A Guide to the Gender Recognition Act 2004

By Alison Craggs, Senior Solicitor at The Burnside Partnership

What is the Gender Recognition Act?

The Gender Recognition Act 2004 is an act of parliament which came into effect on 5 April 2005.

It gives transgender people the right to change their legal gender so that it matches that of their gender identity.

The law enables people who wish to change their legal gender to apply for a Gender Recognition Certificate (GRC). This is a certificate which shows that a person has satisfied the criteria for legal recognition in their acquired gender.

The Act was introduced following two court rulings from the European Court of Human Rights which held that preventing a person’s ability to change the gender on their birth certificate was a breach of their human rights.

Process to legally change gender

Transgender people can legally change their gender by meeting the requirements set out in the Gender Recognition Act 2004. The applicant must, in most circumstances:-

1. Be aged 18 or over;
2. Have one report setting out a medical diagnosis of gender dysphoria and another report from a medical professional detailing any medical treatment received such as medication or surgery;
3. Have proof of having lived for at least 2 years in their acquired gender e.g. from bank statements, utility bills, payslips or their passport;
4. Make a statutory declaration that they intend to live in the acquired gender until death; and
5. If married, obtain the consent of their spouse (or if the spouse does not consent, an interim GRC which is valid for 6 months can be issued which can be used to end the marriage).

There are two other routes to apply which have different requirements but these are only appropriate in limited circumstances such as when a transgender person has already legally acquired a gender in another approved country or was married or entered into a Civil Partnership prior to 10 December 2014.

A standard application form and the above evidence must be submitted along with the payment of a fee of £140 to the Gender Recognition Panel (which includes at least one medical and legal expert).

The panel considers the evidence submitted to it to assess whether the criteria for issuing a Gender Recognition Certificate has been met. The applicant will not meet the panel and will not usually be required to attend a court hearing. If the criteria are met, the panel will issue an interim or a full GRC. If the application is unsuccessful, the panel will set out the reasons why.

Implications of obtaining a Gender Recognition Certificate (GRC)

Once a GRC is obtained, the holder is considered under the law to be of their acquired gender from that date onwards. This will have the following implications: -

• A new birth certificate recognising the holder’s legal sex will be issued by the Registrar General if their birth was originally registered in the UK;
• The holder can marry in their acquired gender;
• The holder will be able to retire at the age-appropriate to their acquired gender and receive state pension from that age;
• The holder will be entitled to all the usual rights of a person of their acquired gender;
• However, it will not affect the legal status as a parent and the exercise of parental responsibility.

A GRC is not retrospective so does not change a person’s gender history or affect any action that they took before it was issued.

If a person in receipt of a full GRC subsequently wishes to revert to their birth gender, they must make an application for a GRC and meet the requirements of the law in the same way that they did when making their previous application.

Relationship with the Equality Act 2010

The Equality Act 2010 protects transgender people from discrimination in the provision of employment and services on the basis of the protected characteristic of gender reassignment. This protection exists whether a person holds a GRC or not. There are, however, some limited exceptions upon which specific legal advice should be sought where a person is considering bringing a claim.

Use of the Gender Recognition Act 2004

As of 3 July 2018, only 4,910 people had legally changed their gender using the Act. This number represents just a small proportion of the transgender people in the UK, of which there are believed to be between 200,000 and 500,000. A consultation in 2018 indicates that this is because the process is viewed by transgender people as too bureaucratic, expensive, and intrusive.

Consultation in respect of changes to the law

In 2018, the Minister for Women and Equalities prepared a consultation which considered some reforms. Despite the results of the public consultation, the UK government has decided not to change the current law other than to make minimal administrative improvements such as reducing the fee payable and moving the application process online.

For more information, do contact Alison Craggs at [email protected]