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Gender Recognition Act 2004

The Gender Recognition Act 2004 is an Act of the British Parliament which allows transsexual people (as well as some intersex and genderqueer people) to change their legal gender. It went into effect on the 4th of April 2005 and, through a citation of the Westminster Act, affects all areas of the United Kingdom.

Operation of the law

The Act gives legal recognition to transsexual people in the United Kingdom, and will allow them to acquire a document similar to a new birth certificate, and be able to marry, as well as afford them full recognition in all areas. The two main exceptions are a right of conscience for Church of England clergy (who are normally obliged to marry any two eligible people by law) if they suspect that one member of a couple may have a transsexual history, and that the descent of peerages will be left untouched.

Additionally, sports organisations are allowed to discriminate against transsexual people if it is necessary for ‘fair competition or the safety of the competitors’ and a person holding a Gender Recognition Certificate is still not provided protection against discrimination in the provision of goods, facilities and services on the grounds that they have undergone gender reassignment.

People present evidence to a Gender Recognition Panel, which considers their case and issues a Gender Recognition Certificate. If the person involved is in a legally-recognised marriage they will be issued an ‘Interim Gender Recognition Certificate’, which can then be used as grounds for divorce, but otherwise has no status. After the divorce, a full Certificate will be issued.

The Act requires applicants to have transitioned two years before a certificate is issued. There is no requirement for sex reassignment surgery to have taken place, although this will be taken into consideration. There was a six month period from 4th April 2005 until 3rd October 3 2005, where only people who transitioned six years ago may apply. Additionally, for two years, people who transitioned six years ago need to submit less evidence.

A Gender Recognition Certificate allows for an entry to be made in the Gender Recognition Register, if you have an existing UK Birth Register entry. A certified copy of the Gender Recognition Register entry is physically indistinguishable from a birth certificate, and will indicate the new legal gender and name. It can be used as proof of identity wherever a birth certificate is used, such as for issue of a passport. The birth register entry showing the previous legal gender continues to exist, but is no longer accessible. Certain authorised agencies, such as the Police, have access to the registers at a level showing the links between these entries, but the links will be invisible to the general public. This is the same way that adoption certificates work.

Legislative progress

The Act was drafted in response to court rulings from the European Court of Human Rights and House of Lords, saying that the law as it stood was a violation of the European Convention on Human Rights and the Human Rights Act 1998. The previous precedent dated back to 1970, when Arthur Cameron Corbett, 3rd Baron Rowallan had his marriage annulled on the basis of his wife, April Ashley, being a transsexual woman, was not recognized as such under then-current UK law. This argument was accepted by the judge, and the legal test for gender in the UK had been based on this judgement ever since; it had even led to the curiosity of a legal marriage between two lesbians since one had been born male. A series of cases based upon the judgment in Corbett followed, culminating in Bellinger v Bellinger (2003), in which the House of Lords declined to overturn Corbett, but did emphasise the need for broad-based legislative reform in this area.

The Bill was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10th February 2004, with 155 votes in favour and 57 against. The House of Commons passed it on 25th May. It received Royal Assent on 1st July 2004.

The Bill faced criticism in the House of Lords, including a wrecking amendment from Norman Tebbit (who has described sex reassignment surgery as “mutilation”), and from Detta O’Cathain, who introduced an amendment to allow religious groups to exclude transsexual people. However, this amendment was narrowly defeated after opposition from the Bishop of Worcester and the Bishop of Winchester.

In the first division on the Bill in the House of Commons, the vote was split broadly down party lines. All Labour Party, Liberal Democrats, Plaid Cymru and Scottish National Party votes were for, all Ulster Unionist, Democratic Unionist Party votes were against. The Conservative Party allowed a free vote, and the opposition spokesman Tim Boswell welcoming the Bill — however the vote was split with Conservative MPs like Ann Widdecombe and Andrew Selous strongly opposing the Bill on grounds of religious principle.

Some concerns were also raised about the Bill by supporters of transsexual rights. The requirement for a divorce before recognition was particularly criticised, as forcing people to choose between their marriage and their gender, though with the Civil Partnership Act 2004, civil partnerships will be available. There has been a suggestion that the two processes (of gender recognition and translating a marriage into a civil partnership) should be dovetailed; at the moment, however, the expense of divorce proceedings rests wholly on the divorcing couple. There have also been questions about the implications to civil liberties caused by the introduction of the transsexual persons register “for security reasons”. In addition to this, academic commentators have identified problems with the requirement that a diagnosis of a mental disorder is a prerequisite of gender recognition and its attendant rights.

See also

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