W v Gender Recognition Panel

The Gender Recognition Act 2004 is a permissive and humane statute. The requirement to live in the acquired gender must be interpreted purposively and by reference to the whole evidential canvas of the applicant’s life.

Childbearing and reproductive circumstances are always relevant to assessing whether an applicant has made a genuine and enduring adoption of the acquired gender. They are not, however, determinative. Pregnancy cannot be treated as fundamentally inconsistent with a trans man living in the male gender, or as an indirect sterility requirement. The Panel must assess all relevant evidence and give no single factor determinative weight unless the statute requires it.

The appellant, a trans man, appealed under Gender Recognition Act 2004, s 8, against the Gender Recognition Panel’s refusal to issue a gender recognition certificate. The Panel accepted the diagnosis of gender dysphoria but concluded that the appellant had not lived in the male gender throughout the relevant period and did not intend to do so until death. Its reasoning relied principally on his efforts to conceive and carry a child.

The Panel had invited further evidence and offered an oral hearing. The appellant attended a remote hearing and gave detailed evidence, but the differently constituted Panel later proceeded on the mistaken basis that he had not taken up the opportunity. The issues were whether the Panel’s decision was legally flawed and whether, on the evidence, the statutory conditions were satisfied.

1. The appeal was allowed and a gender recognition certificate was granted. The Panel’s decision was legally defective because it failed to consider the appellant’s oral evidence, despite that evidence having been invited and provided. The error was fundamental and not merely procedural. The judge therefore considered the matter afresh rather than remitting it.
2. The relevant statutory questions were whether the appellant had lived in the acquired male gender for the required period and intended to continue doing so until death. The phrase “living in the acquired gender” has no statutory definition and required a purposive interpretation consistent with the permissive structure and humane purpose of the Gender Recognition Act 2004.
3. The Panel was required to consider the broad canvas of available and relevant evidence. Medical evidence formed part of that canvas but did not determine whether the applicant was living in the acquired gender. Relevant matters could include physical or physiological features, the way the applicant conducted their life, documentary evidence and future intentions. Stereotypical assumptions about activities or behaviour were inappropriate.
4. Childbearing and associated reproductive issues were always relevant to the assessment of a genuine and enduring adoption of the acquired gender. They were not inherently incompatible with living as a man and could not lawfully be elevated into a determinative requirement. Treating pregnancy as fundamentally inconsistent with being male would produce absurdity and inconsistency, since other biological functions, such as menstruation, would not necessarily prevent recognition.
5. The statutory scheme did not impose a medical-transition or sterilisation requirement. A trans man could satisfy the living-in-the-acquired-gender condition while remaining physiologically female and retaining the capacity to conceive. An interpretation requiring abandonment of the choice to conceive would substantially interfere with Article 8 rights and conflict with the statutory purpose.
6. On the evidence, the appellant had lived in the male gender and intended to continue doing so. His settled male identity and his desire to have children were powerful but reconcilable aspects of his life. Requiring him to abandon either would frustrate the purpose of the statutory scheme.

• High Court (Family Division): appeal under Gender Recognition Act 2004, s 8, allowed. The Panel’s refusal was set aside and the certificate was granted.