death. No competent, conscientious medical practitioner could produce a report on gender dysphoria (past or present) which did not refer to treatment received.”
86. She also recorded at para 24 of her judgment that counsel for the Secretary of State had told the court that where an applicant has not undergone any treatment, it is the Panel’s usual procedure to require the second report submitted by the applicant to explain why this is the case. She concluded (para 28) that given that the information was necessary to the decision to be taken and that its dissemination beyond the Panel was prohibited, the provision of the information was necessary and proportionate to the legitimate aim and that there was no breach of article 8.
(iii) Living in an acquired gender
87. Many of the judgments handed down in earlier cases addressing transgender issues emphasise the importance to the trans person who had brought the proceedings before the court of modifying their appearance so that they look like a typical person of their acquired gender. For example, Chief Constable of the West Yorkshire Police v A (No 2) [2004] UKHL 21, [2005] 1 AC 51 concerned a claim under sections 1 and 6 of the SDA 1975 by a trans woman prior to the coming into force of the GRA 2004. The issue was whether she could be refused appointment as a police officer because in the chief constable’s view she was not able to carry out intimate searches of either men or women. She could not search men because she presented as a woman and she could not search women because she was male as a matter of law. In her speech, Lady Hale said at para 61 that the applicant “has done everything that she possibly could do to align her physical identity with her psychological identity. She has lived successfully as a woman for many years. She has taken the appropriate hormone treatment and concluded a programme of surgery. She believes that she presents as a woman in every respect”. Similarly, in R (C) v DWP Lady Hale PSC recorded that the applicant in the proceedings before the court had undergone full gender reassignment treatment and surgery which included facial feminisation surgery “in [the applicant’s] words because it was ‘incredibly important’ to her ‘easily to “pass” as a woman.’”: para 3.
88. However, the requirements in section 2(1)(b) and (c) of the GRA 2004 have not been interpreted to require, for example, biological men to prove that they have modified or intend to modify their physical appearance so as to “pass” as a woman in order to establish that they have been “living as” women in the past and that they intend to do so until death.
89. The court was provided with guidance on completing the application form for a GRC issued by His Majesty’s Courts and Tribunals Service (rather than by the President of the Panel) (Reference T451). Section 5 of the guidance deals with “Time living in your
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