express words that abrogated that right, the question arose whether there was a necessary implication to that effect. He described the test to be applied in those circumstances as distinguishing between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included: “A necessary implication is a matter of express language and logic not interpretation”: para 45.
102. However, the stringency of the necessary implication test is not appropriate when considering the application of section 9(3) of the GRA 2004. The principle of legality described by Lord Hoffmann in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131, is not engaged here. This is not a case where the court is being asked to override a basic tenet of the common law or constitutional rights. We therefore reject the submissions made by Ms Irvine for the Scottish Ministers and by the EHRC that only express wording or necessary implication applying that stringent test can disapply the rule in section 9(1).
103. We also reject the submission that the carve out in section 9(3) only operates in respect of future legislation and not legislation, such as the SDA 1975, which was already enacted at the date when the GRA 2004 was enacted. Ms Irvine submitted that the GRA 2004 itself made exhaustive provision for how the rule was to apply to existing statutes. We do not accept that; section 9(3) refers to “any other enactment” and those words have a clear meaning.
104. It is true, as Mr Coppel appearing for the EHRC pointed out, that the explanatory notes for the GRA 2004 described section 9(3) as meaning that the general proposition in section 9(1) was subject to exceptions made by the Act itself “and, for the future, by any other enactment or subordinate legislation” (para 29). But that is not what section 9(3) says and we conclude that the notes are in error in this regard.
105. Limiting the application of section 9(3) to legislation enacted after the GRA 2004 might in some cases produce results adverse to the trans community. For example, R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559, [2021] Fam 77 concerned a judicial review claim by a trans man with a GRC who had given birth to a son following fertility treatment. The principal issue before the Court of Appeal was whether section 12 of the GRA 2004 which provides that a change of gender “does not affect the status of the person as the father or mother of a child” only precluded recharacterising someone’s status as regards children born before the issue of the GRC or whether it also determined the parent’s status if the baby was born after the issue of that certificate. The Court held it was both prospective and retrospective so that he had been correctly referred to as the child’s “mother” on the birth certificate.
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