On Sex and Gender Identity in law — A Primer

A photo of the bench of the European Court of Human Rights. Sat at it are 6 individuals, all wearing face masks
The European Court of Human Rights — Credit: “Council of Europe Credits”

As some of you will be aware, I’ve had an irritating gnat buzzing in my ear the past day or so trying to claim that he, as the Almighty Gamer Bro, knew so much more about the law than any woman, regardless of how qualified or experienced she is in law

Mediocre Man Syndrome in full force

Mediocre Man had somehow managed to convince himself that his knowledge about sex, gender identity, and Article 8 human rights meant that he was the authoritative voice on why legal sex isn’t legal gender identity and how neither were an Article 8 matter

Whoo boy, did he pick the wrong person to try that on

I’ve done explainers on this before, but not so tightly focused on how sex, sexual identity, and gender identity are all the same thing and why they’re an Article 8 matter from the viewpoint of a specific case

So I decided this time I’d explore this entire concept using a single case heard before the European Court of Human Rights (the ECHR)

Let’s break down all the evidence he had to ignore to be so wrong about the law, he’s not even right

And we’ll do it using one of my favourite cases, Goodwin vs The United Kingdom, [2002] ECHR 588

Let’s start with part of the Government’s argument in that case

“65. The Government accepted that there may be specific instances where the refusal to grant legal recognition of a transsexual’s new sexual identity may amount to a breach of Article 8, in particular where the transsexual as a result suffered practical and actual detriment and humiliation on a daily basis (see the B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 52–54, §§ 59–63)…. However, they denied that the applicant faced any comparable practical disadvantages, as she had been able inter alia to obtain important identification documents showing her chosen names and sexual identity (e.g. new passport and driving licence).”

Note the use of the term, ‘sexual identity’ by the government to describe a person’s sex. This is important — as even before we get into the judgement itself — we’ve an argument in court from the government that expressly states that the view of sex under the law in the UK is that of a matter of identity

Also note that the government itself states that the recognition of a person’s sex — their sexual identity — is a matter that falls under Article 8 of the Convention

Now let’s move onto the Court’s assessment

The very first point it raises in the preliminary considerations is that

“71. This case raises the issue whether or not the respondent State has failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transsexual, to respect for her private life, in particular through the lack of legal recognition given to her gender re-assignment.”

What’s important in this? The case is focused around Goodwin’s assertion that her human rights under the Convention in regards to Article 8 are being breached as the state (the government) has refused to recognise her change of legal sex that, in her argument, was obtained via the route of gender reassignment (see 60 and 62 in the judgement)

And the Court is clear in its preliminary consideration that this is a matter that falls under Article 8 because it is a matter of, “respect for her private life”

Now we move onto line 73 of the preliminary consideration within the judgement. I’ll quote the specific part that is of relevance and link it to the relevant domestic law and practice contained within section II of the judgement

“[…]In those cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life (the above-mentioned Rees judgment, p. 14, § 35, and Cossey judgment, p. 15, § 36).”

Why is this important? Because of the domestic law and practice

Let’s look at lines 23 to 25 and link them to the preliminary consideration

“23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.

24. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.

25. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.”

What is this? Why is it important?

Under UK law a person’s sex is recorded by the Registrar. This is recorded on the birth certificate and in the book of registrations. That is their legal sex

Under UK law at the time, that recording was of a fact that, as long as it was not a recording made in error, was an immutable fact. In other words, your sex as registered in the book of registrations is your legal sex for the whole of your life and cannot be changed

And let’s read that with the Court’s preliminary consideration. The Court notes that on previous challenges to this domestic law the Court ruled against the applicant, stating that, “[…]the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual[…]”

The register of births and birth certificates that record the gender of the individual. The Court states, as a matter of legal fact, that sex and gender in this regard are the same thing

Lines 76 to 77

“76. The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant’s life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female[…]

77. It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, § 41). […] the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court’s view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position[…]”

Again, note how the Court recognises that under the domestic law of the UK at the time the applicant’s sex is that as recorded in the book of registrations, being male, but her gender identity is female and this creates a conflict that must be resolved. In the words of the Court in line 90

“In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”

Not quite one gender or the other. The Court has already stated that it’s a fact that the applicant is legally male but their gender identity is female. They further state that this places the applicant in a position of *having* to live in an intermediate zone where are they not quite male or female for the purpose of law and society. It is across these lines we can clearly see that the Court recognises that sex, gender identity, and gender are, in their eyes, entirely synonymous. The judgement would not have been written in this way if it wasn’t

So the Court is addressing the need to solve this problem. But how? As the judgement notes, a person’s sex is that recorded in the book of registrations and on their birth certificate and the applicant’s gender identity does not match this. The remedy that the Court prescribes is that it’s entirely possible for the state to issue a new birth certificate in the applicant’s gender identity and this be reflected in the book of registrations (lines 86 to 88, and line 91)

Note how important this is. The Court is very clear. A person’s gender identity is that as recorded on the birth certificate and in the book of registrations, which in turn are the sole determinator of a person’s legal sex

So why Article 8? As noted by the Court

“90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be published in ECHR 2002-…) […])”

The right of each individual. This is critically important. These are human rights. They are rights enjoyed by every single person within each member state. There are no special rights. There no rights some people and others don’t. Human rights are human rights. They apply to everybody

And the Court is clear. Under Article 8 of the Convention every individual has the right to establish details of their identity. And what identity is specifically being examined here? The one in the case —

— That of a person’s sex

— Their sexual identity

— Their gender identity

All one and the same thing because this in domestic law is determined for the purposes of the law to be that recorded in the book of registrations and on the birth certificate

There aren’t three separate fields on a birth certificate to record sex, sexual identity, and gender identity. Just one field. And it is that one field that records one single piece of data; the individual’s sex as a matter of their personal identity; their sexual or gender identity; and a piece of data that lies within the autonomy of the personal sphere of that individual to establish. An Article 8 matter. As seen in line 93 of the judgement

“93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.”

Now, no doubt Mediocre Man and his ilk (assuming he’s capable of reading this far down) is going to try and argue this only applies to “post operative transsexuals”

This is wrong, and for two reasons

The first is as laid out above. A Convention human right is a human right that every individual has, not just some individuals

The second is that the requirement for somebody to be post-operative and sterilised before being allowed to have their self-defined sexual identity recognised by the law was judged to be a breach of their Article 8 human rights (X and Y vs Romania, [2021] ECHR 41) and that requiring any person to undergo sterilisation treatment to obtain recognition of their sex for the purposes of the law was also a breach of the Article 8 human rights (A.P., Garcon and Nicot v. France, [2017] ECHR 338)

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