AB v Gender Recognition Panel

On an appeal under Gender Recognition Act 2004, a Gender Recognition Panel must assess the whole body of relevant evidence when deciding whether an applicant has lived in the acquired gender. Medical evidence is required to establish gender dysphoria, but whether a person is living in the acquired gender is a question for the Panel, determined on all the evidence. The Panel must not treat absence of surgery or medical treatment as inconsistent with recognition, or elevate particular wording in a medical report without considering its context. Where concerns about evidence could be addressed by further information or a hearing, fairness may require the Panel to use its statutory powers. On an appeal, the court may itself determine the application and consider relevant admissible evidence at the rehearing stage.

The appellant, a transgender woman, appealed against the Gender Recognition Panel’s refusal on 11 October 2022 of her application for a gender recognition certificate under the Gender Recognition Act 2004. The Panel accepted that she had gender dysphoria but was not satisfied that she had lived in the acquired female gender for the required two years or that the evidential requirements had been met. It criticised medical reports, the use of the term non-binary, the absence of further medical evidence, foreign-language documents, and uncertainty concerning marital status.

The appeal concerned whether the Panel had erred in law, failed to consider relevant evidence, and acted unfairly by refusing the application without seeking further evidence or holding a hearing. The court also had to decide whether to remit the application or determine it itself.

1. Appeal allowed. The Panel’s decision was set aside and the court directed that a gender recognition certificate confirming the appellant’s female gender be issued.
2. Under Gender Recognition Act 2004, ss 1(1)(a), 2(1) and 3, the Panel must distinguish between diagnosis of gender dysphoria and the factual question whether the applicant is living in the acquired gender. Medical reports must contain the required diagnostic details, but the question of living in the acquired gender must be determined from the totality of the evidence.
3. The Panel erred by treating the term non-binary in one medical report as undermining the application without considering the report as a whole, which described a stable feminine identity and a congruent social role. The absence of surgery or continuing medical treatment was not itself inconsistent with entitlement.
4. The Panel failed to consider material evidence, including passports, deed polls, bank records, bilingual Dutch documents and the appellant’s statutory declaration. Its conclusion that there was very little evidence that she was living as female was unsustainable.
5. The Panel also wrongly concluded that a further Medical Report B was required. Two reports from registered medical practitioners practising in the field of gender dysphoria satisfied, and exceeded, the requirements of s 3(1)(a).
6. The refusal was procedurally unfair. The Panel identified matters requiring clarification but did not consider its powers under s 3(6)(c) to request further evidence or under Sch 1, para 6(4) to convene a hearing. The applicant was acting in person and had been described as vulnerable.
7. Although appellate courts should respect specialist panels and approach appeals with caution, the court could determine the application itself under s 8(3)(a). At the rehearing stage, the court was entitled to consider admissible and relevant evidence that could have been placed before the Panel if the matter had been remitted.
8. On the totality of the evidence, the statutory conditions were satisfied. The appellant had gender dysphoria, had lived in the female gender throughout the relevant period, intended to continue doing so until death, and complied with the evidential requirements.

• Gender Recognition Panel: On 11 October 2022, refused the appellant’s application for a gender recognition certificate.
• High Court (Family Division): On 18 June 2024, allowed the appeal, set aside the Panel’s decision and directed that the certificate be issued.