A transgender woman has failed in her claim that the Gender Recognition Act 2004 breaches the privacy of those who have had surgery or other medical procedures towards gender reassignment. Section 3(3) of the Act requires that individuals reveal details of such medical procedures to a Gender Recognition Panel to back up an application for a Gender Recognition Certificate. Yet the Panel is empowered to issue the certificates to people who have had no such procedures as long as they can provide evidence of gender dysphoria and show they intend to live according to their chosen gender for the rest of their life.
A UK High Court judge rejected the claim by Helen Carpenter, who has transitioned from male to female, that the extra burden on those who had had or were contemplating medical procedures was a breach of Article 8 of the European Convention on Human Rights on privacy.
Section 3(3) of the GRA 2014 says that if the applicant for a certificate “has undergone or is undergoing treatment for the purpose of modifying sexual characteristics” or plans such treatment or has had it prescribed then it is required that a doctor’s report on her position “provides details of it”. Mrs Justice Thirlwall said: “Given that this information is necessary to the decision to be taken, that its dissemination beyond the Panel is prohibited, I am satisfied that the provision of the information required in paragraph 3(3) is necessary and proportionate to the legitimate aim. There is no incompatibility with Article 8.”
There is a strong logic to this complaint against S.3(3). The Gender Recognition Panel can issue the certificate to those who suffered gender dysphoria and now live in their chosen sex but who have not undergone medical procedures. There must be evidence, including submissions from doctors, as explained in section 2(1) of the Gender Reassignment Act:
“the Panel must grant the application if satisfied that the applicant
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
(c) intends to continue to live in the acquired gender until death, and
(d) complies with the requirements imposed by and under section 3” (emphasis added).
Section 3(3) applies only to those who have had or intend medical procedures: they must provide details of such procedures. But if the Panel must grant the application under (a) to (c) of S.2(1), why should additional material be submitted if the applicant happens to have undergone or be planning medical procedures? Proof of dysphoria under S.3(1)(a) is supplied by medical practitioners; proof of intention to continue to live in the chosen gender is provided, presumably, by whatever means possible, including the individual’s own witness statement. Certainly the fact s/he has undergone surgery would be very good evidence of intention to remain in the chosen identity, but the law acknowledges that it is not necessary – since it accepts those who have not had surgery can prove their intention by other means.
Thirlwall does not seem to take this on board, merely asserting that the fact of surgery is “highly relevant” to the application, thus:
“He [Brendan McGurk, the Secretary of State’s barrister] … submitted, reasonably, that people who have had surgery will want this information to be before the Panel. Mr [Rory] Brown [for Carpenter] says that this should be a matter of choice for the applicant for a certificate, not a matter of compulsion. I cannot agree. Surgery is, for that applicant, an essential and irreversible step in the transition to his or her acquired gender. Were the provision to the Panel of such information to be dependent on the wishes of the applicant and the applicant were to withhold it (and persuade a doctor to do so), a Panel would be making a decision on partial information in respect of the required criteria in that applicant’s case … Where an applicant has undergone surgery, or plans to do so, that fact is highly relevant, if not central, to his or her application. It is plainly necessary to the Panel’s consideration of the criteria in section 2(1) (a)-(c).” (Para 29)
Well, yes, it may well be highly relevant – but is it truly necessary if the Panel can be persuaded by other means? McGurk told the judge that Panels would usually inquire into why someone has not undergone treatment for reassignment. But the fact that the Panel will ask whether someone has had surgery (and if not, why not) does not particularly justify a legal requirement to give the Panel details of such surgery. And given a diagnosis by an expert medical practitioner is sufficient proof of dysphoria for those who have had no procedures, why not leave it up to the individual concerned to then go on to prove s/he will live under her chosen gender by whatever means s/he wishes? That s/he “plans” treatment or has had it “prescribed” doesn’t really amount to strong evidence anyway. That s/he has had it is good proof, but does a Panel really need details (presumably of “how far” s/he has gone with the procedure; Thirlwall says “the provision of the name of, or a list of the names of, the procedure/s”) when an expert diagnosis of gender dysphoria is otherwise sufficient under S.3(1)?
In passing Thirlwall argues in effect that any breach of privacy can’t be much of a breach because details are given to only a small panel of people assessing the application. “There is no question … of ‘the government’ becoming aware of the intimate details of surgery. The information is provided to a small Panel set up by but independent of government. It does not go beyond the Panel” (Para 30). The ECHR applies in general as between individuals and the state. Thirlwall seems to suggest that the Panel is hardly “the state” at all since it is just a few people. Yet elsewhere in the judgment she is clear about the necessity of “the state” to establish the bona fides of a transgender person. For example at paragraph 21 she says:
“The effect of the grant of a Gender Recognition Certificate is profound and far reaching for the individual and the state. The state must adjust to the citizen’s new status and treat him or her accordingly for all purposes. There are changes to entitlement to benefits, pensions, health care services. A citizen’s place in the criminal justice system is affected and so on.”
The Panel is doing the state’s work and is an arm of the state. Records of its deliberations will be kept by the state. To concede that breaching privacy to a few individuals doing the state’s work is somehow not a really a breach of privacy would be a worrying precedent. Just one pettifogging bureaucrat may breach your privacy depending on the sensitivity of the information. If, for example, there were a requirement to tell a police officer or a single social security official of your reassignment, would that not constitute a breach of privacy vis-à-vis the individual and the state?
S.3(3) smacks of a sort of state-sponsored prurience and a profound distrust of people making supremely personal and difficult decisions when, whatever the advantages of accruing to one sex over another in terms of “entitlement to benefits, pensions, health care services”, there is actually no reason to believe transgender people are gaming the system for any personal advantage.
Carpenter v Secretary of State for Justice 2015;
An earlier case involving Carpenter: Carpenter v Secretary of State 2012
Also of interest: Christine Goodwin v. the United Kingdom 2002; and
Grant v UK 2006