Judgment Analysis: Jay v Secretary of State for Justice
Claire McCann
Catherine Meenan
Cloisters’ pupil, Catherine Meenan, examines the High Court’s decision to allow the appeal brought under the Gender Recognition Act 2004 in Jay v Secretary of State for Justice.
Cloisters' Claire McCann acts for Ms M Jay, a trans woman who had her application for a Gender Recognition Certificate (GRC) denied by the Gender Recognition Panel more than a year ago. Broadly, the Panel refused to grant a GRC because it considered that Ms Jay did not comply with directions which it had issued concerning additional evidence which it perceived to be necessary in order to demonstrate that the criteria for a GRC under s.2(1) of the Gender Recognition Act 2004 (GRA) were satisfied.
Ms Jay’s appeal succeeded and, in a judgment handed down by the High Court yesterday, it was found that the Panel had focussed overly on the question of compliance with its directions whereas, on the evidence before the Panel, it was evident that Ms Jay’s application satisfied the criteria for a GRC under s.2(1) of the GRA.
The judgment emphasised that the purpose of the GRA is to facilitate legal recognition of a person’s gender and should properly be regarded as a permissive, not a restrictive, regime. This being so, procedural hurdles should not be unduly placed in the way of applicants and medical and other evidence should be looked at as a whole. In light of this, and the Court’s conclusion that the evidence before the Panel clearly satisfied the statutory criteria, the Court issued the GRC.
In his judgment, Mr Justice Baker (now Lord Justice Baker) commented (obiter) that the Court could and should have regard to new relevant evidence that had come into existence after the Panel had made the decision. Baker J agreed with the submission made on behalf of Ms Jay that such evidence should be taken into account for two main reasons: firstly, the specific evidence satisfied the test for the admission of fresh evidence under the test laid out in Ladd v Marshall; and, secondly, it was in the interests of justice to have regard to this evidence because of the Court’s positive duty under s.6 of the Human Rights Act 1998 to safeguard the Appellant’s Article 8 rights.
This case is important not only for the positive outcome for Ms M Jay who is now to be treated in law, for all purposes, as a woman, but more widely for the trans community. It demonstrates that the legal regime must not be overly bureaucratic and must, instead, facilitate the path to legal recognition of a person’s affirmed gender.
This is especially crucial at this time given the current Government consultation on amendments to the GRA which aim to reduce the bureaucracy and hurdles for trans people seeking legal gender recognition, particularly by proposing a statutory self-declaration process as a less intrusive regime. The current regime requires two medical reports, evidence of a diagnosis of gender dysphoria and other evidence demonstrating that the applicant has lived fully in their affirmed gender for at least two years (and intends to do so until death). The judgment fully acknowledges and emphasises that the current framework under the GRA (including the appellate jurisdiction) is underpinned by a positive duty on the State (including both the Gender Recognition Panel and the Court) to uphold and enforce Article 8 rights, thereby facilitating – not obstructing – legal recognition of trans people in their affirmed gender.