Jay v Secretary of State for Justice

The Gender Recognition Act 2004 establishes a permissive scheme. Where the statutory criteria are satisfied, a Gender Recognition Panel must grant a certificate. Evidential directions are ancillary and must not displace or frustrate the statutory criteria. A panel must consider all material evidence, including evidence supplied in substantial compliance with its directions. Where credibility is material, the panel must consider whether a hearing is necessary. On a statutory appeal, the court may admit subsequent evidence under the principles in Ladd v Marshall and may itself issue a certificate where the criteria are satisfied. Procedural hurdles should not unnecessarily prolong the period during which an applicant lacks legal recognition of the acquired gender.

The appellant had made three unsuccessful applications for a gender recognition certificate under the Gender Recognition Act 2004. The Gender Recognition Panel required further medical, documentary and personal information and ultimately refused the third application, principally because it doubted the reliability of the medical evidence and considered that the appellant had not complied with its directions.

On appeal under section 8, the appellant argued that the Panel had failed to apply the statutory criteria, relied on irrelevant or incorrect matters, and unlawfully interfered with her Convention rights. Further medical evidence became available after the Panel’s decision. The central issues were whether the refusal process was legally deficient and whether the High Court could consider the later evidence and issue the certificate.

1. Appeal allowed. The Panel had focused excessively on compliance with its directions and had failed to stand back and determine whether the statutory criteria in section 2(1) were satisfied. The statutory regime is permissive: if the criteria are met, the Panel must grant the application.

2. The requirements in section 3 and directions under section 3(6)(c) are evidential and ancillary. They must assist determination of the section 2(1) criteria and must not be elevated so as to sideline or frustrate the statutory process. The Panel was required to consider all material evidence, including information supplied in response to its directions, and failed to consider whether substantial compliance made a further letter unnecessary.

3. The Panel relied on its assertion that Dr Pasterski was unaware of significant matters without identifying those matters or explaining their relevance. It also relied on an old report by Dr Barrett without addressing its age, purpose, alleged inaccuracies or the need to give the appellant and Dr Pasterski an opportunity to respond.

4. Where credibility concerns may affect the decision, Schedule 1 paragraph 6(4) requires the Panel to consider whether a hearing is necessary. The Panel had not shown that it had considered a hearing, despite concerns about credibility and the appellant’s difficulties as a prisoner.

5. The article 8 and 14 grounds were not determined because the appeal succeeded on the first two grounds and the human-rights issues had not been fully argued.

6. The later reports from Dr Cosmulescu were admissible under the principles in Ladd v Marshall. Section 8 does not confer a full merits appeal, but the limitation to a point of law does not prevent the court considering fresh evidence when deciding the appropriate disposal. The court is under the same obligation as the Panel to issue a certificate where the statutory criteria are satisfied.

7. On the evidence, including the later reports, the criteria in section 2(1)(a) to (c) were satisfied. The High Court therefore allowed the appeal and issued the gender recognition certificate under section 8(3)(a).

High Court (Family Division): The appellant appealed under section 8 of the Gender Recognition Act 2004 against the Gender Recognition Panel’s refusal of her third application. The appeal was allowed and the High Court issued the gender recognition certificate.