights and responsibilities very similar to those in civil ...
allows the creation of civil partnerships between same sex couples, before 2013, a married couple that included a transgender partner could simply re-register their new status. They had to have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs. Once the annulment was declared final and the GRC issued, the couple could then make arrangements with the local registrar to have the civil partnership ceremony. The marriage was ended and a completely new arrangement brought into being which did not in all circumstances (such as wills) necessarily follow on seamlessly. This is also true for civil partnerships that included a transgender partner: the existing civil partnership needed to be dissolved and the couple could then enter into a marriage afterward. For a couple in a marriage or civil partnership where both partners are transgender, they could have their gender recognition applications considered at the same time; however, they were required to dissolve their existing marriage/civil partnership and then re-register their marriage/civil partnership with their new genders.
Tamara Wilding of the
Beaumont Society pressure group said that it was "not fair that people in this situation should have to annul their marriage and then enter a civil partnership. The law needs tidying up. It would be easy to put an amendment in the civil partnership law to allow people who have gone through gender-reassignment, and want that to be recognised, to have the status of their relationship continued." The emotional stress caused is immeasurable as in the case of a Scottish couple.
The
Equality and Human Rights Commission (EHRC) appreciated the challenges to married transgender people and their partners presented by schedule 2 of the act and in a recent submission to government they recommend:
The government amends the Gender Recognition Act to allow for the automatic conversion of a marriage into a civil partnership upon one member of the couple obtaining a gender recognition certificate.
Post-2013
These concerns were ameliorated somewhat by the passage of the
Marriage (Same Sex Couples) Act 2013
The Marriage (Same Sex Couples) Act 2013 (c. 30) is an Act of the Parliament of the United Kingdom which introduced same-sex marriage in England and Wales.
Background
Civil partnerships were introduced in the United Kingdom in 2004, allowin ...
, since marriage is now available to both opposite-sex and same-sex couples alike. Under the current law, when a married couple includes a transgender person, the marriage may continue if the transgender person's spouse consents to the marriage continuing. This has been described, and opposed, by transgender activists as a "spousal veto" on their legal transition. In 2019, the
Liberal Democrats included the removal of the "spousal veto" as part of their manifesto.
Baroness Barker
Baron is a rank of nobility or title of honour, often hereditary, in various European countries, either current or historical. The female equivalent is baroness. Typically, the title denotes an aristocrat who ranks higher than a lord or knig ...
introduced a private member's bill to amend the law in 2019.
Reform Bill in Scotland
In March 2022, the Gender Recognition Reform (Scotland) Bill was formally introduced in the
Scottish Parliament. If enacted, this bill would amend the Gender Recognition Act and change the process of applying for a GRC. Under the changes, applicants would no longer need to prove having lived for two years in their acquired gender or obtain a
gender dysphoria diagnosis. Instead, they would be required to make a statutory declaration that they intend to remain permanently in their acquired gender. In addition, applications would be handled by the
Registrar General for Scotland
The General Register Office for Scotland (GROS) ( gd, Oifis Choitcheann a' Chlàraidh na h-Alba) was a non-ministerial directorate of the Scottish Government that administered the registration of births, deaths, marriages, divorces and adopti ...
instead of a UK-wide
gender recognition panel. The
UK Government
ga, Rialtas a Shoilse gd, Riaghaltas a Mhòrachd
, image = HM Government logo.svg
, image_size = 220px
, image2 = Royal Coat of Arms of the United Kingdom (HM Government).svg
, image_size2 = 180px
, caption = Royal Arms
, date_est ...
has ruled out implementing similar changes in England and Wales. The bill passed by a vote of 86-39 within the Scottish Parliament on stage three in December 2022. The bill awaits
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
, a formality. The UK government is potentially challenging the legislation.
See also
*
Transgender rights in the United Kingdom
Transgender rights in the United Kingdom have varied significantly over time, with the British transgender community facing ongoing challenges not experienced by cisgender Britons. These include various laws and public attitudes in regards to ide ...
*
LGBT rights in the United Kingdom
The rights of lesbian, gay, bisexual, and transgender (LGBT) people in the United Kingdom of Great Britain and Northern Ireland have varied over time.
Prior to the formal introduction of Christianity in Britain in 597 AD, when Augustine of Ca ...
*
Transgender rights movement
The transgender rights movement is a movement to promote the legal status of transgender people and to eliminate discrimination and violence against transgender people regarding housing, employment, public accommodations, education, and health ...
*
Outline of transgender topics
The following outline offers an overview and guide to transgender topics.
The term "transgender" is multi-faceted and complex, especially where consensual and precise definitions have not yet been reached. While often the best way to find out h ...
*
Feminist views on transgender topics
References
External links
Gender Recognition ActGender Recognition Panel Certificate Information
{{Transgender topics
United Kingdom Acts of Parliament 2004
Transgender law in the United Kingdom
LGBT law in the United Kingdom
2004 in LGBT history