On 14 May, the High Court of Northern Ireland in Belfast ruled that the requirement for trans people to be diagnosed with a disorder is “unjustified” and is incompatible with the European Convention on Human Rights. This ruling will have implications for the future of gender recognition in Britain.
Currently, trans people who wish to have their gender legally recognised must first prove that they lived as their gender for at least 2 years, then they must pledge that they intend to remain in their gender permanently, and lastly, they must have a diagnosis of gender dysphoria which the National Health Service (NHS) describes as “a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity.”
The applicant at the centre of the case has been living as a transgender woman since 1999. She claimed the requirement of a medical diagnosis violated Article 8 and/or Article 14 of the Convention taken together and sought judicial review of the Gender Recognition Act 2004. This claim is not new and in fact, ex-Prime Minister Theresa May’s government made steps to remove the disorder requirement but those proposals were dropped in 2020 because, according to Equalities Minister Liz Truss, the legislation already balanced “proper checks and balances in the system and also support for people who want to change their legal sex.”
In the current case, the High Court judge, Mr. Justice Scoffield, stated that while the necessity of a medical diagnosis, in general, was not in contradiction to the Convention, the specific requirement of the diagnosis of a disorder was “unnecessary and unjustified” and “fails to strike a fair balance between the interests of the applicant and those of the community generally.”
The High Court said that it will hear the parties further on the question of remedy as to the identified incompatibility and how it may properly be addressed. It will also hear submissions on the proper way to proceed in respect of the practical difficulties in obtaining a specialist medical report.
Click here to read the summary of the decision. The full decision has yet to be released on https://www.judiciaryni.uk/