WIN: Victory in landmark case on gender recognition

In a landmark decision for trans rights, the High Court has ruled that a panel acted unlawfully in denying a trans man a gender recognition certificate because he was trying to conceive.

In February, a gender recognition panel denied the man, whose identity is protected by an anonymity order and is referred to in the judgment as W, a gender recognition certificate. This was on the basis that he had been trying to conceive a child – concluding that this meant he was not living as a man.

With the support of Good Law Project, W challenged this decision in the High Court in July. The court has now concluded that there was abundant evidence that W was living as a man, and that requiring him to abandon either his male identity, or his desire to have a family, “would be to dismantle and fracture the person he is”. The judge held that this would run contrary to the direction of both domestic and European courts on trans human rights.

The court also found that the panel had been wrong to conclude that W had not taken up the offer of a remote hearing, when he had, in fact, attended. This was “fatal” to their decision to deny him a gender recognition certificate, the judge continued, and was not “a minor procedural error”.

Rather than sending the decision back to the gender recognition panel, the judge decided to remake the decision himself, and has granted W a gender recognition certificate.

Given the distress that trans people face when their gender is denied, the judge held that the Gender Recognition Act “leans actively towards the facilitation of gender recognition”. He considered that any approach to determining whether a certificate was awarded should be “permissive” and consider the evidence in the round, rather than relying on any one factor. He emphasised that whether someone was living in their acquired gender was “necessarily a far more subtle and nuanced concept” than allowed for by the panel.

Even though requiring that trans men could not conceive would not be a “physical and permanent interference” with the applicant’s body, the judge added, it would be a “significant interference” with their right under Article 8 of the European Convention on Human Rights to respect for private and family life.

In response to the judgment, W said, “I am absolutely ecstatic at the result of this judgement and cannot thank Good Law Project enough for all their help and guidance throughout, I truly couldn’t have done it without their unwavering support. I’m also proud of myself for not giving up and continuing to fight for what I felt was right, and I hope that this judgment can go towards helping other trans people in my position. I now finally feel safe and protected in my conviction to have a child as a trans person”

For Jess O’Thomson, Good Law Project’s trans rights lead, this is a “huge victory for trans people’s human rights in this country, at a moment where things have felt particularly dark”.

“We are delighted that the court has recognised the dual importance of trans people’s right to have their gender identity legally recognised, as well as their right to have a family,” O’Thomson said. “Trans people continue to have strong human rights protections under the European Convention on Human Rights – and Good Law Project will fight to ensure these are properly defended in our domestic courts.”

This is the third time in a row that Good Law Project has had success defending the trans community. It follows our win against the EHRC’s landlord, who had tried to prevent protest against the EHRC’s transphobic policies, and our case against major US law firm Morrison Foerster which discriminated against a young trans man, where they paid all of our costs, and 100% of the damages we sought.

Read the judgment in full here.