The specialist decision panel refused an application for a gender recognition certificate on the basis that it was not satisfied, from the evidence available, that the applicant had been “living in the other gender” for a period of two years as required by section 2(1)(b) of the Gender Recognition Act 2004. In setting out the reasons for its decision it referred to the evidence provided by two medical experts, which it considered to be lacking in certain respects, but failed to mention the statutory declaration which the applicant had made in accordance with section 3(4) that she had been living as a woman for the relevant period and intended to do so until death. On a statutory appeal against that decision, the applicant asserted that the panel had, inter alia, erred in law in its approach to the evidence, giving insufficient weight to evidence demonstrating that the applicant had been living in her acquired gender throughout the two years ending with the date of her application and intended to do so until death for the purposes of sections 2(1)(b) and (c), and that the High Court, taking account of both the original evidence and further additional evidence adduced on the appeal, ought to grant the certificate pursuant to its powers under section 8(3) of the 2004 Act.
On the appeal—
Held, appeal allowed and certificate granted. (1) On an application for a gender recognition certificate under the Gender Recognition Act 2004, the role of the medical witnesses went no further than reaching a diagnosis of gender dysphoria (as required by section 2(1)(a) of the Act) and it was not for them also to “diagnose” whether an individual was or was not “living in the other gender” for the purposes of section 2(1)(b). That was not a matter for medical diagnosis and, while information in any medical report would sit alongside all the other evidence in the case on the question of whether the applicant had been living in the other gender, that issue, in contrast to the diagnosis of gender dysphoria, was not to be determined by considering the medical evidence alone. Instead, it was a factual determination to be made by the panel on the totality of all the evidence. In the present case, the panel had fallen into error by, inter alia, relying on the medical evidence in isolation when determining whether the applicant had been living in the other gender for a period of two years for the purposes of section 2(1)(b). The panel had failed to have regard to all the relevant evidence which, taken as a whole, presented a clear and consistent picture of a person who had lived as female for over a decade, and its decision would be set aside accordingly (paras 61–63, 66, 67, 73).
(2) The established test for determining whether additional evidence ought to be admitted on appeal rightfully applied at the stage at which the appellate court was deciding the appeal itself. However, that test did not continue to apply where the appellate court then moved on to retake the original decision. At that stage, the court was standing in the shoes of the panel at a rehearing and was entitled to consider any admissible and relevant evidence that might have been placed before the panel had the application instead been remitted to them. In the present case, determining the matter on the totality of the evidence before the court, which established that the applicant had had gender dysphoria, had lived in the female gender consistently for many years including the period of two years before her application and, on the basis of that evidence and her statutory declaration, that she intended to continue to live in that gender until death, a gender recognition certificate was to be issued to the applicant (paras 77–79).
Lisa Giovannetti KC, Allan Briddock and Catherine Jaquiss (instructed by DAC Beachcroft LLP) for the applicant.
Sarah Hannett KC (instructed by HM Attorney General) as advocate to the court.
The Gender Recognition Panel was not represented.