Andrew Smith: Gender Recognition & the Law

Gender Recognition and the Law

Recently I was asked for some advice on how to obtain a Gender Recognition Certificate(GRC).

My first port of call was the Gender Recognition Act 2004, which allows transgender people to change their legal gender and obtain a new birth certificate. The specific enquiry was regarding a statutory declaration, which is a requisite document when making the application to the Gender Recognition Panel.

I must admit, it’s not a common enquiry and so I thought it would be handy to set out some key facts about the application process. There are different application forms and ‘routes’ to application depending on your specific circumstances so it would be worth getting some advice beforehand. There is a fee to pay and you will also need to obtain a statutory declaration counter-signed by somebody capable of giving oaths (such as a solicitor).

How old do I need to be to apply for a GRC?

In all circumstances, you need to be 18 or over. You can be under the age of 18 if you want to change your name by statutory declaration (providing there is consent from all individuals with parental responsibility) but you cannot apply for the certificate until you are at least 18.

Are there any timescales before I can apply for a GRC?

It depends, if you have not had surgery you will need to have lived in your acquired gender for at least 2 years. This does not apply if you have had surgery. You also must declare that you intend to live in your acquired gender for the rest of your life.

If I am married or in a civil partnership can I apply for a GRC?

Yes, you can stay married if you apply for a certificate in England and Wales. You can obtain a full certificate if you both complete a statutory declaration saying that you both agree to stay married. However, only an ‘interim’ certificate will be granted if there is no declaration.

You must then divorce before a full certificate is granted. In contrast, if you are in a civil partnership you cannot obtain a full certificate until the partnership is dissolved or it is converted into a marriage, whether or not you both agree.

I have in the past acted for somebody who was forced to divorce his wife because he was going through gender reassignment surgery. They were not planning to actually separate but in order to be recognised as a woman legally he had to go through with a divorce. Thankfully the law changed after this particular case and couples are now able to remain married.

The situation regarding the treatment of civil partners seems desperately unfair in the modern world. Those who are in a civil partnership can obtain an ‘interim’ Gender

Recognition Certificate prior to dissolution but I do question what the point of that is if they can’t then have any legal recognition under a ‘full’ certificate until the civil partnership is ended or converted into a marriage.

Perhaps another rethink of the legislation is needed.

Andy Smith