Carpenter v The Secretary of State for Justice

The requirement under Gender Recognition Act 2004, section 3(3), to provide details of treatment for modifying sexual characteristics is compatible with Article 8. The information is relevant to the statutory criteria and is necessary and proportionate to the legitimate aim of ensuring that gender recognition certificates are granted only, and whenever, they should be granted. The requirement does not impose a greater evidential burden on applicants who have undergone treatment. Nor does it discriminate on grounds of sex, since the same requirements apply irrespective of the applicant’s biological sex.

The applicant, a post-operative male-to-female transsexual person who had obtained a gender recognition certificate, sought a declaration that section 3(3) of the Gender Recognition Act 2004 was incompatible with the Convention rights protected by the Human Rights Act 1998.

She argued that the compulsory provision of details of treatment for modifying sexual characteristics unjustifiably interfered with Article 8, discriminated against post-operative transsexual persons contrary to Article 14 read with Article 8, and discriminated on grounds of sex. The Secretary of State disputed incompatibility and raised a late objection to justiciability.

1. Justiciability. The court was entitled to examine whether the statutory criteria imposed unjustifiable restrictions on recognition of acquired gender. The state’s freedom to determine the conditions for recognition did not make the compatibility of those conditions non-justiciable. The approach in MB v SS for Work and Pensions [2014] EWCA Civ 1112 applied.
2. Article 8. Article 8 was engaged by an application for a gender recognition certificate and by the requirement to provide medical reports. The state was entitled to establish criteria for granting certificates. The applicant accepted the legitimacy of ensuring that certificates were granted only, and whenever, they should be granted.
3. Read as a whole, section 3 provided the mechanism for placing before the Panel all evidence relevant to the criteria in section 2(1). Where treatment had been undergone, was being undergone, or was planned or prescribed, it was highly relevant, and potentially central, to the assessment of gender dysphoria and the applicant’s intention to live in the acquired gender. Requiring the report to identify the procedures did not require disclosure of an applicant’s entire medical history or intimate surgical detail.
4. The information was supplied to a small, independent Panel and was protected from wider disclosure. In those circumstances, the requirement in section 3(3) was necessary and proportionate to the legitimate aim. There was no incompatibility with Article 8.
5. Article 14. Being a post-operative transsexual person could constitute “other status”, but the alleged evidential distinction was not established. Applicants who had and had not undergone treatment were required to provide two medical reports; the additional details requirement applied to treatment generally, including hormone treatment, and did not make certification more difficult for post-operative applicants.
6. The sex-discrimination claim also failed. Section 3 imposed the same evidential requirements on applicants irrespective of biological sex. The application was dismissed.