(v) Case law on the operation of section 9(1)
109. The implications of the change of gender “for all purposes” have been discussed in a number of cases. In R (C) v DWP the applicant challenged the policy of the Department of Work and Pensions to retain on its database information about her former (male) sex including her former titles and names. The Supreme Court rejected the argument that the policy was a breach of section 9(1). Lady Hale (with whom the other Justices agreed) said:
“23. The problem with this argument is that section 9(1) clearly contemplates a change in the state of affairs: before the issue of the GRC a person was of one gender and after the issue of the GRC that person ‘becomes’ a person of another gender. The sections which follow section 9 are designed, in their different ways, to cater for the effect of that change. …
24. There is nothing in section 9 to require that the previous state of affairs be expunged from the records of officialdom. Nor could it eliminate it from the memories of family and friends who knew the person in another life.”
110. Those passages were cited by the Employment Appeal Tribunal (“EAT”) in Forstater v CGD Europe [2022] ICR 1 when upholding a complaint of unlawful discrimination by a consultant whose contract had not been renewed because she had expressed gender critical views, that is to say, views supporting the contention that biological sex is immutable. At the end of a comprehensive and impressive judgment, Choudhury P addressed the question whether the presence of section 9(1) meant that the claimant’s views were not worthy of protection under section 10 of the EA 2010 and article 9 of the Convention:
“99. The effect of a GRC, whilst broad as a matter of law, does not mean that a person who, like the claimant, continues to believe that a trans woman with a GRC is still a man, is necessarily in breach of the GRA by doing so; the GRA does not compel a person to believe something that they do not, any more than the recognition by the state of civil partnerships can compel some persons of faith to believe that a marriage between anyone other than a man and a woman is acceptable. That is not to say, of course, that the claimant can, as a result of her belief, disregard the GRC; clearly, she cannot do so in circumstances where the acquired gender is legally relevant, eg in a claim of sex discrimination or harassment.”
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