Lacking recognition?

AB is a male-to-female transsexual who is serving a life sentence in Strangeways prison. Though post-tariff, she is 'pre-op' and dearly wants to have her penis removed. The hospital concerned says it will not permit surgery until she has lived as a woman inside a women's prison, but the justice secretary has refused to transfer her there.

The High Court ruled that this refusal infringed AB's private life and so breached article 8 of the European Convention on Human Rights, and that it was 'Wednesbury-unreasonable' and therefore contrary to the common law. AB had been denied rights that even imprisonment cannot remove, and too little attention had been paid to the effects of keeping her in a men's prison and to the fact that she would have to be segregated from other inmates (R (AB) v Secretary of State for Justice and the Governor of Manchester Prison [2009] EWHC 2220 Admin).

The decision has been hailed as a significant advance for transsexuals, with the judge himself declaring that their autonomy and dignity were now unassailable. But is that really so?

AB possesses a Gender Recognition Certificate, granted under the Gender Recognition Act 2004 (GRA) because, among other things, she was able to show that she had lived as a woman for at least two years (section 2(1)(b) GRA). Before this case, the effect of such a certificate had seemed clear: 'The person's gender becomes for all purposes the acquired gender,' section 9 of the Act says, and the notes add, for example, 'an applicant who was born a male would, in law, become a woman' (section 9(1), 'Explanatory Notes', paragraph 27 GRA). That would cover this case perfectly, if only 'for all purposes' meant what it seems to mean.

It is true that the judge in this case found for AB, but that was simply because the minister's rationale had been defective. The judge did not find that she was a woman and therefore entitled to serve her sentence in a women's prison. Such a finding would itself have given AB victory, for, as far as women are concerned, the minister accepted that there are only two circumstances in which they might be detained with men: as a purely temporary measure or where the requirement for security is so high that it cannot be met elsewhere. Neither circumstance obtains in AB's case. The judge said a 'biologically female' offender who presented the same risk would not be held in a men's prison, and that AB's risk could, in any event, be successfully managed in a women's prison (11 & 59). The problem, it seems, was AB's penis, and the fact of its continued existence.

All purposes but one

The judge acknowledged that the Gender Recognition Act seemed to require that AB be regarded as a woman. Surprisingly, however, he added that 'the precise scope of the provision is unclear' (32) and, without saying where it came from, ruled that there was in fact an exception to section 9: where a prisoner who is legally a woman still possesses male genitals, she might in effect be treated as a man if her 'pre-operative physical state' is of 'specific relevance' to the functioning of the prison (31, 32 & 81). It seems we must read the apparently all-embracing injunction in the Act as 'for all purposes but one'.

In this case, the stipulation made by the hospital AB hoped would treat her was perhaps surprising; there is a certificate to prove she has lived as a woman and has done so in prison (albeit a men's prison). That stipulation was, however, supported by a wealth of expert opinion, and it is therefore unimpeachable. The judge's reasoning is perhaps less so.

AB has won a notable victory, in terms of her own life and dignity and also for people who find themselves in a similar situation. Yet, the broader implications of her case are more mixed. The Gender Recognition Act was a bold attempt to protect people whom it is all too easy to marginalise and even victimise. It was bold simply because it existed, of course, but also because it was emphatic: no situation could be countenanced in which a person's true gender might be denied. That this should have been compromised is a matter for regret, the more so because there is nothing to guarantee that further compromise will not follow.

The outcome of this case is unsurprising: there are few, surely, who would deny AB surgery or the prison transfer upon which it seems to depend. Yet, viewed objectively, the judgment should give transsexuals, and those that support or advise them, real pause for thought.

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