AB v Gender Recognition Panel Ruling Sets UK Legal Precedent

Statement on the Right to Gender Recognition (2024)

The right to gender recognition is a basic right that is protected by national and international legal and ethical frameworks. Accordingly, it is the duty of all professionals who are involved in a person’s request for legal gender recognition to make this process as easy as possible for the person.

Respect for Autonomy

Respect for autonomy is a key principle of medical ethics and this applies just as much to gender-affirming healthcare as it does to any other form of healthcare (Beauchamp and Childress, 1979). The right to gender recognition also falls within the scope of the right to self-determination (Ashley, 2024). This concerns one’s right to decide one’s identity, one’s embodiment, and the shape that one’s life takes. Accordingly, to deny a person’s right to gender recognition is to deny the person’s liberty, autonomy, and privacy (Weiss, 2001).

In the United Kingdom, gender recognition is governed by the Gender Recognition Act 2004. Trans people are currently burdened with many bureaucratic barriers to legal gender recognition in the United Kingdom. We contend that these bureaucratic barriers violate people’s rights to determine their own identities. Moreover, we contend that they comprise misuses of the Gender Recognition Act 2004.

Interpreting the Gender Recognition Act 2004

While the process of gender recognition under the Gender Recognition Act 2004 requires a diagnosis by a healthcare professional and assessment by a panel, the procedure is intended to be permissive rather than restrictive. This is decreed by Lord Justice Baker of the England and Wales High Court:

“The Gender Recognition Act is a statute designed to facilitate gender recognition, that the statutory regime is permissive rather than restrictive, and that the evidential requirements are ancillary to the statutory criteria and any directions made by the panel must not be elevated to a status which sideline or undermine the statutory criteria or frustrate the process”.

Accordingly, the Gender Recognition Panel must facilitate this process for the person. Obstructing this process comprises an injustice and a breach of this duty.

International Frameworks for Gender Self-Determination

Beyond the Gender Recognition Act 2004, the right to gender self-determination is implicitly or explicitly protected by international frameworks, including the European Court of Human Rights (2003), the Inter-American Court of Human Rights (2017), and the Yogyakarta Principles (2006). The Yogyakarta Principles state:

“Each person’s self-defined … gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom … No one shall be subjected to pressure to conceal, suppress or deny their … gender identity.”

In light of the above, we contend that all professionals and agencies, including doctors, surgeons, lawyers, judges, policymakers, passport office workers, registry offices, health record offices, schools, colleges, workplaces, and gender recognition panel members, have ethical and legal responsibilities to respect the person’s right to gender recognition and to make the gender recognition process as easy as possible for the person.


References
  • Ashley, F. (2024). “Gender self-determination as a medical right”. Canadian Medical Association Journal, 196: 833–835.

  • Beauchamp, T. L., and Childress, J. F. (1979). Principles of biomedical ethics. New York: Oxford University Press.

  • England and Wales High Court (2018). Jay v. Secretary of State for Justice, EWHC 2620 (Fam).

  • European Court of Human Rights (2003). Van Kück v. Germany, no. 35968/97. Council of Europe.

  • Inter-American Court of Human Rights (2017). Advisory opinion on gender identity, equality, and non-discrimination of same-sex couples, OC-24/17. San José: Inter-American Court of Human Rights.

  • Parliament of the United Kingdom (2004). Gender Recognition Act 2004.

  • Weiss, J. T. (2001). “The gender caste system: Identity, privacy and heteronormativity”. Law and Sexuality, 10: 123–186.

  • Yogyakarta Principles (2006). Principles on the application of international human rights law in relation to sexual orientation and gender identity. http://yogyakartaprinciples.org/wp-content/uploads/2016/08/principles_en.pdf


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