This month, the UK has a historic opportunity to improve trans rights. The government is currently consulting the public on whether it should make it easier for trans people to have their gender legally recognised through the Gender Recognition Act.
“Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgement, be biological. My conclusion therefore is that the respondent is not a woman for the purposes of marriage, but is a biological male and has been so since birth.”
The judgment of Lord Justice Ormond in February 1971 in the case of Corbett v. Corbett was the first pronouncement of the law on the legal status of trans people in Britain. The matter at hand was the marriage of the model April Ashley to Arthur Corbett. Corbett had married Ashley knowing that she was trans, but once their marriage soured and she filed for a financial settlement on divorce, he sought to have the marriage annulled on the basis that Ashley was legally a man. Their marriage, therefore, would not be legal.
The case was considered salacious on the facts alone: Corbett was an aristocrat who enjoyed cross-dressing and had been bewitched by Ashley’s own embodiment of femininity, the court had heard. During the extensive medical evidence, details of Ashley’s hormonal treatment and her sexual reassignment surgery were discussed, and her genitalia examined by a nurse who provided a testimony.
At times, the scrutiny of Ashley’s femininity veered out of the legally necessary into the openly transphobic: “Her outward appearance, at first sight, was convincingly feminine, but on closer and longer examination in the witness box it was much less so,” Ormond declared, “the voice, manner, gestures and attitude became increasingly reminiscent of the accomplished female impersonator.”
Passable or not, Ashley’s claim was doomed. In his judgment, Ormond was clear: while one’s gender – which he identified as your social role as a man or a woman in society – could be changed in many contexts and even acknowledged by the state, one’s sex could never be changed. He concluded that the institution of marriage was one of the contexts in which sex was the defining element of the legal relationship. As a result, the Court found that the marriage of April Ashley and Arthur Corbett had been void from the beginning and she therefore had no right to a settlement.
Despite Ashley’s case, there was no way for trans people in England and Wales to amend their legal sex until 2004 (Scotland reviewed its Gender Recognition Act last year and the process of applying for a Gender Recognition Certificate differs in Northern Ireland).
The change was precipitated by the work of Press For Change, a campaign organisation co-founded in 1992 by Stephen Whittle, a legal scholar and trans man. The group sought better legal protections for trans people using the courts – achieved primarily through European Law. In 1993, political activist Christine Burns joined Press For Change and her memoir Pressing Matters is perhaps the only detailed published history of how the Gender Recognition Act 2004 came to be passed.
In 1998, the European Court of Human Rights narrowly ruled against two trans women who had sued the UK government for breach of their human rights, as it provided them with no mechanism for amending their birth certificates. Kristina Sheffield and Rachel Horsham both argued that their privacy was breached by having to disclose their birth gender in several official and professional contexts in the UK. Their legal arguments also pointed out that by 1998, almost all other European countries had a means for trans people to amend their legal sex.
Burns notes in Pressing Matters that trans campaigners’ disappointment with the Sheffield and Horsham judgment was tempered by the fact that several judges dissented.
One justice involved in the case said:
“It is no longer possible to justify a system such as that pertaining in the respondent State, which treats gender dysphoria as a medical condition, subsidises gender reassignment surgery but then withholds recognition of the consequences of that surgery, thereby exposing post-operative transsexuals to the likelihood of recurring distress and humiliation.”
The changing sands that helped to build a case for gender recognition laws weren’t just legal, but cultural too. In 1998, Coronation Street became the first British serial to feature a trans character. Hayley, played by actress Julie Hesmondhalgh, was given a romantic storyline that would develop into engagement with Roy Cropper. In Pressing Matters, Burns explains that “the show displayed Hayley having to explain to Roy that a marriage wasn’t legal – news that angered him a lot. Then the idea was hatched that, even if they couldn’t really marry, they could have a religious blessing instead.”
Hayley and Roy’s wedding episode was watched by 18 million people and, Burns says, “we all cried.”
Soon after Haley’s Coronation Street debut, Home Secretary Jack Straw announced an interdepartmental “working group” to consider the legal status of trans people in Britain. Though it is unlikely that this was as a result of a soap opera storyline, it is reasonable to assume that the new visibility surrounding trans people’s lives helped.
Once again, birth certificates were at the centre of the argument. As Whittle explained to Straw’s working group in 2000, this was simply because the documents are regularly required for legal identification.
He said: “It is often thought that what transsexual people seek in terms of change is the right to have their birth certificates re-issued and the right to marry in their new gender role, but this is only partly true. Firstly, birth certificate re-issue is not of itself what is sought. Rather, we seek changes in the civil registration system so that the 'public' and administrative record of who we are reflects the gender in which we identify.
“Choice as to whether or not to reveal having undergone any medical treatment, in circumstances where it is irrelevant, is a civil right available to other citizens. It is a civil right we seek for ourselves.”
Fundamentally, gender recognition was about administrative and medical privacy.
In 2002, more than 30 years after Corbett v. Corbett, the case of Christine Goodwin finally forced the British legal system into recognising its trans citizens.
Goodwin, a trans woman, appealed to the European Court of Human Rights that her privacy was breached by being unable to amend her birth certificate. She won and, as Burns notes, “the judgement, when it arrived, could not have been better.” Judges in the Strasbourg court ruled that Britain’s failure to legally recognise Goodwin’s gender identity breached her rights to respect for privacy, as well as her right to marry under the European Convention on Human Rights. “This time,” Burns writes, “we had not just won, but we had done so in the most convincing way possible.” The United Kingdom was now compelled to provide a means for trans people to change their legal sex.
Sadly, as is still the case in today’s media, reaction to the expansion of trans rights was not all positive. Shortly after Goodwin’s win, eight psychiatrists published a letter in The Daily Telegraph, claiming that the court’s decision was “a victory of fantasy over reality.” They argued that trans people “are individuals who, for complex reasons, need to escape from an intolerable psychological reality into a more comfortable fantasy. The recent legal victory risks reinforcing a false belief that it is possible to actually change a person's gender.” The Guardian ran a similar letter, but also included a response by Burns:
“The decision in the European Court of Human Rights wasn't about proving why trans people exist, or arguments about how to respond in medicine to that ‘delusion.’ The indisputable fact is that we are here. We have jobs and responsibilities, families and friends. We have people who love us and whom we wish to have the security to nurture in return. We desire these things in spite of the shabby way in which we've been demeaned in our own country. If those sentiments are fantasies, then I'm happy to remain ‘uncured.’”
In November 2003, the Gender Recognition Bill was published for debate in Parliament. It passed on 25 May 2004, and allowed trans people to apply for a Gender Recognition Certificate. This document instructed the Registrar of Births to issue a new birth certificate with the applicant’s acquired gender as the sex marker. A Gender Recognition Panel, made up of three legal and medical panellists, would be responsible for assessing that anyone applying for a certificate met the criteria, which included a diagnosis of gender dysphoria and two years of evidence at having lived in their acquired gender.
When it was passed, the Gender Recognition Act was a leading piece of LGBTQ equality legislation. However, like many LGBT legal advancements (for example, the gradual lowering of the age of consent for gay sex, or civil partnerships preceding same sex marriage), the Act was born out of compromise. It restricted gender recognition for all but a very select group of medicalised “transsexual” people who had followed a specific pathway through the British gender identity clinic system. It also provided no route for children and made the process more complex for married trans people.
Perhaps most jarring about the Gender Recognition Act is that it assumes all trans people make a binary transition from man to woman (or vice versa). Nonbinary people have always existed, but were not built into the framework of the 2004 Act.
Two years after the Gender Recognition Act came into force, a group of international human rights experts met in Yogyakarta, Indonesia to sign the “Yogyakarta Principles.” The Principles were intended to set the international standard for the equality and dignity of all LGBTQ people. Principle 31 calls for all States to adopt a “quick, transparent and accessible mechanism” for recognising people’s gender identity. It also states that “no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender.”
This principle – that trans people are entitled to self-determination, rather than having their identities determined by a psychiatric process which comforts the fears of the non-trans majority – is now written into law in many countries across the world. Norway, Denmark, Malta, Colombia, Argentina, Sweden, Portugal and Ireland all allow trans people to self-determine. In reforming our Gender Recognition Act, all of Britain will once more lead the way in LGBTQ equality.
Join VICE and Stonewall in calling on the government to make vital changes to the GRA and submit your response to the consultation.
This article was amended on Tuesday 16 October to clarify that the Gender Recognition Act of 2004 applies to England and Wales, and not all of the UK.