Part 2 – Alternative grounds for granting applications for gender recognition certificates
170.Part 2 of Schedule 5 makes additional changes to the Gender Recognition Act. When the Gender Recognition Act came into force on 4 April 2005, section 27 included a modified evidence process which was open to applicants who could produce evidence that they had been living in their acquired gender for six years prior to the date on which they made their application. The so-called “fast track” process ran for the first two years after commencement of the Gender Recognition Act and expired on 3 April 2007. Part 2 of Schedule 5 inserts a new modified evidence process into the Gender Recognition Act which is not limited in time. The modified evidence process set out in new section 3B of the Gender Recognition Act will only be available to applicants who meet the four conditions set out in new section 3A of the Act.
171.Paragraph 16 inserts new subsection (3A) into section 2 of the Gender Recognition Act. New subsection (3A) provides that section 2 of the Gender Recognition Act (Determination of applications) does not apply to any application under section 1(1)(a) of the Gender Recognition Act where the applicant indicates that they are making an application for a gender recognition certificate to be granted in accordance with new section 3A of the Gender Recognition Act.
172.Paragraph 17 inserts new section 3A into the Gender Recognition Act. New section 3A(2) provides that, if the Gender Recognition Panel is satisfied that the applicant meets the four conditions set out in new sections 3A(3) to (6) and has complied with the evidence requirements set out in new section 3B, it must grant the application subject to section 4 of the Gender Recognition Act (Successful applications). If the Gender Recognition Panel is not satisfied, it must reject the application in accordance with new section 3A(7).
173.New subsections 3A(3) to (6) set out the four conditions applicants must meet to be eligible to rely on the modified evidence process set out in new section 3B of the Gender Recognition Act:
The first condition is that the applicant was a party to a protected marriage or protected civil partnership on or before the date they make their application for gender recognition.
The second condition is that the applicant: was living in their acquired gender for six years prior to the date of commencement of section 12 of the Act; has continued to live in their acquired gender until the date they made their application; and intends to continue living in their acquired gender until death.
The third condition is that the applicant has or has had gender dysphoria or has undergone treatment for the purpose of modifying sexual characteristics.
The fourth condition is that the applicant is ordinarily resident in England, Wales or Scotland.
174.Paragraph 18 inserts new subsection (9) into section 3 of the Gender Recognition Act which disapplies the evidence requirements set out in section 3 in respect of applications where the applicant indicates that they are making an application for a gender recognition certificate to be issued in accordance with new section 3A of the Gender Recognition Act.
175.Paragraph 19 inserts new section 3B into the Gender Recognition Act. New section 3B sets out the modified evidence process an applicant who meets the four conditions in new section 3A of the Gender Recognition Act is entitled to rely on.
176.New subsections 3B(2) to (4) set out medical evidence applicants are required to submit. If the applicant is applying on the basis of having or having had gender dysphoria, a report made by a registered medical practitioner specialising in the field of gender dysphoria or a registered psychologist practising in the field of gender dysphoria which sets out details of the diagnosis of gender dysphoria is required. If the applicant is applying on the basis of having undergone treatment for the purpose of modifying sexual characteristics, or if the applicant indicates that they are currently undergoing such treatment or that such treatment has been planned or prescribed for them, a report made by a registered medical practitioner or registered psychologist practising in the field of gender dysphoria which sets out details of the treatment is required.
177.New sections 3B(5) to (8) set out the additional evidence applicants are required to submit. New section 3B(5) requires applicants to include a statutory declaration that they meet the conditions in new section 3A of the Gender Recognition Act. New section 3B(6) requires applicants to include in their statutory declaration a declaration as to whether they are single, married or in a civil partnership. The Secretary of State can amend the evidence requirements in new section 3B by order and the Gender Recognition Panel may require applicants to submit any additional evidence it requires to determine the application provided it gives reasons for such requests (new section 3B(10)). Applicants can also submit any additional evidence they wish to include in their application.
178.If an applicant indicates that they are married, new section 3B(7) requires married applicants or applicants in civil partnerships to include in their statutory declaration an additional declaration as to where their marriage or civil partnership was registered. This will enable the Gender Recognition Panel to determine whether the marriage or civil partnership is a protected marriage or civil partnership. Where the marriage is a protected marriage, new section 3B(8) requires an application to contain a statutory declaration of consent (“statutory declaration of consent” defined in new section 3(6B) of the Gender Recognition Act as “a declaration by the applicant’s spouse that he or she consents to the marriage continuing after the issue of a full gender recognition certificate”) or a statutory declaration by the applicant that his or her spouse has not made such a declaration. If the application contains a statutory declaration of consent by the applicant’s spouse, new section 3B(9) requires the Gender Recognition Panel to inform the spouse that an application has been made.
179.Paragraph 20 amends Schedule 1 to the Gender Recognition Act to insert new subparagraph (3) to paragraph 4. New paragraph 4(3) provides that the Gender Recognition Panel need not include a medical member when determining any application under section 1(1)(a) of the Gender Recognition Act where the application is for a gender recognition certificate to be granted in accordance with new section 3A of that Act.
