Kenneth Norrie – Trans Health Legal Issues

Professor Kenneth McK. Norrie
School of Law
University of Strathclyde
Gender Recognition Act 2004, c 7
◦ S. 9: Gender Recognition Certificate (GRC)
◦ Exceptions include titles, sport and gender-specific
offences – nothing about health care or services
◦ S. 22: prohibition of disclosure of information
(relating to GRC) obtained in “official capacity”
Gender Recognition (Disclosure of Information)
(Scotland) Order 2005 (SSI 2005 No 125)
◦ No offence under s. 22 if “health professional” makes
disclosure “for medical purposes” AND patient is
reasonably believed to have consented OR patient
“cannot give consent”.
Equality Act 2010
◦ S. 4: “protected characteristics”: age, disability, sex, sexual
orientation, race, religion and “gender reassignment”
◦ S. 7: “A person has the protected characteristic of gender
reassignment if the person is proposing to undergo, is
undergoing or has undergone a process (or part of a process)
for the purpose of reassigning the person's sex by changing
physiological or other attributes of sex”.
 (definition derived ultimately from EU’s Gender Directive
 This rather avoids the “intersex” person (Stair’s “hermaphrodite, or
other of dubious sort”)
◦ S. 16: it is unlawful discrimination for an employer to treat a
transgender person less favourably in terms of sick-leave.
◦ Sched. 3: Separate provision of services for each sex, and
services provided to one sex only, are not discrimination.
A v. Chief Constable of West Yorkshire Police
[2004] UKHL 21
The words “woman” and “man” in the Sex
Discrimination Act 1975 must be read:
“as referring to the acquired gender of a post-operative
transsexual who is visually and for all practical purposes
indistinguishable from non-transsexual members of that
Followed (in relation to pensionable ages):
◦ Grant v. UK (2007) 44 EHRR 1 (ECtHR)
◦ Richards v. Sec. of State for Work & Pensions [2006] All
ER (EC) 895 (ECJ)
◦ Timbrell v. Sec. of State for Work & Pensions [2010]
EWCA (Civ) 701 (English Court of Appeal)
World Professional Association for Transgender
Health (WPATH) Standards of Care (2011)
NHS Scotland Transgender Reassignment Protocol
NHSGGC Transgender Policy (2010)
None of the above requires the obtaining of a Gender
Recognition Certificate (though ambiguities arise
from use of term “gender status”).
Single-sex wards
◦ “Where inpatient wards are divided by sex
(female/male only wards), trans people will be
offered accommodation that matches the gender
in which they are currently living” NHSGGC Policy
◦ Separating trans patients in single occupancy
rooms is NOT acceptable:
 X v. Turkey 9th October 2012 (appl. 24626/09)
(breach of art. 3 for keeping gay prisoners in solitary
confinement away from other prisoners)
Gender-specific treatment
◦ Prostrate screening for trans women
◦ Breast screening for trans men (“Well Woman” clinic
services not available)
Gender reassignment surgery v. aesthetic
Facial feminisation, breast augmentation
Mastectomy, mammoplasty
Penectomy, Phalloplasty
Re Alex [2004] Fam CA 297 (Family Court of Australia)
◦ 13-year old child (recently commenced menstruation); strongly
self-identified as a boy from an early age; practical difficulties at
school (use of toilets, changing rooms etc)
◦ Hormonal treatment being considered (“no question of surgical
intervention at this stage”)
◦ Could Alex consent for himself?
◦ If not could court consent on his behalf (estranged parent being
unwilling to provide consent)?
◦ If so, was treatment in his best interests?
Alex could NOT consent on his own behalf
Doctors could provide him with hormonal treatment if this
was in his best interests
HELD: The proposed treatment was indeed in his interests
and therefore would be authorised by the court
Age of Legal Capacity (Scotland) Act 1991, s.2(4):
“A person under the age of 16 years shall have legal capacity to consent on his own
behalf to any surgical, medical, or dental treatment or procedure where, in the
opinion of a qualified medical practitioner attending him, he is capable of
understanding the nature and possible consequences of the procedure or treatment”.
Children (Scotland) Act 1995, s. 15(5)(b):
Parents lose right to consent once child acquires capacity to consent.
NHS Scotland Protocol prohibits genital surgery before 16 (while at the same
time recognising that the under 16 year old can consent on his or her own
behalf). Hormonal treatment may be provided pre-16.
Children with gender identity issues tend to grow up as gay adults;
adolescents with gender identity issues tend to grow up as transgender
◦ Cf the circumcision cases: Re J [2000] 1 FLR 571 and Re S [2004] EWCA Civ
In fact, services for the under 16 year old are not available in Scotland
(referred to Portland Clinic in London).
Both WPATH Standards of Care and NHS Scotland
Protocol require 12 months real life experience (RLE)
in new gender before surgery
◦ “The rationale for a preoperative, 12-month experience of
living in an identity-congruent gender role is based on
expert clinical consensus that this experience provides
ample opportunity for patients to experience and socially
adjust in their desired gender role, before undergoing
irreversible surgery”: NHS Scotland Protocol.
Gender Recognition Act 2004 requires 24 months life
experience in new gender before GRC can be issued
And GRC can be granted only to persons 18 years of
age or above.
Risks associated with estrogen treatment:
Risks associated with testosterone:
◦ thromboembolism (such as DVT)
◦ breast cancer
◦ liver dysfunction
◦ breast cancer
◦ uterine cancer
◦ liver dysfunction
Hormonal treatment can lead to irreversible changes
Genital surgery carries normal surgical risks, and destroys reproductive
Case law on informed consent:
◦ Sidaway v. Bethlem Royal Hospital [1985] AC 871(what the reasonable doctor would
◦ Moyes v. Lothian Health Board 1990 SLT 444 (ditto for Scotland)
◦ Chester v. Afshar [2004] 4 All ER 587 (what the reasonable patient would want
◦ Murray v. NHS Lanarkshire Health Board 2012 CSOH 123 (causation point from
Chester not followed by Lady Dorian)
R v. North West Lancashire Health Authority [2000] 1 WLR
◦ Health board’s policy was to not fund gender reassignment surgery
except in exceptional circumstances
Court held:
◦ Allocation of resources, including weighting of priorities, is for the
health authority
◦ Leaving “exceptional circumstances” undefined is entirely
◦ Giving gender reassignment surgery a low priority is not in
principle irrational
◦ BUT, applying the policy in a way that made it effectively
impossible for transgender people to access reassignment services
did not reflect medical judgment and was therefore irrational
◦ Therefore resource allocation policies quashed.
◦ BUT, article 8 ECHR imposed no positive obligations on health
authorities to provide gender reassignment treatment. Refusal of
treatment does not subject individual to inhuman or degrading
treatment contrary to article 3.

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