No alteration in register for transsexuals

LAW REPORT v 22 February 1996

Regina v Registrar General of Births, Deaths and Marriages for England and Wales, ex parte P and G; Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Forbes); 16 February 1996

Persons whose sex at birth had been recorded in the Register of Births as male but who subsequently underwent "gender reassignment surgery" could not have their entries altered to female.

The Queen's Bench Divisional Court refused an application by two transsexuals, referred to as P and G, for judicial review of decisions by the Registrar General, on 29 September 1994 and 20 June 1995, refusing to alter entries made in the Register of Births in 1950 and 1962, in each case recording their sex at the time of registration as "boy".

The birth of every child born in England and Wales must be registered by entering in a register "such particulars concerning the birth as may be prescribed", including the sex of the child: see the Births and Deaths Registration Act 1953, section 1(1), and the Births and Deaths Regulations 1987, regulation 7 and Schedule 2, form 1.

But in certain circumstances alterations to the Register may be made; section 29 of the Act provides:

An error of fact or substance in any . . . register may be corrected by an entry in the margin (without any alteration of the original entry) by the officer having the custody of the register . . . upon production. . . of a statutory declaration setting forth the nature of the error and the true facts of the case . . .

Laura Cox QC and Rambert de Mello (Tindallwoods) for the applicants; David Pannick QC and Mark Shaw (DSS Solicitor) for the respondent.

Lord Justice Kennedy said the question was whether the Registrar General, when asked to make the alteration, was entitled to conclude that no "error of fact or substance" had been made. Since the register was a historical record and not a statement of current identity, post-registration surgery was irrelevant; it might be evidence of a pre-existing condition, but no more than that.

In Corbett v Corbett [1971] P 83, Ormrod J, when considering a transsexual's capacity to marry, said:

the criteria must, in my judgment, be biological, . . . the law should adopt . . . the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.

That test was approved in R v Tan [1983] 1 QB 1053, in which a born-male transsexual's conviction for living on the earnings of a prostitute (an offence only committable by a man) was upheld.

While accepting that the three biological criteria were congruent in their cases, the applicants argued that medical research had moved on and these criteria should no longer be regarded as sufficient to identify the sex of a child. The Registrar General's refusal to alter the record was irrational and failed to take account of the present state of medical knowledge about gender identity dysphoria.

However, having considered reports presented in April 1993 at the 23rd Colloquy on European Law on transsexualism, medicine and law, his Lordship concluded there was still uncertainty in scientific circles as to the cause of transsexualism, and the Registrar General was fully entitled to adhere to the Corbett test.

More recent research had suggested that the sex of an individual was determined by the construction of the brain; but even if that were accepted, problems remained as to (1) what ought to be written in the register at a time when any unusual brain construction was not apparent, and (2) whether the Registrar General must amend the entry once the unusual brain construction was brought to his attention.

His Lordship sympathised with those like the applicants who clearly felt very deeply that something should be done about their entries in the register. But this could not be achieved by showing that the Registrar General had acted irrationally, without regard to material considerations or with regard to immaterial considerations.

His Lordship also rejected arguments that the Registrar General's decisions breached articles 8 and 14 of the European Convention on Human Rights, which guaranteed respect for private and family life and the enjoyment of rights without discrimination, and discriminated against the applicants on ground of sex, contrary to sections 1(1)(a) and 29 of the Sex Discrimination Act 1975.