AB, Regina (On the Application of) v Secretary of State for Justice and Another: Admn 4 Sep 2009

The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the Claimant had lived in her acquired gender for the requisite two year period prior to her application for a gender recognition certificate. While she was detained in the male prison estate, the Gender Identity Clinic treating her would not approve her gender reassignment surgery, requiring a period living ‘in role’ as a woman within a female prison.
Held: ‘When issues so close to the identity of a prisoner as here, so intimately concerned with her personal autonomy, the deployment of resources as a justification for the infringement of such rights must be clear and weighty in order to be proportionate. Here they are neither.’ The decision did infringe the claimant’s human rights. The decision also failed under judicial review, the respondent having failed properly to take account of all the evidence and not recognising that his decision would prevent the claimant getting the surgery required.

Elvin QC J
[2009] EWHC 2220 (Admin), [2009] HRLR 35, [2010] 2 All ER 151, (2010) 11 BMLR 70
European Convention on Human Rights 8, Gender Recognition Act 2004 9
England and Wales
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedDickson and Another v United Kingdom ECHR 15-Dec-2007
(Grand Chamber) The complainants were husband and wife. They had been married whilst the husband served a sentence of life imprisonment. They had been refused suport for artificial insemination treatment.
Held: The claim succeeded. The refusal . .
CitedGoodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
CitedWood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
CitedL v Lithuania ECHR 11-Sep-2007
. .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Judicial Review

Updated: 01 November 2021; Ref: scu.374737