Legal Recognition

One of the most important battles for the Trans community in the UK has been for individuals to be legally recognised in their lived gender. While recent media focus has sensationalised this, the truth is simpler: without that recognition, combined with some protection in law, trans people are at constant risk of being outed, in circumstances that may range from embarrassing to outright dangerous.

At the same time, trans people were regularly denied access to services and benefits that non-trans people took for granted. From marriage to pension entitlement to being buried in your identified gender: none of these were permitted.

And the fact of that denial was often catalyst to giving away the gender of someone who had been living “in stealth” for many years to friends, neighbours and workmates. Employers, too.

There were plenty of instances where a simple document check in respect of driving license or pension entitlement would lead first to an individual being outed and then, not long after, to them finding themselves mysteriously out of work.

The journey to recognition

It may surprise many to learn that for a long time, UK law did not make quite such a song and dance about legal gender as it does now. Your gender, for practical purposes, was the gender marked on your birth certificate. However, throughout the 50s and 60s, many of those tasked with maintaining the birth registry were quite open to amending registration and issuing a new birth certificate in an individuals correct gender.

A diminution of rights

All that changed with the case of trans model, April Ashley. In November 1960, Ashley met Arthur Corbett, (who later became Baron Rowallan). They married in 1963, but the marriage was short-lived. In 1967, Ashley’s lawyers wrote to Corbett asking for maintenance payments. Corbett responded by filing suit to have the marriage annulled – on the grounds that Ashley was male and therefore could never have been properly married.

In 1970 a court agreed, and the marriage was annulled. The judge ruled that ‘gender’, and the legal status it entailed, could change. But ‘sex’ was “fixed at birth” and could “not be changed by medical or surgical means”. And ‘sex’ was what counted when it came to marriage.

However, the case had far wider ramifications for trans individuals, as henceforth they would be considered legally to possess their birth gender, and treated accordingly.

Challenges

Over the next three decades, a number of challenges were launched against the law as it now stood, with ever increasing frequency.

Gender is a Human Right: key cases

The first challenge to this new legal orthodoxy came from trans man, Mark Rees.

Rees transitioned successfully in the early 70s. However, he was unhappy that when he applied for documents such as a passport he was required to identify as a man. When seeking work at a university, he was required to present a passport that similarly identified him as male. He therefore sought to have his birth certificate officially amended.

After a lengthy journey through the English courts, Rees ended up before the European Court of Human Rights (ECHR) in 1986 arguing two breaches of his Human Rights, under articles 8 and 12.

The ECHR decided, by 12 votes to 3, that no breach had occurred. This decision owed much to the fact that the UK claimed this as an area where discretion on action was reserved to the UK parliament – and therefore the UK parliament must pass detailed laws to change the position. For now, therefore, it would keep the matter under review.

The next significant case before the ECHR, in 1990, was that of trans woman and international model, Caroline Cossey. For Cossey, the spur to action was not documentation, but a more basic desire: to marry. And this, following the Ashley ruling was a door firmly closed

Once more, the ECHR reviewed the issue: once more, it ruled that no Human Rights breach had occurred. Despite this, the consensus was clearly shifting, with Cossey losing her case by 10 votes to 8 in respect of private life, and by 14 votes to 4 in respect of the right to marry.

Dissenting opinion came from Judge Martens, who cited strong grounds for overruling the Rees verdict These included changes to the law on trans people in countries such as Sweden, Germany and Italy. Citing an opinion from the Ashley case, he observed:

 

“refusal to reclassify the sex of a post-operative transsexual seems inconsistent with the principles of a society which expresses concern for the privacy and dignity of its citizens”.

The winds of change, gathering pace in 1990, were rising to storm force in 1998 when the ECHR heard the cases of two trans women, Kristina Sheffield & Rachel Horsham, who both cited significant social disadvantage arising from their inability to amend their birth certificates.

 Once more, the court ruled in favour of the UK Government (by large margins in respect of articles 12 and 14). But on article 8, right to family life, it won by a whisker: 11 votes to 9.

As trans campaigner, Christine Burns observed at the time, legal victory was also political defeat for the UK. The ECHR criticised the UK’s failure to do anything to keep its laws under review – as it had previously advised – given increasing social recognition of trans people and the difficulties they encounter as direct result of failure of the state to recognise their gender legally.

Burns wrote:

 

“The court may have been numerically divided on the finer legal point of whether Kristina and Rachel’s cases brought any new facts to the table .

“… but it is as clear as day that no opportunity was spared to present us with as much POLITICAL ammunition as possible. The main judgement is VERY critical of the British government’s failure to do what it was instructed to do as long ago as 1990.”

An avalanche of legal challenge

From the 1990s onward, the pace hotted up, with more and more cases finding their way before the ECHR. The news was not all bad for the UK Government: but it was losing enough casesfor its treatment of trans issues to be becoming a national embarrassment

A further serious source of litigation was in the area of pensions.

In 1999, the case of KB v NHS Trust Pension Agency highlighted another iniquity stemming from inability to amend birth gender. In this case, the challenge came from a trans man (RB) in a long term relationship with a cis woman (KB). Despite being together for many years, they could not marry because RB remained legally a woman.

In addition to the interference in family life created, this also created a pension anomaly. Because if they could marry, RB would have been entitled to half of KB’s remaining pension. Whereas unmarried, he was entitled to nothing.

This case was brought on the grounds that the UK was in breach of the Treaty of Rome Art.119 and the Equal Pay Directive. RB and KB may have lost: but yet again, the ECHR was alerted to unjust treatment of trans folk as a direct result of refusal to recognise their gender.

In 2003, there was the Bellinger case. Trans woman Elizabeth Bellinger was happily married to husband Michael. They wanted their marriage declared legally valid. But the House of Lords (then the UK’s highest court in the UK) refused, stating this was a matter for parliament, not the courts.

At around the same time there was the case of trans woman Adrienne Nash. She took on the Department of Work & Pensions (DWP) over her entitlement to a pension at 60 (the age at which women could then retire). As to be expected, the DWP resisted.

Less honourable, in every sense, were efforts made by the DWP to prevent Nash (and others in the same situation) from creating any pension entitlement for themselves. For change was in the air and subsequent case law shows that individuals in this position would have been able to claim back pension had they put in a claim before the law changed.

Yet the DWP went out of its way to dissuade individuals from putting in such claims. At least, that seems to be the only explanation for the energy devoted to persuading individuals NOT to claim, going so far even as to visit peoples homes and tell them not to apply for pension.

Just how unprincipled this action by the DWP was can be understood from the fact that following yet another loss and rebuke from the ECHR, the Government was now committed to changing the law.

Breakthrough at last

The case that finally made the difference was that of trans woman, Christine Goodwin. Goodwin argued that existing law created multiple injustices. She was not eligible to draw a pension at age 60. She did not feel able to do things which required her to present a birth certificate: so she was unable to obtain the winter fuel allowance. She decided not to report the fact that £200 had been stolen from her, because this would mean disclosing her birth gender.

The European Court’s patience was exhausted: the UK had done nothing to rescue trans people from the ambiguous state in which they found themselves. Declaring that this issue no longer fell within the area of state discretion, they found the UK had violated Goodwin’s right to respect for her private life.

The Government of the day finally agreed to act and the result, after much discussion, was the Gender Recognition Act of 2004.

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