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Law report – M Jay v SS for Justice

Date posted: 3 June 2019

M Jay v Secretary of State for Justice 2018 EWHC 2620 (Fam)

Family department caseworker, Danny Bayraktarova, considers this recent Court of Appeal case concerning the Gender Recognition Act 2004.

 

This case concerns the appeal of Ms Jay against the Secretary of State for Justice in relation to the refusal of M Jay’s third application for change of her gender under s.1(1) of the Gender Recognition Act 2004.

 

By way of background, Ms Jay was born male and has been married three times and has seven children. For many years however Ms Jay has been uncomfortable in the male gender and has been living as a woman since 2008. She had started taking sex hormones and had undergone other procedures. In 2011, Ms Jay was convicted of an offence and was sentenced to eight years in prison. While in prison, Ms Jay had considerable difficulties with her mental health. A number of psychiatric reports were prepared on behalf of Ms Jay in relation to her issues with mental health and gender identity which suggested that Ms Jay’s mental health difficulties were exacerbated by the lack of progress in the process of changing her gender.

 

Ms Jay made a couple of applications for change of gender while in prison. Both were refused by the Gender Recognition Panel due to lack of medical evidence stipulating that Ms Jay has been diagnosed with gender dysphoria, thus failing to satisfy the requirements set out in the Gender Recognition Act 2004. Ms Jay’s third application was also refused by the Panel, despite protracted correspondence with the Panel in which she pleaded that she was disadvantaged by way of her status as a prisoner in obtaining and necessary evidence, although she had already provided a number of medical reports.

 

Ms Jay appealed the Panel’s decision on the following grounds:

 

  1. The Panel did not apply the statutory criteria appropriately and instead relied on their own guidance as opposed to what was set out in law.
  2. The Panel had regard to irrelevant or incorrect factors when making their decision and failed to take into account that by the time she had made her third application, Ms Jay had provided a wealth of medical evidence.
  3. The process of obtaining a gender recognition certificate was in breach of Ms Jay’s rights under Articles 8 and 14 of the European Convention on Human Rights.

 

The Secretary of State was invited to intervene however his position in the proceedings remained neutral.

 

In making its decision, the Court allowed Ms Jay’s appeal on grounds 1 and 2. The Court considered the wider public debate on gender recognition however declined to consider the human rights issues raised. A gender recognition certificate was subsequently issued to Ms Jay.

 

On 22 October 2018, the Government’s consultation on reform of the Gender Recognition Act 2004 closed and the Government is due to publish its response to the feedback it received.