A Belfast court judgment has been hailed by as a “landmark” moment in UK transgender rights by influential campaign group Stonewall.

[13] The applicant is concerned about her inability to obtain a GRC as a result of her present lack of ability to secure the necessary report confirming a diagnosis of gender dysphoria. Her birth certificate records her gender as male. She says that, for this reason, she does not keep a copy of her birth certificate and “cannot bear to have this document around”, as it makes her feel depressed and totally ashamed. She is reluctant to disclose her birth certificate and feels anxious about the prospect of having to disclose it from time to time for various purposes. The applicant does not presently have a passport, having never left the island of Ireland and having never applied for a passport as (she avers) she did not want to disclose her birth certificate to the passport authorities or to have a passport in her old name and her assigned (rather than her acquired) gender. Obtaining a GRC and, therefore, a birth certificate with which the applicant could associate, would allow her to obtain a passport and would provide her with a further sense of assurance as to the legal recognition of her acquired gender.
[14] The applicant has a bank account and phone contract in her new, preferred name which she says, although sounding simple, was a matter of great significance to her. Generally however, she describes herself as having been “left in limbo” as regards full recognition of her acquired gender, which is causing her further distress, anxiety and anguish.

Somebody needs to tell the judge and JR111 that you don't need a GRC for a passport just a note from your GP (unless that's what the "she avers" refers to). Were they really not paying attention during the ONS census debacle? This is one of several curious inconsistencies that really niggle me about this case and have me looking for my tinfoil hat...

www.gov.uk/changing-passport-information/gender

Gender change
Send one of the following when you apply for a passport:

a Gender Recognition Certificate
a new birth or adoption certificate showing your acquired gender
a letter from your doctor or medical consultant confirming your change of gender is likely to be permanent

Ah yes. Because anyone who is a sex offender couldn’t really be trans....

Re evidence discussion.

This was written by a transwoman on twitter:

It is a massive privilege to be allowed to change one's birth certificate. Why should there not be barriers to doing this, especially since it brings with it a degree of access (depending on service provider, but policies have been VERY generous in recent years) to women's spaces and even shortlists. There's plenty of evidence that access has been given away even without a GRC, so this lawyer-ventriloquised whinging is in extremely bad taste.

@CuriousaboutSamphire

Do you think policy should be based on feelings alone? OMG but that made me truly laugh out loud - I woke the dog

Are you sure you wanted to say that out loud yeahbutnaw ?

I replied before reading much of the thread..a habit I cannot seem to break. This is great, really..

@tellmewhentheLangshiplandscoz

Women - show evidence that letting biological males into your space may increase the chance you could be harmed. Otherwise you're talking crap basically.

Whilst the judge ruled that the government is still able to require applicants to undergo some kind of diagnosis, it is contrary to the European Convention on Human Rights to call their condition a “disorder”.

This reads to me as..nope t self ID. However the wording needs to be changed on the requirements, a move away from 'disordder'. Is that right? If so..not sure what stnewall are crowing about?

I've read a fair chunk of the the judgement now. Really interesting setting out of the evidence about the to-ing and fro-ing between geo, number 10, and civil servants, between the consultation into gra reform and the government coming to a position.

I now see why pp's think it is possible that the need for the person to be experiencing duscinfirt/distress could be removed by changing the criteria from dysphoria to Incongruence. Its not clear at all that it will be, but there are some suggestions from the evidence that it could be.

It's a crap state of affairs that someone who probably would get a grc (& has the right in law to apply for one) can't in practice access that because of a lack of specialists in NI to support the application. It must be horrible for her. It looks like later stages of the case will look at whether that breaches her rights. The answer to this is better resources for this type of care, rather than removing the need for it.

One thing that stood out for me is the tension between arguing that its not a psychological disorder, while also explaining that her feelings of shame at being born male mean she can't bare to have her birth certificate anywhere near. It leaves me thinking that changing the word on the certificate doesn't actually address the issue.

I also find it rather distasteful the way that it is taken as a given that being considered as having a mental health issue is stigmatising and shameful. That's obviously how she feels which I understand, but the fact that all the lobby groups and this court emphasise the stigma is wrong in this decision making is wrong and serves to further entrench that stigma.

Anyway there's a few things in the ruling that helpfully clarifies for us, while other bits open up uncertainties.

Sorry, Manderleyagain, my mistake. Old Square, not Old Court.

'I accept that being a transgender woman is an ‘other status’ which would warrant protection
under Article 14 and that the subject matter of these proceedings is plainly within the ambit of the applicant’s Article 8 rights. I am not persuaded that she is in an analogous position to her comparator, namely a non-transgender (or cisgender)
woman; and, in any event, would consider the difference in treatment between the two to be objectively justified...

Ah, that makes sense if it is JR111's chosen comparator, because the legal sex of anyone without a GRC in UK law is their birth sex.

So the judge finds:

TW without a GRC are NW.

A medical diagnosis for a GRC is necessary for the benefit of the patient and for the wider community, so it's a hard legal No to self-ID.

Don't call it a disorder, maybe not even 'gender dysphoria' because there may not be distress but rather 'gender incongruence' which has yet to be defined according to the judgement. Incongruence already has a very specific meaning for psychiatrists who are also seeing other comorbidities alongside, as in the child clinics.

Judgement also highlights the fact that the condition can't be depathologised unlike homosexuality as "the Gender Identity Research and Education Society (GIRES), noted that removal altogether from the ICD (as occurred with the depathologisation of homosexuality) was not an option, since gender dysphoria frequently requires medical interventions." So LGB and T don't and can't follow the same path.

Maybe Stonewall prepared their response in advance of the law...

Sorry, cross posted with Charlieparley, but glad to see I read it the same as her!

@yeahbutnaw

Do you think policy should be based on feelings alone? Or should it be evidence-based?

No, that would be absolutely absurd, wouldn’t it?

Then you'd have evidence from countries with Self-ID where women are refusing to use the toilet, surely
What would that look like then?
As theres plenty of anecdotal evidence that women are using toilets on different floors as they are single sex,
An unspoken agreement is made in many places of which is the single sexed loos and visitors are pointed to their sexed bog. Even though officially they are mixed.
And women (me) are using the disabled loo because its single user.
But who collates this info, who even asks?

Thanks for that oldcrone.
From the old chambers blog, it doesn't sound like the judge intended to take discomfort or distress out of the equation:

Scoffield J quoted with approval the following passage by Thirlwell J in Carpenter (para 5):

“Gender dysphoria occurs when a person experiences discomfort or distress as a result of the mismatch between his or her biological sex and the gender with which they identify. Until recently in was considered a psychiatric disorder. The current approach has moved away from characterising it as a disorder and towards a description of its characteristics.”

Anyoldprion
This is worrying as previous case law stated the comparator as being another person the same sex
I see what you mean in that the starting point here is that the comparator is a woman (the claimant is comparing herself to a woman), but the judge is saying that the claimant is not analogous to a person of the opposite sex and isn't persuaded by that argument.

This is worrying as previous case law stated the comparator as being another person the same sex. It may be, of course, that in this case the comparator is different for some technical reason, but this kind of problem will only increase if the assertions of the falsehood that these men are women continues to go unchallenged in legal circles.

Finding the right comparator can be very difficult. It depends on the particulars of a discrimination case AnyOldPrion and it is not a given that the right comparator must be a person of the same sex.

The comparator is also chosen by the applicant, not by the judge. Much more importantly however, the judge here does not accept the applicant's argument of having been unlawfully discriminated against when compared to a woman.

Because the judge here rejects the claim that the applicant and a woman are the same.

Two things struck me reading CharleyParley’s post:

There are various ways of achieving this and it depends on what the court finds is the remedy for the current terminology. It may not change much at all, it may change a lot. There is a large amount of overlap between the diagnosis preferred by the applicant (gender incongruence) and the diagnosis that is currently required (gender dysphoria). The main difference is the absence of serious distress which is present in the latter and absent in the former. In practice though, both diagnoses may be seen as as good as the same.

Given that the entire point of allowing these men into women’s spaces is that using men’s spaces would cause distress, then if the requirement for distress is removed, then the need for a GRC is surely removed? Why would men get to use women’s spaces if they are not distressed by the alternative?

This is, of course, the prime reason for the assertion that men are women. It’s a deliberate ploy to move away from “These men are distressed and need our help” to “these men are women and must have women’s rights”.

Oddly enough, my immediate reaction on seeing this thread was that if activists push harder and harder to get self-ID in by the back door, I hope the government’s reaction would be similar to mine: which is that the loopholes they are trying to expand should be closed altogether. This must reach a point when even the government says “enough”.

”I am not persuaded that she is in an analogous position to her comparator, namely a non-transgender (or cisgender) woman; and, in any event, would consider the difference in treatment between the two to be objectively justified – whether one applies the manifestly without reasonable foundation or the fair balance level of scrutiny – on the basis of the aims identified in AP, Garçon and Nicot and of the analysis above in relation to the applicant’s Article 8 claim."

This is worrying as previous case law stated the comparator as being another person the same sex. It may be, of course, that in this case the comparator is different for some technical reason, but this kind of problem will only increase if the assertions of the falsehood that these men are women continues to go unchallenged in legal circles.

oldsquare.co.uk/recognition-by-the-northern-ireland-high-court-of-a-shift-in-gender-recognition-robin-moira-white/

There was a link to the judgment in the same post.

www.judiciaryni.uk/sites/judiciary/files/decisions/SCO11509Final%20-%20Approved.pdf

Anewcreation "In opposition to what the Old Court opinion piece avers..." sorry I've missed this. I think I went through this (rather derailed) thread properly but didn't see this. Is it linked here?

"Incongruence is a humanistic psychology concept developed by Carl Rogers which suggests that unpleasant feelings can result from a discrepancy between our perceived and ideal self. The perceived self is how an individual views themselves and the ideal self is how an individual wishes they were."

The ICD-11 wording was changed from gender 'dysphoria' to 'incongruence' and moved out of the mental health section under pressure from WPATH but kept in as a 'sexual health' diagnosis for billable insurance funding purposes. Transvestic fetishism, however, remains a mental health disorder with other paraphilias.

'Incongruence' is a term already in use by psychiatrists. It already has a specific meaning which is somewhat different to the lay one or even to the Rogers' concept. As the judge's report indicates, psychiatrists are still the most likely people to be signing the first part of a GRC application.

'Mood incongruence', for example, is a term used to describe a serious symptom of bipolar disorder. It is a psychotic feature of the disorder wherein the person's belief or action, whether by hallucination or delusion, does not match with their mood.

So what might the court insisting on using the term 'gender incongruence' rather than 'gender dysphoria' mean medically to a psychiatrist? Dr Brady, the LGBT+ advisor, is not a psychiatrist but a Sexual Health and HIV consultant hence his equivocation in his evidence.

Encouraging the straight swap from 'dysphoria' to 'incongruence' may not, after all, be the promised land of de-stigmatising the condition.

"There were 134 reports of sexual assault in changing rooms over the two year period 2017 to 2018. Of these, 120 took place in gender-neutral changing rooms compared to just 14 in single-sex changing areas. A further 46 sexual assault allegations were made about attacks in other areas such as in the pool, in a sports hall or corridors. These are not included in the percentages.|"

fairplayforwomen.com/unisex-changing-rooms-put-women-in-danger/

Interestingly the article links to this largely unrelated one, about Northern Irish police training:

www.newsletter.co.uk/news/crime/director-group-hired-train-psni-dubbed-police-racist-oppressor-pigs-who-deserve-wall-2977743

While we're on the subject of the ongoing need for medical scrutiny in this area, I think the evidence from this Oxfordshire study deserves greater attention:

"Reasons for non-referral to a specialist centre included

being deemed not ready for transitioning (either determined by the individual or because the person was not currently living in the desired gender role),

being homosexual but not having gender identity disorder,

having an autism-spectrum disorder with a significant degree of impairment such that the real-life experience criterion was not met,

and seeking gender reassignment to facilitate or normalise paedophilia. This latter small group described gender reassignment as a means by which to increase their intimate contact with children, which they viewed to be more socially acceptable in a female role."

www.cambridge.org/core/journals/the-psychiatrist/article/gender-reassignment-5-years-of-referrals-in-oxfordshire/6B5F217162ABD9B3189F2EB82787034E

Having now read the 54 page judgement, (thanks for the direct links, nauticant) I agree CharlieParley with your analysis. Indeed, I am relieved that it is not actually the rip-roaring success activists are claiming.

If this was an attempt to bring in self-ID covertly, a la Dentons, by removing the need for a medical diagnosis, it did not work.

The court finds there should still be a medical diagnosis pre awarding a GRC, a process which has a necessary gatekeeping function and which has benefits for both the patient and wider community.

This from the judgement I thought was perceptive:

Indeed, there is an uneasy tension at the heart of the applicant’s case, namely that, on the one hand, she eschews any ‘medicalisation’ of the process for legal gender recognition but, on the other, contends that any necessary diagnosis (and presumably any consequent gender reassignment or gender confirming treatment) should be paid for on the NHS.

In opposition to what the Old Court opinion piece avers, the historic depathologisation of homosexuality is never going to be replicated for gender dysphoria/incongruence. No one needs any form of medical input to be same sex attracted.

This tension was also noted at the time of the Women and Equalities Committee Report, since one of the contributors to the Committee’s inquiry, the Gender Identity Research and Education Society (GIRES), noted that removal altogether from the ICD (as occurred with the depathologisation of homosexuality) was not an option, since gender dysphoria frequently requires medical interventions (see paragraph 192 of the Committee’s report).
Inclusion of gender incongruence in the ICD was also designed to ensure transgender people’s access to gender-affirming health care, as well as adequate health insurance coverage for such services. When there is plainly a medical aspect to some elements of gender transition, at least for some transgender individuals, the authorities are entitled to consider that there is some value in maintaining an element of consistency of approach across both processes.
('both processes' referring to the practice of needing 2 diagnostic reports from medical professionals, one of them a gender specialist and then always having a doctor on the gender recognition panel.)