The applicant, born a male, had for many years been uncomfortable in the male gender and for the last few years had lived as a woman. She had made a series of applications for formal recognition of her change of gender under the Gender Recognition Act 2004 all of which had been refused by the Gender Recognition Panel. On the third application the reasons for refusal were, inter alia, that the panel could not be confident about the reliability of the medical evidence and the applicant had indicated that she was unwilling to comply with the panel's directions. She filed a notice of appeal against that refusal on the grounds, inter alia, (i) that the panel had failed properly to apply the statutory criteria under sections 1–3 of the 2004 Act and had made the decision by reference to whether or not she had complied with earlier directions rather than by a proper consideration and application of the statutory criteria; (ii) that in reaching its decision, the panel had had regard to irrelevant and/or incorrect factors.
On the appeal—
Held, appeal allowed. (1) Since it was designed to facilitate gender recognition, the statutory regime under the Gender Recognition Act 2004 was permissive rather than restrictive. The evidential requirements in section 3 were ancillary to the statutory criteria for the grant of a gender recognition certificate in section 2(1) of the Act. Any directions made by the panel were not to be elevated to a status which sidelined or undermined the statutory criteria or frustrated the process. Here the panel had become overly focused on the applicant’s failure to comply fully with its directions and, when it came to conduct its final analysis, had failed to stand back and consider all the material that she had provided in order to determine whether the statutory criteria under section 2(1) of the 2004 Act were satisfied, nor had it considered whether the substantial compliance by the applicant with the other directions obviated the need for the further information required by the panel. The fact that the panel wrongly asserted in its reasons for refusing the application that only one written communication had been received from the applicant since the directions were given, indicated that the panel was either unaware of, or overlooked, other communications provided by the applicant which included information submitted in response to those directions. They were plainly material to her application and ought to have been considered (para 93).
(2) The provision in paragraph 6(4) of Schedule 1 to the 2004 Act that the panel were to determine applications without a hearing unless the panel considered that a hearing was necessary required that a panel always give consideration to whether or not a hearing was necessary, in particular where issues of credibility might be relevant to its decision. Given that the purpose of the 2004 Act was to facilitate recognition and the evident difficulties that the applicant was having complying with directions in part as a result of her status as a prisoner, the panel ought not to have refused her application without directing a hearing at which she could have been given the opportunity to address the panel's concerns and the possible inconsistencies or shortcomings in her evidence. There was nothing to suggest the panel had considered the possibility of convening a hearing to determine the claimant’s application (para 95).
(3) In reaching its decision, the panel plainly attached significant weight to a medical report from July 2014. In doing so it was unclear whether the panel had taken into account the fact that the report was over three years old, that it had not been prepared for an application for a gender recognition certificate but for other litigation, and that the applicant had asserted that it contained inaccuracies. Moreover, the panel had given no indication that it would be taking the 2014 report into account in determining her third application until it referred to the report in its reasons for refusing the application. If the panel had been intending to take that report into account, it should have alerted the applicant before doing so and given her an opportunity to address the issues arising from it. In all those circumstances, it was clear that the process by which the panel reached its decision to refuse the applicant’s third application was deficient. On analysis, on the material before the panel, the criteria under section 2(1) of the 2004 Act had plainly been met such that a certificate should have been issued. In those circumstances, the appeal was allowed and the court issued the gender recognition certificate in accordance with section 8(3)(a) of the Act (paras 96, 97).
Per curiam. The power vested in the court by section 8(3)(a) of the Gender Recognition Act 2004 is sufficient to enable it to allow an appeal and issue a certificate in circumstances where the court concludes (a) either there has been an error of law in that the panel required additional evidence unnecessarily under section 3(6)(c) and/or the panel was wrong in concluding that the appellant had not supplied that information; and (b) it is not possible for the court to say, on the basis of the evidence before the panel, that the section 2(1)(a) to (c) criteria were satisfied; but (c) the court is satisfied that subsequent evidence established that those criteria are satisfied, subject to the additional evidence being properly admissible (paras 100–101).
Claire McCann (instructed by Howells, Sheffield) for the applicant.
Brendan McGurk (instructed by Treasury Solicitor) for the Secretary of State.