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Representing Transgendered Clients - a guide for family lawyers

Lyndsey Sambrooks-Wright, barrister of 2 Dr Johnson's Buildings, offers a guide to the Gender Recognition Act 2004.

Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings

Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings

For those representing transgendered clients there regularly arise practical considerations under the Gender Recognition Act 2004 ("the Act"), which in turn impact on concomitant areas of family law. For an article concerning private law children applications involving transgendered parents, please click here. This article is concerned with the issues confronting a client who is seeking to change gender.

Bellinger v Bellinger [2003] UKHL 21 marked a turning point in the courts' approach towards transgendered clients, with the Act being passed shortly afterwards.

Under the Act, anyone over 18 years old can apply for a gender recognition certificate on the basis of living in the other gender or having changed gender under the law of a country or territory outside the United Kingdom (s.1 (1)).  This is achieved by applying to the Gender Recognition Panel ("the GRP"): see Carpenter v Secretary of State for Justice [2012] EWHC 4421 (Fam) for a useful introduction to practical issues that may arise in relation to the GRP.

Under s.2(1) of the Act, the GRP must grant the application if satisfied that the applicant:

(a) has or has had gender dysphoria,

(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

(c) intends to continue to live in the acquired gender until death, and

(d) complies with the requirements imposed by and under section 3 [as to evidence].

Jean Sambrooks, Consultant Clinical Psychologist, ran a gender identity clinic in the North-West for over 25 years and was a member of the Gender Recognition Panel. She frequently appears as an expert witness in Children Act proceedings. She notes that gender variance as 'a situation whereby an individual experiences their "gender identity" (the psychological experience of oneself as male or female) as being incongruent with their external sex characteristics (phenotype) and the gender role associated with their phenotype. Where this experience causes significant distress then it is often termed gender dysphoria although transsexualism is often the preferred descriptor as it is more neutral. Intervention/treatment is generally required when the person's level of discomfort becomes so intense as to be judged the most important aspect of his or her life. Both gender role and phenotype may be a source of distress'.

Classification and diagnosis of Gender Identity Disorder
The definition and classification of Gender Identity Disorder remains an area of controversy between practitioners. Gender Identity Disorder is classified within DSM-IV (the diagnostic and statistical manual of mental disorders) but Ms Sambrooks states that 'there is serious debate as to the value of such a classification in general. There must also be debate as to the perception of Gender Identity Disorder/Gender Dysphoria as a mental health problem rather than a physical/organic problem. Being part of the classification brings with it some advantage in that having a 'recognised diagnostic label' makes services available which might otherwise not be accessed. Classifying a person as having a mental disorder, however, medicalises a problem that is probably not amenable to medical intervention and is becoming widely recognised to be strongly associated with the early neurodevelopment of the brain. Prevalence of reported psychiatric problems in the transgendered population is similar to those shown in the general population and there is no evidence that gender dysphoria is itself a psychiatric condition. Gender identity, whether consistent or inconsistent with other sexual characteristics, may be understood better by being thought of as less a matter of choice and more a matter of biology.

The condition may present in various ways and be of variable intensity. A person may start as a transvestite (having a need to cross dress without the phenotype discomfort) but later gravitate to transexuality. There is no test that provides an absolute diagnosis as it is a subjective experience and can be diagnosed only in accordance to the way it is perceived by the individual.

ICD10, an alternative psychiatric classification system, stipulates three criteria for the  'diagnosis' of transexualism in an adult: 

  1. The desire to live and be accepted as a member of the opposite sex, usually accompanied by the wish to make his or her body as congruent as possible with the preferred sex. 
  2. Transsexual identity has been present persistently for at least two years. 
  3. The disorder is not a symptom of another mental disorder or a chromosomal abnormality.

The last is a specific criterion but it should be noted that whilst gender dysphoria should not be a symptom of another mental disorder or chromosomal abnormality, gender dysphoria itself may generate certain mental disorders such as depression or anxiety. These are often  reactive to the person's situation but also occur as they do in the general population. The desire to live and be accepted as a member of the opposite sex is usually accompanied by the wish to make his or her body as congruent as possible with the preferred sex through surgery and hormones through treatment but there is considerable argument as to the conceptual approach to the issue and the related descriptive language. For brevity, transsexualism and gender dysphoria will be used synonymously but the conceptual differences should be acknowledged.  

Criteria for hormone therapy or surgery
It should be noted that the Act does not required a transgendered person to have undergone previous hormone therapies or genital reconstruction surgery, although many will have done so and will use these procedures as evidence of their commitment under s.1(c). Christine Evans MD FRCS, a urological surgeon (now retired), notes that the following are recommended criteria for surgery:

  1. Full psychiatric and psychological assessment under the Benjamin Criteria;
  2. Hormone treatment;
  3. Living and working in the new gender for two years (known as the Real Life Test/Real Life Experience);
  4. Other interventions include speech and voice training, potential laryngeal surgery and training in use of make-up and deportment, especially for clients transitioning from male to female (commonly regarded as the most common transition).

Jean Sambrooks advises that the recommended length of the Real Life Test may vary dependent upon the centre but confirms that a patient must have lived in the chosen role for at least a year prior to surgery taking place (length of time dependent upon the centre). Successful living in role must be 'full time' with documentation to prove that the transgendered person is recognised and functions in society as someone of the other sex, althoughthere is no longer a requirement to undertake paid employment in the acquired gender. Hormones may be offered at this stage, particularly to males presenting as females.

Ms Sambrooks explains that 'where an individual is moving from the female into the male role ('f/m'), the need for masculinising hormone therapy is less acute but often necessary to present effectively as a male.  Masculinising hormones generally result in the redistribution of body fat, the growth of body and facial hair and a lowering of voice pitch. Where the transsexual is male to female ('m/f'), hormone therapy results in the redistribution of body fat and may promote the growth of breasts, although surgical breast augmentation may be required. Whilst hormone therapy changes the texture of hair and weakens the beard growth, it does not eradicate it: laser therapy or electrolysis is often necessary with concomitant issues of temporary facial markings and funding issues.  Feminising hormone therapy cannot change bone structure, nor the size of hands or feet, which can all be features that make passing the Real Life Test difficult. It is not enough to be recognised as a transsexual; rather, the aim is to be accepted by society as the gender in which they choose to live. Equally, feminising hormones do not change the voice register of a male to return it to that of a pre-adolescent: speech therapy is therefore often an integral part of the m/f gender transformation'.

Requirements under the Act
The Act demands comprehensive supporting documentation to support any application for a gender recognition certificate. Section 3 of the Act requires that any application must include two reports by registered medical practitioners, one of whom must practise in the field of gender dysphoria. Alternatively applications can include a report from a registered psychologist practising in the field of gender dysphoria, alongside a report from a registered medical practitioner (s.3(1)). Any report from an expert practising in the field must include details of the applicant's diagnosis of gender dysphoria (s.3(2)) or details of any treatment 'for the purpose of modifying sexual characteristics', even if such treatment is only in the planning stages (s.3(3)). 

Ms Sambrooks confirms that effective support of patients with gender dysphoria requires multi-disciplinary input from health care professionals including GPs, psychiatrists, psychologists, speech therapists, endocrinologists and surgeons. This support is rarely available in the local community and may only be available from specialised gender clinics: Informed Care Pathways, as well as psychological and emotional support, may therefore be difficult to access locally. Guidance for general practitioners and other professionals was published in 2008 by GIRES (Gender Identity Research and Education Society) but not necessarily widely accessed. Referrals for surgery may also depend upon the resources of that Primary Care Trust. From a practitioner's viewpoint, these practical issues may result in considerable delay when dealing with any application under the GRA or CA 1989 and therefore need to be taken into account.

Ms Sambrooks reminds practitionersthat many individuals may have attempted to repress feelings and live according to their phenotype for years. As the need to address their gender dysphoriabecomes more prevalent, the level of distress may increase and for a time transexuality may present with what would appear to be emotional or mental health problems. Without treatment, transsexuals may suffer mental ill health and a significant impairment of their quality of life, especially where there are significant family or societal issues.

Gender recognition certificate and marriage
Once an individual has met the somewhat onerous criteria above – and should the GRP grant the application – a gender recognition certificate must be issued to the applicant (s.4(1)). This will be a full certificate unless the applicant is married or in a civil partnership (s.4(2)), under which circumstances the situation becomes significantly more complex.

Section 4(3) of the Act dictates that only an interim certificate can be issued if the applicant is married or in a civil partnership. If this is the case, the legislation as originally drafted dictated that the marriage or civil partnership must be brought to an end prior to granting a full certificate. That dissolution could be achieved on the basis of the interim certificate having been issued.

On making absolute a decree of nullity, the court must issue a full gender recognition certificate to the transgendered party. Under the original legislation, the parties were left in the bizarre situation of being able to remarry or form another civil partnership immediately on receipt of the full certificate, having been forced to terminate the previous one. . The government has however confirmed that the gender recognition provisions of the Marriage (Same Sex Couples) Act 2013 will come into force on 10th December 2014, subject to Parliamentary approval. The changes allow applicants to receive a full gender certificate without first having to end their marriage, as long as that marriage is under the law of England and Wales or a country or territory outside of the UK.  The guidance in relation to civil partnerships is less clear: some applicants have been advised to convert their partnership to a marriage before applying for a full certificate. The timescale for Scotland to make similar changes has not been confirmed at the time of writing: the situation in Northern Ireland has not altered and applicants must still end their marriage or civil partnership prior to receiving a full certificate.

As set out above, a new marriage or civil partnership can legally be formed within the United Kingdom in the applicant's acquired gender. To further complicate matters, however,  the Act provides what is colloquially – and perhaps unhelpfully – known as a 'conscience' concession which allows religious leaders to refuse to marry two parties when one is transgendered (s.5(b)).

For the information of practitioners, a full certificate may also be obtained through dissolution of the marriage or civil partnership on other grounds or the death of the applicant's partner within six months of obtaining the interim certificate (s.5). Once a full certificate has been acquired, a new birth certificate can be obtained reflecting the applicant's acquired gender.

Most relevantly for practitioners working with Children Act applications, the fact that a person's gender has become the acquired gender does not affect their role as father or mother of a child (s.12 of the Act). The practical considerations of introducing or reintroducing a child to a transgendered parent have been dealt with in a previous article. Jean Sambrooks offers the following advice for practitioners involved in cases involving contact with children:

"Where there are children involved within a family, it may better meet the children's needs for change to take place gradually. In the case of a male to female transgendered person the change may be gradual, with the male figure becoming gradually more feminine via a unisex route whilst the child is introduced to the concept of transgenderism. This depends on the level of understanding of the child and their level of attachment. A child may need to grieve the loss of a parent before they can accept a new parent and some may reject their parent completely although this may also depend on the response of the other parent. Other children respond to their parent's increased wellbeing once the gender change has taken place."

Practitioners may of course meet children within a family who wish to change gender. Jean Sambrooks warns that those under the age of 18 face even greater challenges than adult applicants. The resources available are more limited and distributed between even fewer GICs. A young m/f may only be offered limited endocrine therapy, which will suppress the production of testosterone but will not offer a significant dose of feminising hormones. As an application cannot be made under the GRA until a client is 18, the overall delay for young clients may become prohibitive.