Gender Identity and Sexuality
The incorporation of Article 8 into domestic law via the HRA brings with it the requirement upon the state to respect aspects of private life including gender identity and sexuality and corresponding rights to develop relationships with whom one chooses.
So far as gender identity is concerned, in July 2002 the ECHR found the UK’s refusal to allow those who had undergone gender reassignment the ability to alter the gender registered on their birth certificate to be in breach of Convention rights. The UK is introducing legislation which seeks to remedy this position. The form of legislation currently proposed under the Gender Recognition Bill provides a procedure whereby a person with medically diagnosed gender dysphoria will be able to apply for a Gender Recognition Certificate. A full Gender Recognition Certificate is intended to allow a person to achieve recognition in their acquired gender for all purposes. In order to be eligible, an applicant must (amongst other things) have or have had gender dysphoria, must have lived in their acquired gender for a period of two years ending with the date of the application, and must intend to continue to live in the acquired gender until death. The proposed legislation does not require you to have undertaken gender reassignment surgery.
A person is not entitled to a full Gender Recognition Certificate if he or she is still married in accordance with his or her previous gender. An applicant for a certificate must provide a statutory declaration as to whether or not they are married. If married, but otherwise meeting the requirements for a certificate, you will only be entitled to receive an interim gender recognition certificate. This certificate will become a ground upon which an existing marriage is voidable if a decree of nullity is sought within six months of the grant of the interim certificate. If the marriage is annulled, then a full Gender Recognition Certificate can then be obtained.
A full Gender Recognition Certificate entitles you to obtain issue of a new birth certificate showing your new gender. However, there are some areas where historical gender will continue to be relevant, including parenthood, earlier commission of gender-specific offences and sporting competitions.
A person with gender dysphoria who has not obtained a certificate still enjoys rights to respect for private life and statutory protection does exist, including specific protection in relation to protection from discrimination for employment purposes.
As to sexuality, where a public authority seeks to discriminate against homosexuals, be it a ban on entering into forms of employment such as the armed forces, or be it something akin to differential treatment, such as a different age of consent, then it will almost certainly be acting contrary to Article 8 as recent decisions of the ECHR have shown.
So far as gender identity is concerned, in July 2002 the ECHR found the UK’s refusal to allow those who had undergone gender reassignment the ability to alter the gender registered on their birth certificate to be in breach of Convention rights. The UK is introducing legislation which seeks to remedy this position. The form of legislation currently proposed under the Gender Recognition Bill provides a procedure whereby a person with medically diagnosed gender dysphoria will be able to apply for a Gender Recognition Certificate. A full Gender Recognition Certificate is intended to allow a person to achieve recognition in their acquired gender for all purposes. In order to be eligible, an applicant must (amongst other things) have or have had gender dysphoria, must have lived in their acquired gender for a period of two years ending with the date of the application, and must intend to continue to live in the acquired gender until death. The proposed legislation does not require you to have undertaken gender reassignment surgery.
A person is not entitled to a full Gender Recognition Certificate if he or she is still married in accordance with his or her previous gender. An applicant for a certificate must provide a statutory declaration as to whether or not they are married. If married, but otherwise meeting the requirements for a certificate, you will only be entitled to receive an interim gender recognition certificate. This certificate will become a ground upon which an existing marriage is voidable if a decree of nullity is sought within six months of the grant of the interim certificate. If the marriage is annulled, then a full Gender Recognition Certificate can then be obtained.
A full Gender Recognition Certificate entitles you to obtain issue of a new birth certificate showing your new gender. However, there are some areas where historical gender will continue to be relevant, including parenthood, earlier commission of gender-specific offences and sporting competitions.
A person with gender dysphoria who has not obtained a certificate still enjoys rights to respect for private life and statutory protection does exist, including specific protection in relation to protection from discrimination for employment purposes.
As to sexuality, where a public authority seeks to discriminate against homosexuals, be it a ban on entering into forms of employment such as the armed forces, or be it something akin to differential treatment, such as a different age of consent, then it will almost certainly be acting contrary to Article 8 as recent decisions of the ECHR have shown.
