What does it mean to 'live in a gender'?
I think the answer has to lie in the criteria used to satisfy a Gender Recognition Panel that the applicant "has lived in the acquired gender throughout the period of two years ending with the date on which the application is made"
GRA 2004, 2 (1) (b)
https://www.legislation.gov.uk/ukpga/2004/7/section/2
What are these criteria?
GRA 2004, 3 (6) (b) and (c)
3. Evidence
(6) Any application under section 1(1) must include—
(b) any other information or evidence required by an order made by the Secretary of State, and
(c) any other information or evidence which the Panel which is to determine the application may require
https://www.legislation.gov.uk/ukpga/2004/7/section/3
What this means in practice:
Evidence of living in your gender for the last 2 years
You’ll need copies of evidence to show that you’ve been living in your affirmed gender for the last 2 years.
Each piece of evidence should contain at least one of the following that matches up with your affirmed gender:
- a name
- a title, like ‘Mr’ or ‘Miss’
- a gender marker, like ‘male’ or ‘female’
There are no other specific requirements for this evidence, but try to find:
- evidence from different points over the 2 years, with roughly 1 piece of evidence for every 3 months
- at least one piece of evidence from the last 2 or 3 months
- evidence from a variety of different sources
The evidence can come from before you were diagnosed with gender dysphoria.
Examples of what you can send in include good quality photocopies or photographs of:
- your driving licence
- your passport
- identity cards, like workplace IDs, student IDs, railcards, health insurance cards, library cards or supermarket loyalty cards
- letters from solicitors, accountants, doctors, dentists or employers
- bank statements
- payslips, P60s and P45s
- benefit letters
- tax letters and documents, including council tax
- credit reports
- confirmation letters that you’re on the electoral register
- student loan statements
- utility bills, such as internet bills
- rental agreements
- academic certificates and documents
https://www.gov.uk/apply-gender-recognition-certificate/what-documents-you-need
In short, all that is needed to "live in a gender" seems to be as little as:
- a name that matches up with the gender
- a title, like ‘Mr’ or ‘Miss’ that matches up with the gender
- a gender marker, like ‘male’ or ‘female’
Even these can be waived and/or do not even need to be evidenced by "official" documentation.
Minutes of 2018 Gender Recognition Panel User Group Meeting
Judge Bennett: "Applicants will need to show some evidence that they have been living In their gender for the two years required by the Act. Letters from an employer. a manager, a doctor or school/college could be suitable to show that even though an applicant had not officially changed their name they were living In their gender."
Judge Bennett: "Letters could also come from an applicants job, DWP, HMRC,
changed passport, changed driving licence. Utility bills are also acceptable."
"[Redacted] noted that she had been worried about the list of documents but now understands they are Just examples and not demands.
Judge Bennett said that the panel recognise that one size does not fit all and some applicants are not able to provide as much evidence. Each application Is considered on its own merits.
Judge Bennett said that the Panel's administration team takes the position of suggesting to applicants that they provide more information; they don't require It from them before their application goes to the Panel."
"Judge Bennett said there are some common misconceptions about the Panel.
The first assumption - which Is wrong - is that you have to wait until the age of 18 before the two-year period of transition begins prlor to making an application, but In fact the transition can start from two years before 18."
In "GRC User Group Minutes 2005-2018"
https://sex-matters.org/wp-content/uploads/2024/06/GRC-user-group-minutes-2005-2018.pdf
That document is linked from:
"Applying for a gender-recognition certificate: the facts"
by Sex Matters
“The GRA is clear that an applicant must show they have been living In their gender for two years… The applicant does not need to send a large number of documents to show this; 2–3 Items per year should suffice.” (User group meeting, Leicester, 2018)
“Applicants will need to show some evidence that they have been living In their gender for the two years required by the Act. Letters from an employer, a manager, a doctor, school/college could be suitable to show that even though an applicant had not officially changed their name they were living in their gender…. Letters could also come from an applicant’s job, DWP, HMRC, changed passport, changed driving licence. Utility bills are also acceptable….. the panel recognise that one size does not fit all and some applicants are not able to provide as much evidence. Each application is considered on its own merits.” (User group meeting, Leicester, 2018)
https://sex-matters.org/wp-content/uploads/2024/06/Applying-for-a-gender-recognition-certificate.pdf
+++
The government highlighted that making a false declaration is a criminal offence punishable by imprisonment.
A fraudulent statutory declaration means that the person committed perjury at the time of making the declaration. It just has to be true that when making the declaration a person, in this case, "intends to continue to live in the acquired gender until death"
GRA2004 2 (1) (c)
https://www.legislation.gov.uk/ukpga/2004/7/section/2
Otherwise, anyone who has a GRC and later detransitions (ie. by changing their name, title and gender marker) could be prosecuted.
The Gender Recognition Panel has been asked how it would deal with circumstances when a male with a GRC fathers a child or a female with a GRC becomes pregnant and gives birth. eg.
Gender Recognition Panel User Group meeting minutes for 10th November in London and 25th November in Manchester (2015?)
8. We have seen evidence that the panel often issues directions when the applicant has recently had a child. If all other aspects of an application were perfect, would the panel issue a GRC to a pregnant man?
The Policy team stated that they were not aware of any consideration having been given to the conception of children in one's birth gender, or the relevance of such matters to applications for gender recognition certificates, during the Parliamentary debates that preceded the passing of the GRA.
The assessment of the facts against the conditions laid out in the GRA is a matter for the GRP in any particular case. If the GRP is satisfied that the applicant meets the statutory conditions, it must grant the application.
All applications are reviewed on a case by case basis. (Policy)
The President added that the GRP never discuss specific applicant's circumstances or specific applications at these meetings. . Each application is considered on its merits. This may include requesting additional information if a transgender man has recently had a baby or is pregnant at the time of the application. All applications must comply with Section 2(1)(b) and (c) GRA. Section 3(6)(c) allows the Panel to seek such other information or evidence which the Panel may require to determine the application. Applicants cannot fetter the power of the judiciary to seek further information to allow them to consider an application
https://sex-matters.org/wp-content/uploads/2024/06/GRC-user-group-minutes-2005-2018.pdf
I used Perplexity AI to unravel some of the legal issues and included IVF as that came up in the case of Freddy McConnell, when the Judge asked the Sec of State if he intended to prosecute Freddy and the Sec of State declined to do so.
Issue
Whether a false statutory declaration under section 2 of the Gender Recognition Act 2004 can be prosecuted under section 5 of the Perjury Act 1911, and whether later pregnancy, fatherhood, or IVF use by a GRC holder is itself enough to establish falsity or criminal liability.
Short answer
The relevant criminal offence is section 5 of the Perjury Act 1911. The prosecution would have to prove that the declaration made under section 2 of the Gender Recognition Act 2004 was knowingly and wilfully false in a material particular when made. Later parenthood or fertility treatment may be evidentially relevant, but it is not enough on its own to prove the original declaration was false.
Law
Section 2 of the Gender Recognition Act 2004 requires a statutory declaration that the applicant has lived in the acquired gender for at least two years and intends to continue to do so until death. Section 9 provides that, once issued, a full GRC changes the person’s gender for legal purposes, subject to statutory exceptions.
Section 5 of the Perjury Act 1911 makes it an offence to make, in a statutory declaration, a statement false in a material particular, if done knowingly and wilfully. The statutory test is therefore falsity plus deliberate dishonesty, not merely later inconsistency.
Application
The declaration under section 2 is a statement of present intention. To prove it false, it would be necessary to show that, when the declaration was made, the applicant did not genuinely intend to live in the acquired gender permanently until death and knew that the declaration was untrue.
Later pregnancy, fatherhood, or IVF treatment may be circumstantial evidence from which a court might infer something about earlier intention, but they do not automatically establish that the original declaration was false. That is especially so because section 9 expressly preserves the person’s parental status, so the statute does not treat later fatherhood or motherhood as inconsistent with recognition.
IVF point
The provisions identified above do not themselves create a criminal offence merely because a person with a GRC seeks IVF. Any criminal liability would have to arise under a separate, specific offence in the reproductive-law framework, not from sections 2 or 9 of the Gender Recognition Act 2004 or section 5 of the Perjury Act 1911 alone.
Conclusion
On the black-letter law identified here, the prosecution case would turn on proof of deliberate falsity at the time of the section 2 declaration. Later reproduction, including childbirth or IVF, is not by itself enough to prove fraud or to found a criminal offence under the provisions considered here.
References
Gender Recognition Act 2004, section 2:
https://www.legislation.gov.uk/ukpga/2004/7/section/2
Gender Recognition Act 2004, section 9:
https://www.legislation.gov.uk/ukpga/2004/7/section/9
Perjury Act 1911, section 5:
https://www.legislation.gov.uk/ukpga/Geo5/1-2/6/section/5/enacted