Judges were told that it is a matter of “common courtesy” in cases involving transgender people to use the personal pronoun and name that a person prefers, and that reporting restrictions could be used to prevent disclosure. disclosure of a previous name.
In the updated guidelines, they were also reminded that there is a high level of transphobic hate crimes, which are believed to be vastly underreported, and trans people may fear going to court, especially when there is a risk of possible disclosure of their medical history.
The new notice is contained in the “Benchbook on equal treatment”, A 540-page guide from Judicial College, which is responsible for training county, crown and higher court judges in England and Wales. However, these guidelines are also used by sitting judges.
In one of the 12 chapters, titled Trans People, the document states, “It should be possible to respect a person’s gender identity and current name for almost any court and tribunal purpose, whether or not obtained legal recognition of its gender by means of a gender recognition certificate.
A person’s sex at birth or their transgender background should not be disclosed unless it is necessary and relevant to the particular legal process, he adds, before warning that there may be situations where a witness’s rights to refer to a trans person by pronouns corresponding to their assigned sex at birth conflict with the trans person’s right to privacy.
The guide indicates that gender identity issues could and should be addressed at an early stage of case management, for example in cases where a witness might not want or be able to testify about it. a way that preserves the privacy of the trans person.
“For example, a victim of domestic violence or sexual violence at the hands of a trans person can understandably describe the alleged perpetrator and use pronouns that match their sex assigned at birth, because this corresponds to the victim’s experience and perception of the events. “
In the “rare circumstances” where it is necessary during the proceedings to disclose a person’s previous name and transgender background, the guidelines indicate that the court may consider imposing reporting restrictions to prevent disclosure of such information. information.
He goes on to observe that the Equality Act 2010 appears to be limited in its explicit protection for trans people, in that the protected characteristic is defined as gender reassignment, adding: “However, its full interpretation and scope does not exist. ‘have not yet been tested in the appeal court. “
In a foreword, Lady Justice King, a judge of the court of appeal and president of the college, described the book as a “living document, constantly updated and modified to reflect changing circumstances and to incorporate the latest knowledge. most recent “.
In other sections, the document states that the need for rapid adoption of remote hearings during the Covid-19 pandemic “has magnified the difficulties faced by children and vulnerable adults during hearings.”
Regarding convictions during a pandemic, he advises: “It is permissible to take into account the current detention conditions resulting from the Covid-19 protective measures, when deciding whether or not to suspend a sentence.
“For example, the likely impact of a custodial sentence could be greater if the offender is likely to be confined in a cell for much longer periods than usual. This may be even more true for offenders with mental health problems or disabilities. “
The most recent edition of the document represents the first major revision in three years.