Healthcare - March 2010

The law doesn’t always recognise transsexuals

A recent High Court decision has been hailed as a significant advance for transsexuals. The judge said their autonomy and dignity were now unassailable, and he ordered that the claimant, a male-to-female transsexual who is currently in custody, be transferred to a female prison so as to qualify for gender reassignment surgery (R (AB) v Secretary of State for Justice and The Governor of Manchester Prison [2009] EWHC 2220 Admin).

But is this case quite the victory it seems?

The claimant, AB, is keen to have her penis removed, but the hospital concerned says it will not perform surgery until she has lived as a woman inside a women’s prison. The judge said that in those circumstances, to deny transfer would infringe AB’s private life and so breach both Article 8 of the ECHR and the common law. It would deny her rights that even imprisonment could not remove. Too little attention had been paid to the effects of keeping her in a man’s prison, and to the fact that she would have to be segregated from other prisoners.

The hospital’s stipulation was perhaps surprising, given that AB has a gender recognition certificate, proving that she has lived as a woman for at least two years. The Gender Recognition Act says that certificate makes AB female “for all purposes”. Now, it seems, we must read that as “all purposes bar one”.

The judge acknowledged the Act but said, “The actual physical characteristics of a post-certificate, but pre-operative, female may remain relevant for some purposes”. The prison authorities were, in short, entitled to take account of the continued existence of AB’s penis. But doesn’t that contradict the Act?

In fact, the obstacles placed in AB’s way gave her something to kick against, and it would have been interesting if her case were somewhat more direct; if, for example, she had sought transfer merely because the law now regarded her as a woman. There are only two situations in which women can be imprisoned in facilities intended for men, and this case had neither of them. At the moment, when we look at the phrase ‘for all purposes’, we have to ask, what does ‘all’ really mean?

David Hewitt, Partner
Weightmans LLP