Guernsey Law Reports 2007–08 GLR 161

ROYAL COURT (Collas, Deputy Bailiff and Jurats): December 3rd, 2007
Human Rights—right to respect for private and family life—gender reassignment—right under European Convention, art. 8 to rectification of Register of Births to recognize gender reassignment—by Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1), Royal Court to take account of decisions of European Court of Human Rights in adjudicating on issues involving Convention rights—modern approach of European Court that contrary to art. 8 to refuse to recognize change in gender assigned and registered at birth
Civil Procedure—hearing—hearing in private—Royal Court in exercise of inherent jurisdiction may order hearing in private if evidence contains intimate personal details of litigant, e.g. gender reassignment, which need not be made public in small community—may still publish decision and reasons without disclosing identity
  The Registrar-General of Births and Deaths sought the permission of the court under the Registration of Births and Deaths (Guernsey) Law 1935, art. 20 to rectify the entry in the Register of Births in respect of X.
  X had been born as a male in Guernsey and this had been recorded in the Register of Births. X now lived in the United Kingdom and, following gender re-assignment treatment, lived there as a woman and had obtained a full gender recognition certificate as a female under the Gender Recognition Act 2004. Nevertheless, she still retained her original Guernsey birth certificate, and applied for the Register of Births to be rectified to reflect the fact that she was entitled to be recognized as a female.
  She submitted that (a) to continue to recognize her as a male infringed her right to respect for her private and family life (as guaranteed by art. 8 of the European Convention on Human Rights), as she appeared to be female and was unable to produce her birth certificate when required to prove her identity without suffering embarrassment and causing confusion; (b) the European Court of Human Rights had specifically held that art. 8 could no longer allow the law in the United Kingdom (on which Guernsey law was based) to refuse to recognize any change of the gender assigned at birth on the basis of biological criteria—hence the enactment in the United Kingdom of the Gender Recognition Act 2004 to provide legally-regulated procedures for recognizing gender re-assignment; and

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(c) the Guernsey courts were required by the Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1), in deciding a question involving a Convention right, to take into account any relevant judgment of the European Court of Human Rights.
  H.M. Greffier (in his capacity as Registrar-General of Births and Deaths) proposed that the appropriate solution under art. 20 of the 1935 Law would be to leave the original entry in the Register of Births unaltered but to make an additional entry using the next available number for X’s year of birth, with the present date being stated as the date of registration. This additional entry would contain the details necessary to issue a new birth certificate to X in her new gender and new names.
  The court also considered whether this was an appropriate case in which to exercise its inherent jurisdiction to order a hearing in private.
  Held, giving the following directions to the Jurats:
  (1) The Royal Court was obliged in an appropriate case to recognize the rights under the European Convention on Human Rights of a person with reassigned gender, to whom a full gender recognition certificate had been issued under the Gender Recognition Act 2004 of the United Kingdom (para. 19).
  (2) The European Convention, art. 8 required respect to be given to X’s private and family life. This respect was not being given at present, since she was unable to prove her identity (when necessary) by the production of her Guernsey birth certificate, as doing so caused embarrassment and confusion. Her art. 8 rights were no longer satisfied by the rule, previously in force in the United Kingdom and followed in Guernsey, which refused to recognize any change in the gender assigned at birth on the basis of stated biological criteria. The European Court of Human Rights had specifically so held—resulting in the enactment in the United Kingdom of the Gender Recognition Act 2004, which provided procedures for recognizing the legal consequences of gender reassignment—and the Guernsey courts were obliged by the Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1) to take the European Court’s decision into account in adjudicating upon a question involving X’s Convention rights (para. 6; paras. 12–14; para. 20).
  (3) The solution proposed by H.M. Greffier satisfied the requirements of art. 20 of the 1935 Law. The original entry for X in the Register of Births would remain unaltered but an additional entry would be made using the next available number for X’s year of birth but stating the present date as the date of registration. The new entry would contain the details necessary to enable the Registrar-General to issue a new birth certificate to X in her new gender and new names (para. 22).
  (4) The Jurats agreed to grant the application.
  (5) This had been an appropriate case for the court to exercise its inherent jurisdiction to hear the application in private. The evidence

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contained personal details which need not be made public in a small island community such as Guernsey and the interests of justice would be better served by allowing X to maintain her privacy. As this was the first occasion on which the Royal Court had considered an application in respect of a person who had undergone gender reassignment, however, members of the public were entitled to know and understand how such applications were dealt with by the court and its decision and the reasons for it would therefore be made public without disclosing X’s identity (paras. 2–5).
Cases cited:
(1)      Bellinger v. Bellinger, [2003] 2 A.C. 467; [2003] 2 All E.R. 593; [2003] UKHL 21, considered.
(2)      Corbett v. Corbett (orse. Ashley), [1971] P. 83; [1970] 2 All E.R. 33, not followed.
(3)      Goodwin v. United Kingdom (2002), 35 E.H.R.R. 447; 13 BHRC 120, followed.
(4)      IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd., Royal Ct., Judgment 13/2004, April 22nd, 2004, unreported, dicta of Day, Lieut. Bailiff referred to.
(5)      Kevin, In re (Validity of Marriage of Transsexual), [2001] FamCA 1074, followed.
(6)      Scott (orse. Morgan) v. Scott, [1913] A.C. 417; (1913), 29 TLR 520, dicta of Lord Haldane, L.C. applied.
Legislation construed:
Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1): The relevant terms of this sub-section are set out at para. 14.
Registration of Births and Deaths (Guernsey) Law 1935, art. 20:
  “Should an error . . . be found in the Registers of births and deaths . . . the Registrar-General shall apply to the Royal Court for permission to rectify it. Such correction shall be written by him . . . without making any erasure or other correction; it shall moreover bear the date of the Act of Court granting permission and shall be signed by the Registrar-General . . .”
Gender Recognition Act 2004 (c.7), s.1:
  “(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—
(a)    living in the other gender . . .
  (3) An application under subsection (1) is to be determined by a Gender Recognition Panel.”
European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953); Human Rights (Bailiwick of Guernsey) Law 2000, Schedule 1, Part 1), art. 8:

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  “Everyone has the right to respect for his private and family life . . .”
H.E. Roberts, Q.C., H.M. Comptroller, for the petitioner.
1 COLLAS, DEPUTY BAILIFF, giving directions to the Jurats: I sat alone earlier this morning to consider an application to hear this matter in private. I granted that application and now wish to say a few words to explain my reasoning before I give you directions on the application we have just heard.
2 In Guernsey, as elsewhere, there is a well-established principle that whenever possible the courts should administer justice in public. There are, however, exceptional cases when the courts do sit in private. The exceptions were considered by Day, Lieut. Bailiff in the case of IFS Invs. Ltd. v. Manor Park (Guernsey) Ltd. (4) in the Royal Court. He followed the leading English case of Scott (orse. Morgan) v. Scott (6), in which Viscount Haldane, L.C. held ([1913] A.C. at 437) that there is a yet more fundamental principle, namely “that the chief object of Courts of justice must be to secure that justice is done.”
3 Consequently, Mr. Day recognized that—
“. . . there are a number of matters where the Royal Court in the exercise of its inherent jurisdiction conducts hearings in private; for example, cases concerning children or incapables, matrimonial or trust matters and ex parte injunction applications.”
You will be aware that court hearings involving children or sensitive family matters are invariably heard in private.
4 The application before you this morning is supported by an affidavit containing some personal details which, I was persuaded, do not need to be made public. I was satisfied that in our small community the interests of justice are better served by allowing the person to whom the application relates to maintain her privacy. (I refer to her in the female gender as a matter of convenience without in any way wishing to prejudge the court’s decision. I also refer to her as “the petitioner” even though the person bringing the application is in law H.M. Greffier.)
5 Although I have made an order permitting this hearing to be held in private, I directed that the decision of the court and its reasons for its decision shall be made public without disclosing the identity of the petitioner. This is the first occasion on which the Royal Court has had to consider an application in respect of a person who has undergone gender reassignment. Justice demands that the public are entitled to know and understand how such applications are dealt with by the Royal Court. I

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therefore intend that my directions to you this morning will be published without disclosing the identity of the petitioner.
6 I turn now to the application before you. The petitioner submitted an affidavit with supporting documents that you have all had the opportunity to read and I do not propose to repeat all of her personal details. I will limit my summary of the evidence to what I regard as the most significant facts in this case, namely: (a) the petitioner is an adult; (b) the petitioner was born in Guernsey and is entered in the General Register of Births as a child of the male gender; and (c) a full gender recognition certificate has been issued to the petitioner under the provisions of the Gender Recognition Act 2004, about which I will say more in a moment.
7 I will now turn to my directions to you on the law. As I have already said, this is the first occasion on which the Royal Court has had to consider an application of this nature. I circulated to you, along with the application and supporting affidavit, a copy of the leading decision of the English courts in this area, that of the House of Lords in Bellinger v. Bellinger (1). I respectfully accept and adopt what was said by their Lordships, in particular by Lord Nicholls of Birkenhead in his speech. Lord Nicholls’s explanation of “The indicia of sex and transsexual people” ([2003] 2 A.C. 467, at paras. 5–10) is very helpful in understanding the indicia of human gender, the recognized condition known as gender dysphoria or gender identity disorder, and the medical treatments available for that condition.
8 Their Lordships stated that the then present state of the English law regarding the sex of transsexual people was represented by the decision in Corbett v. Corbett (orse. Ashley) (2). That case decided that the law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, they determined a person’s gender for the purpose of marriage. Any operative intervention was to be ignored.
9 Lord Nicholls said Corbett had not been universally followed in other common law jurisdictions. The courts of South Africa and Canada had followed the case, but those of New Zealand and Australia had not. He said ([2003] 2 A.C. 467, at para. 14):
“Thus, for instance, in New Zealand and Australia post-operative transsexuals’ assigned sex has been recognised for the purpose of validating their marriages. In New Zealand in Attorney General v. Otahuhu Family Court [1995] 1 NZLR 603, 630, Ellis, J. noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex. He held there is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. An adequate test is whether the person in question has undergone surgical and

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medical procedures that have effectively given the person the physical conformation of a person of a specified sex.”
10 In Australia, Chisholm, J. reached a similar conclusion in In re Kevin (Validity of Marriage of Transsexual) (5). Lord Nicholls summarizes the decision in these words ([2003] 2 A.C. 467, at para. 15):
  “. . . [T]here is no ‘formulaic solution’ to determining the sex of an individual for the purpose of the law of marriage. All relevant matters need to be considered, including the person’s life experiences and self-perception. Post-operative transsexual people will normally be members of their reassigned sex.”
11 The decisions of courts of other common law jurisdictions can offer us helpful guidance. As I have said, the leading case in this area is the House of Lords’ decision in Bellinger (1).
12 We must take account of their Lordships’ findings in relation to human rights. Lord Nicholls summarized the development of the law by the European Court of Human Rights as follows ([2003] 2 A.C. 467, at paras. 20–21):
  “20 This issue has been before the European Court of Human Rights on several occasions in the last 20 years. During this period the development of human rights law on this issue has been remarkably rapid. Until very recently the court consistently held that application of the Corbett criteria, and consequent non-recognition of change of gender by post-operative transsexual persons, did not constitute a violation of article 8 (right to respect for private life) or article 12 (right to marry) . . .
  21 In its most recent decision the court has taken the view that the sands of time have run out. The United Kingdom’s margin of appreciation no longer extends to declining to give legal recognition to all cases of gender reassignment. This was the decision of the court, sitting as a grand chamber in the case of Goodwin v. United Kingdom (2002), 35 EHRR 447. Judgment was given in July 2002, that is, after the Court of Appeal gave its judgment in the present case. Christine Goodwin was a post-operative male to female transsexual. The court held unanimously that the United Kingdom was in breach of articles 8 and 12.”
13 Their Lordships went on to declare English law to be incompatible with the petitioner’s rights under arts. 8 and 12—that is to say, s.11(c) of the Matrimonial Causes Act 1973, which declared to be void a marriage between parties who are not respectively male and female, was incompatible.
14 Convention rights have now been incorporated into our domestic law

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by the Human Rights (Bailiwick of Guernsey) Law 2000. When “determining a question which has arisen in connection with a Convention right,” s.2(1) of that Law directs us to “take into account any—(a) judgment . . . of the European Court of Human Rights . . .” Hence we must take account of the decision in Goodwin (3).
15 In Bellinger (1), the House of Lords held they were unable to come to a decision recognizing that a person born male could be regarded as female as a result of gender reassignment treatment. Their Lordships considered that the complex and sensitive issues involved needed to be carefully examined by Parliament in order to prescribe definitive criteria to establish when any particular individual should be considered to be of the opposite gender to that assigned at birth.
16 Matters have moved on since Bellinger was decided. The Westminster Parliament has considered and resolved the issues which concerned their Lordships by enacting the Gender Recognition Act 2004. Section 1(1) of the Act allows a person who has changed gender to make application to a Gender Recognition Panel. 1(1) Rayden & Jackson on Divorce & Family Matters, 18th ed., at para. 35.32 (2005) states:
“The criteria to be met by an applicant who is living in the other gender are that he or she (a) has or has had gender dysphoria (defined in s.25 as ‘the disorder variously referred to as gender dysphoria, gender identity disorder and transsexualism’); (b) has lived in the acquired gender for at least two years; (c) intends to continue to do so for the rest of his or her life, and (d) provides the evidence required. The evidence required is a report from a registered medical practitioner or chartered psychologist practising in this specialist field, and a second report from any registered medical practitioner. At least one report must contain details of any treatment undergone or prescribed or planned for the purposes of modifying sexual characteristics.
Where an application is successful, a Gender Recognition Panel must issue a gender recognition certificate to a successful applicant. Where the applicant is single, this is a full gender recognition certificate; where the applicant is married, this will be an interim gender recognition certificate.”
17 We may take note of the provisions of the Act and so we are not obliged to follow the conclusion of their Lordships in Bellinger.
18 We do not need to decide today whether, or in what circumstances, the Royal Court would recognize a gender reassignment carried out in a jurisdiction other than the United Kingdom or a reassignment which has not been recognized in accordance with the criteria set out in the Gender Recognition Act 2004.

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19 My direction to you, on a point of law, is that the Royal Court must, in an appropriate case, recognize the Convention rights of a person with reassigned gender to whom a full gender recognition certificate has been issued under the Act.
20 Is the case before you today an appropriate case? The petitioner has explained how she considers her Convention rights are presently being infringed. The embarrassment, and indeed confusion, that may be caused whenever the petitioner is required to produce her birth certificate in order to prove her identity is obvious. I will cite one example.
21 The petitioner is normally resident in England where she is recognized as a female and is, I understand, entitled to a passport in her new name and new gender. In Guernsey, the island of her birth, she also has an entitlement to a passport but unless she were to obtain a special concession, which cannot be guaranteed, it would be issued only in her old name, which she has now abandoned, and declaring her to be of the male gender, a physical description which does not accord with reality.
22 In the application before us today, H.M. Greffier seeks permission to alter the General Register of Births by making an additional entry therein containing the details necessary to enable him to issue a new birth certificate to the petitioner in her new names and new gender. The new entry would include today’s date as the “Date of Registration” and would be assigned the next number available for the petitioner’s year of birth. The original entry relating to the petitioner would be unaltered.
23 In the circumstances of this case, and in the light of my directions to you, do you agree to grant the application?
Application granted.
Law Report
Guernsey Law Reports 2007–08 GLR 161