Carpenter v Secretary of State for Justice

People who are of one gender may choose to live in the other gender. The Gender Recognition Act, 2004 (the Act) provides a statutory mechanism in certain prescribed circumstances for the gender recognition panel to grant a gender recognition certificate which records for a range of statutory purposes the gender in which the applicant lives. The Act provides by section 8 for a statutory appeal in certain circumstances to the High Court against a decision by the panel to reject an application for the grant of a certificate. The actual provision is as follows:

“8(1) An applicant to a gender recognition panel…may appeal to the High Court…on a point of law against a decision by the panel to reject the application.”

The present appellant, Ms Helen Carpenter, issued an appellant’s notice in the Family Division of the High Court on 21 May 2012 in which she seeks to pursue a statutory appeal under section 8 of the Act against two decisions of the gender recognition panel made on 25 August and 29 September 2011 respectively. She contends that each of those decisions amounted to “a decision by the panel to reject” her application.

The statutory respondent to such an appeal is the Secretary of State for Justice. He, for his part, contends that neither of those decisions involved, or amounted to, any rejection of the application, which indeed was finally and successfully granted on 21 November 2011. He contends, accordingly, that there simply is no statutory appeal within the meaning and effect of section 8 of the Act before the court at all. Even if he is wrong about that, the Secretary of State contends in any event that the appeal is significantly out of time since the later of the two decisions was dated 29 September 2011 and the appellant’s notice was only issued almost ten months later on 21 May 2012.

In order to put the point and issue into context, it is now necessary to make somewhat fuller reference to relevant parts of the Act. It is important to appreciate that the scheme and purpose of the Act is to provide a means for legal recognition that a person of one gender lives in the other gender, provided the requirements of section 2(1) of the Act are satisfied. The Act does not necessarily require before a gender recognition certificate is granted that the person has undergone surgery or other forms of treatment to modify their sexual characteristics, although, of course, some people do choose to do so. Section 1(1) provides that:

“A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of -

(a)

living in the other gender…”

Section 1(2) provides that:

“In this Act “the acquired gender”, in relation to a person by whom an application under sub-section 1 is or has been made, means -

(a)

in the case of an application under paragraph (a) of that sub-section, the gender in which the person is living…”

Section 1(3) provides that an application under sub-section (1) is to be determined by a gender recognition panel; and section 1(4) provides that Schedule 1 to the Act, which makes provision for gender recognition panels, shall have effect.

Actual criteria for the grant of a certificate are enumerated in section 2(1) which provides that:

“In the case of an application under section 1(1)(a), the panel must grant the application if satisfied that the applicant -

(a)

has or has had gender dysphoria,

(b)

has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

(c)

intends to continue to live in the acquired gender until death, and

(d)

complies with the requirements imposed by and under section 3.”

Very importantly, section 2(3), upon which Mr Rory Brown and Mr Christopher Kelleher, counsel on behalf of the appellant, place very great reliance, provides that:

“The panel must reject an application under section 1(1) if not required by sub-section (1) or (2) to grant it.”

Section 3 of the Act makes provision as to the evidence which must be included with an application under section 1(1)(a) for a gender recognition certificate. Sections 3(1) and (2) make provision for reports by suitably qualified medical practitioners or psychologists as to “details of the diagnosis of the applicant’s gender dysphoria”. Section 3(3) makes further provision in a case (which, as I have already stressed, is not every case) in which an applicant has undergone, is undergoing or plans to undergo treatment to modify sexual characteristics. It provides as follows:

“And sub-section (1) is not complied with in a case where -

(a)

the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics or

(b)

treatment for that purpose has been prescribed or planned for the applicant, unless at least one of the reports required by that sub-section includes details of it.”

I will make further reference to some additional statutory provisions at the appropriate point of this judgment, but I have now sufficiently described the scheme and purpose of the Act to set the context in which now briefly to narrate the relevant facts.

The appellant was born male in September 1950. It follows from that that she attained the age of 60 in September 2010. Under the relevant legislation, a woman attaining the age of 60 at that date was entitled to a state pension, although a man was not so entitled until the age of 65. It is clear from material that has been provided that for an appreciable time the appellant had gender dysphoria, that is to say, a strong personal wish or need to live as a woman. She had a number of meetings with, amongst others, a specialist consultant psychiatrist, Dr James Barrett. This culminated in her undergoing gender reassignment surgery on 14 October 2005. It is not necessary or appropriate in a public judgment to specify more particularly the forms and nature of that surgery.

Some time after she attained the age of 60 in September 2010, Ms Carpenter applied as a female person for her state old-age pension. She was informed that if she wished to be recognised in her acquired gender as a woman she must apply for a gender recognition certificate. On 12 May 2011 she duly applied in the prescribed form to the gender recognition panel for the grant of such a certificate under the Act. Shortly afterwards, she submitted medical reports from the consultant psychiatrist, Dr Barrett, and from her GP, Dr Susan Ostick, and it appears from another doctor, Dr Thomas.

As already mentioned, Schedule 1 to the Act makes provision in relation to gender recognition panels, and paragraphs 6(3) and (4) of the schedule clearly contemplate that the panel will determine applications in private and will normally do so without any formal hearing. Thus it was that, on 25 August 2011, two panel members clearly gave first consideration to the applicant’s application. The outcome of their deliberations that day is recorded in a formal document (which is clearly following a pro forma layout) which is analogous to a court order giving written directions. So far as is material, it reads:

“Directions

Helen Carpenter shall provide a report from a registered medical practitioner providing details of the surgery and treatment she has undergone to change sexual characteristics or is planned.

Reasons

The reports of Dr Thomas and Dr Ostick do not contain details of surgery or treatment that Helen Carpenter has had or is planned to change sexual characteristics.”

Pausing there, the panel already knew that this applicant, Ms Carpenter, was not a person who was merely living in the other gender but was one who had actually undergone treatment for the purpose of modifying sexual characteristics. They accordingly clearly had in mind the requirements of section 3(3) of the Act, which I have quoted above, and the need for at least one of the supporting reports to include “details” of the treatment. Clearly, receipt of those directions and reasons puzzled, and indeed caused some distress and frustration to Ms Carpenter. In the first place, the reasons made no reference to the report of Dr Barrett dated 24 May 2011, which she had already submitted to the panel as part of her application. That report, which is now at bundle pages 136 and 137, in fact gave a quite considerable history of the meetings between Dr Barrett and Ms Carpenter over several years, and referred on the second page to the surgery that she had undergone. The report says that during 2004 Dr Barrett and another colleague had considered that Ms Carpenter would be a suitable person for gender reassignment surgery and continues:

“I reviewed her in January 2006. She had undergone gender reassignment surgery on 3 August 2005. This would have amounted to:…”

The more precise forms of surgery are then set out. Pausing there, I understand that the reference by Dr Barrett to the surgery being on 3 August 2005 was in fact mistaken. The correct date was, as I earlier said, 14 October 2005, although nothing turns on that difference in dates.

What Ms Carpenter did in response to the directions of 25 August 2011 was submit to

After that report was submitted to them, the gender recognition panel (differently constituted, with one common panel member, but the other a different a panel member) met again on 29 September 2011. Again, they made or issued directions in the same standard pro-forma. These directions read or provide as follows:

“Directions

Full details of the gender reassignment surgery that the applicant has had are still required. A short letter from Mr Berringer with these would be sufficient. Alternatively, a report from the GP with the details would suffice, taken either from the notes or from examination.

Reasons

The further report from the applicant’s GP does not give details of the surgery she has had. In order to comply with the statutory requirements, these are necessary.”

Pausing there, it is obvious from the language of those directions and reasons that the panel again had in mind the requirements of section 3(3) of the Act that where an applicant has undergone treatment, as this applicant had done, then at least one of the reports must include “details” of the treatment. The GP, Dr Ostick, had said in a general way that examination revealed to her that “gender reassignment surgery” had been undertaken, but she had gone on to say that she did not have “the exact details of [the] operation”. It seems, therefore, that in the view of the panel they still needed more precise details as to the actual operation which had taken place than the GP was able to provide. As a result, Ms Carpenter then obtained from the surgeon, Mr Berringer, a “medical report pro-forma for gender recognition” which he completed and signed on 20 October 2011. That answered “yes” to the question, “Has your patient had surgical treatment for the purpose of modifying his or her sexual characteristics?”; and in answer to a question to, “List the specific surgical procedures that your patient has undergone for purposes of modifying sexual characteristics”, listed with some specificity a number of surgical procedures. I mention that the listed procedures are almost identical (perhaps with a little more specificity in one respect) with those that Dr Barrett had said in his letter of 24 May 2011 that the surgery “would have amounted to”.

Informed as they now were by that report from Mr Berringer, on 21 November 2011 the gender recognition panel did grant to Ms Carpenter a full formal gender recognition certificate pursuant to section 1 and the Act generally. It might have been thought that the matter would there rest, subject of course to the right of Ms Carpenter to make any complaints that she wished to make, and indeed, as she did make, with regard to the manner in which her application had been dealt with. She feels strongly that she was put to inconvenience and some frustration and distress as to the somewhat delayed progress of her application. Further, she feels that the date from which she was able to obtain and receive a state pension as a woman was unnecessarily and avoidably delayed by the process. She continued to correspond with the panel, and on 24 April 2012, Mr Jeremy Bennett, the president of the Gender Recognition Panel, wrote her a letter, now in the bundle at pages 17 to 19. It is of some length. Mr Bennett is at pains to say that he cannot enter into discussion about decisions taken judicially by other members of the panel; but he does reveal that he was himself a member of the panel which considered the application during August 2011 and made the first of the two directions rulings. By his letter written many months later, he does throw some light on why it was that the panel did not at that stage consider that the material in the report of the psychiatrist, Dr Barrett, was sufficient. He says in his letter:

“The panel was not satisfied that you had produced evidence to meet the requirement of section 3. There was a report from Dr Barrett giving details of the diagnosis of gender dysphoria. In the penultimate paragraph he confirms that gender reassignment surgery has taken place. He is unable to state as a fact what surgical procedures were undertaken and uses the term, ‘This would have amounted to’. The panel took this to be an assumption rather than a statement of facts. Neither the letter from Dr Thomas…or from Dr Ostick…give details of the surgical procedures undertaken. It was the opinion of the panel at that stage that the requirements of section 3 were not met.”

Pausing there, it does seem, therefore, from that letter written many months later, that the particular reason why the panel felt unable to grant a certificate during August 2011 was the use by Dr Barrett of the phrase “this would have amounted to”, rather than actual positive evidence of the surgery which had actually taken place.

Ms Carpenter therefore lodged the present statutory appeal under section 8 of the Act. For the court to be able to entertain any such appeal, she has to demonstrate that one or other or both of the decisions of 25 August and 29 September 2011 amounted to “a decision by the panel to reject the application”. Before I consider further the arguments and submissions of counsel on that point, it is now necessary to say a little more about the panel and its functions, powers and duties.

As I have already mentioned, Schedule 1 to the Act has effect with regard to the panels. Paragraph 1(1) of the schedule makes provision for the Lord Chancellor to “make appointments to a list of persons eligible to sit as members of Gender Recognition Panels”. I emphasise there the word, “sit”. Paragraph 1(1)(A) provides that such appointments may only be made with the concurrence of all of the heads of the legal systems of England and Wales, Scotland and Northern Ireland. Paragraphs 1(2) and (3) make provision for panel members to have either a relevant legal or a relevant medical qualification. Paragraph 4 requires that a panel must include at least one legal and one medical member. Paragraph 6 is headed “Procedure”. Paragraph 6(3) provides that panels are to determine applications in private. Importantly, to my mind, paragraph 6(4) provides that “a panel must determine an application without a hearing unless the panel considers that a hearing is necessary”.

Pausing there, it seems to me clearly implicit within that subparagraph that although there is a clear test of necessity, a panel has a judicial, or quasi-judicial, power and duty to consider whether or not “a hearing” is necessary. Plainly, if they do consider that a hearing is necessary, then there would have to be postponement for a sufficient period to make the necessary administrative arrangements for a hearing and for the attendance of the applicant and/or his or her representative and/or any other relevant person.

Paragraph 6(6) provides that “panels must give reasons for their decision”. If a panel considered under paragraph 6(4) that a hearing was necessary, that would amount to a decision for which, under paragraph 6(6), they would have to give their reasons. So, a decision under paragraph 6(4) to postpone final determination of an application until after a necessary hearing, is one which should have to be recorded in writing with reasons given in a very similar way to the two directions decisions that were given in the present case.

I mention for completeness that paragraph 6(5) of Schedule 1 provides that “the President may, after consulting the administrative justice and tribunals council, give directions about the practice and procedure of panels”. Mr Brendon McGurk, counsel on behalf of the Secretary of State for Justice, has told me that it does not appear that the President has as yet given any published formal directions about the practice and procedure of panels in elaboration of what is contained within the Act.

I turn back now to section 3(6) of the Act itself. This provides as follows:

“(i)

Any application under section 1(1) must include - (a) a statutory declaration as to whether or not the applicant is married …, (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,

(ii)

and may include any other information or evidence which the applicant wishes to include.”

Pausing there, Mr McGurk places strong reliance on the provisions of section 3(6)(i)(c). Patently, although the overall language of that subsection refers to what the application itself “must include”, the panel could not be in a position to require any information or evidence unless and until an application has already been made to it. Accordingly, the effect of section 3(6)(i)(c) must be to relate to some “other information or evidence” which the panel, being already seized of an application, considers it requires. This, in turn, needs to be considered in conjunction with section 3(8) which provides that “if the panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so”. Accordingly, Mr McGurk strongly stresses that within the scheme of section 3 itself, the Act contemplates that, at a stage later than the making of the application, the panel may require other or further information or evidence, although if they do they must give their reasons for so requiring it. He submits, therefore, that the two sets of directions of 25 August and 29 September 2011 are no more and no less than the panel exercising its power and duty under section 3(6)(c) to require further or other information or evidence, and contain as section 3(8) requires, their reasons for so requiring it.

On behalf of the appellant, however, Mr Brown and Mr Kelleher strongly submit that each of these decisions themselves involved the panel rejecting the application within the meaning of, and so as to trigger a statutory appeal under, section 8(1) of the Act. In support of his argument Mr Brown first relied upon the various definitions of the verb “reject” in the Oxford English Dictionary. I have to say that to my mind the word “reject” is one of those ordinary English words in routine usage which courts of course need to construe within their statutory context, but ought not to need to resort to a lexicographer’s definition for the purpose of doing so. Nevertheless, since Mr Brown refers to it, I will cite the principle meanings given by the dictionary to the verb. They are (1) to refuse to recognise, allow, acquiesce in, submit to, or adopt … (2) to refuse to have or take for some purpose; to set aside or throw away as useless or worthless, (3) to refuse (something offered); to decline to receive or accept … (6) to repel or rebuff; to refuse to accept, listen to, admit, etc, (7) to refuse to grant, entertain, or agree to (a request, proposal etc) …” He submits that by not there and then granting the application in either August or September 2011, the panel were thereby rejecting it, since at that point they had not granted, entertained or agreed to it.

The second submission of Mr Brown and Mr Kelleher focusses in particular upon the language of sections 2(2) and (3) of the Act. Section 2(3) of the Act this provides that “the panel must reject an application under section 1(1) if not required by subsection (1) … to grant it”. Their submission, as I understand it, is that really on any occasion when a panel is giving any consideration to an application, it is forced by the language of section 2(3) either to grant it or to reject it. They submit, as I understand it, that there is no intermediate stage or ground. If, as the panel were not prepared to do during August and September, they did not grant the application, then they were required there and then to reject it and must be taken to have done so.

Their third submission is to stress that, as a matter of fact, Ms Carpenter was in a state of limbo, as Mr Brown put it, during the period from late August until November 2011. She did not know what she had to do in order to enable her application to succeed. He correctly points out that she wrote a number of increasingly frustrated letters during October 2011 to which at the time there was no reply.

I am unable to accept these submissions of Mr Brown and Mr Kelleher, attractively though they were argued. It seems to me, first of all, that it is quite clear from the scheme of the Act and in particular Schedule 1 to the Act, and those parts of it which I have highlighted, that the gender recognition panel is a judicial or quasi judicial body. The schedule refers to the panel “sitting” and “hearing” applications. The panel is established by the Lord Chancellor with the concurrence of the heads of the relative legal systems. Everything about the schedule contemplates and depicts a judicial or quasi-judicial body.

As I have said, paragraph 6(4) of the schedule clearly contemplates the panel being able to make a judicial or quasi judicial decision that a hearing is necessary, and to impose the inevitable resulting delay and inconvenience while administrative arrangements are made. As Mr McGurk has stressed, section 3(6) clearly contemplates that the panel, acting judicially or quasi judicially, may require additional evidence or information. It seems to me, therefore, that these decisions and directions which the panel made and issued on 25 August and 29 September are precisely analagous with similar directions-type hearings or orders in other forms of judicial or quasi-judicial decision making. Every single day, courts up and down the land are faced with substantive applications within which they may first decide that certain directions have to be given and complied with before the substantive issue can be substantively considered. The making of such directions in no way or sense amounts to “rejecting” the substantive application. Rather, they are a step in the direction of determining that application.

It may of course be that the panel was being unduly technical in one or other or both of the decisions of 25 August or 29 September, in requiring a first-hand report from the surgeon, Mr Berringer; and it may be that the construction which Mr Bennett was later to put in his letter of 24 April 2012 upon the precise language used by Mr Barrett in his letter of 24 May 2011 was somewhat pedantic. Mr Barrett had used the phrase “this would have amounted to”. If he had chosen simply to say “this amounted to”, then it may be that the application would have been finally granted as early as August. It may also be that the reasons, in particular in the directions of 25 August 2011, were too concise and opaque, in particular by not making any reference to the relatively detailed report that had already been filed by Dr Barrett. But those are criticisms which may be made of the decision making process. They do not at all add up to saying that in either of those decisions the gender recognition panel rejected Ms Carpenter’s application.

In my judgment, therefore, they never did reject her application. Indeed, in November 2011 they granted it. Accordingly, the criterion in section 8(1) of the Act for a statutory appeal are simply not met in this case, and I hold that there was no decision by the gender recognition panel to reject the applicant’s application. Accordingly, no appeal has been validly brought under section 8 of the Act; and accordingly these proceedings upon the appellant’s notice which was issued on 21 May 2012 are now finally concluded. That of course is sufficient completely to dispose of these statutory appeals.

If, however, I am wrong in those conclusions and in fact the panel did, on one or both of the occasions, reject the application, then the second point raised by Mr McGurk on behalf of the Secretary of State for Justice is that in any event the appeal was brought many months out of time. This raises a somewhat moot question as to whether the relevant rules are the Family Procedure Rules 2010 or the Civil Procedure Rules. Undoubtedly the makers of the Family Procedure Rules considered and contemplated that appeals under the Gender Recognition Act 2004 fall to be made and considered under those rules. That is clear from the language of paragraph 2.1 of Practice Direction 30A to the Family Procedure Rules, which makes express reference within the paragraph to “appeals under section 8(1) of the Gender Recognition Act 2004 …” Further, there is a whole section within paragraphs 5.27 to 5.30 of that Practice Direction which is dealing expressly with “appeals under section 8(1) of the Gender Recognition Act 2004”. If indeed the relevant rules are the Family Procedure Rules, then the time limit for filing an appellant’s notice is 21 days after the decision against which the appellant wishes to appeal (see rule 30.4(2)(b))

On the other hand, a statutory appeal of this kind appears arguably to fall firmly within the provisions of the Practice Direction to Part 52 of the Civil Procedure Rules. Mr McGurk submits that it is altogether outside the scope of Part 52 because Part 52.1(4) provides that “this part is subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal”. He submits that there is a practice direction which sets out special provisions with regard to this category of appeal; namely the practice direction 30A to the Family Procedure Rules to which I have referred. That, however, begs the question whether the reference in CPR rule 42.1(4) to “practice direction” means literally any practice direction, or is a reference to a practice direction made under the CPR.

Within the Practice Direction to Part 52 of the CPR itself, there is at section II “general provisions about statutory appeals and appeals by way of case stated”. Paragraph 17.1 of that practice direction, under a heading “Statutory Appeals”, provides “this part of this section (1) applies where under any enactment an appeal (other than by way of case stated) lies to the court from a minister of state, government department, tribunal or other person (statutory appeals) …” Undoubtedly an appeal under section 8 of the Act is an appeal “under any enactment”. It does lie “to the court” and it is from a “tribunal or other person”.

Assuming for a moment that the CPR rather than the Family Proceeding Rules are the relevant rules, then the primary time limit is fixed by paragraph 17.3, namely 28 days. Clearly in the present case, nothing at all turns on the difference between 21 days in the Family Proceedings Rules and 28 days in the Civil Procedure Rules, because in the present case the appellant’s notice was filed not days but many, many months after the decision complained of. However, if the relevant rules are the CPR rather than the Family Proceedings Rules, then paragraph 17.4 of the practice direction is arguably in point and is heavily relied upon by Mr Brown. That provides as follows

“(i)

Where a statement of the reasons for a decision is given later than the notice of that decision, the period for filing the appellant’s notice is calculated from the date on which the statement is received by the appellant.”

Mr Brown fastens upon the letter from Mr Jeremy Bennett, the president of the Gender Recognition Panel, dated 24 April 2012 from which I have already quoted. He says that that letter amounts to “a statement of the reasons for a decision” and that the appellant’s notice was filed within 28 days of receipt of that letter by Ms Carpenter.

Even if the relevant rules are the CPR, I simply cannot accept that submission by Mr Brown, attractively though it was developed. The fact of the matter is that, by paragraph 6 of Schedule 1 and also by section 3(8) of the Act itself, the panel were required to give the reasons for their decisions. They did do so. Their reasons appear on the face of the directions decisions of 25 August and 29 September respectively themselves. The reasons may be opaque. They may be short. They may be inadequate, but they are the reasons. So, even if the CPR are the relevant rules, this simply is not a situation in which a statement of the reasons for a decision was given later than the notice of the decision.

Quite clearly any time limit, whether under the Family Proceedings Rules or the Civil Procedure Rules, was triggered and began to run as soon as Ms Carpenter received the directions decisions of 25 August and 29 September 2011 respectively. Frankly, any time limit had long since expired many months before the president, Jeremy Bennett, chose to write his letter of 24 April 2012. It is true that in a part of that letter which I have already quoted, he elaborates on the reasoning behind the decision on 25 August 2011 to which he himself had been a party, but I simply cannot regard some such reasoning, volunteered many months later by a member of the panel, as amounting to “a statement of the reasons for the decision”. The reasons for the decision were, and remain, those recorded on the contemporary documents.

In the circumstances it is unnecessary for me to decide and rule whether the relevant rules are indeed the Family Proceedings Rules 2010 or the Civil Procedure Rules, for whichever are the relevant rules, these attempted appeals were brought many months out of time. Anything I might say, therefore, as to which is in truth the correct rule would be obiter, and in my judgment it would be unwise and inappropriate of me to express an opinion. There does seem to be some tension between the two sets of rules and their accompanying practice directions. As I observed during argument, the Secretary of State for Justice is very well placed to draw that tension to the attention of the relevant rule-making bodies and to resolve any ambiguity. But at all events, even if I am wrong in my decision that there simply is no valid statutory appeal before the court, I would in any event dismiss these appeals on the grounds that they were brought many months out of time.