Updated to add additional information about situations where particulars for registration must be provided by a coroner
Photo by Mayron Oliveira on Unsplash
Following the horrific killing of Brianna Ghey, a 16-year-old trans girl, there has been significant discussion about her right to be gendered correctly on her death certificate. This has included a petition to posthumously grant her a Gender Recognition Certificate.
Several claims have been made during such discussion, which this article intends to debunk, in the hope that it will better inform the trans community, and also in the hope that it will draw the focus back to what really matters - the fact that Brianna's death certificate is being written in the first place.
Despite a huge misconception in the trans community to the contrary, it turns out you don’t need a Gender Recognition Certificate in order to be gendered correctly on your death certificate. What’s more, if you know someone who has been misgendered on their death certificate - you can apply to correct it. In this article, I explain this process, and also discuss its limitations compared to the Gender Recognition Certificate, and explain why a better alternative to a GRC is to remove legal sex markers entirely.
Death Certificate and Gender
When a person dies, in most cases, a doctor will issue a Medical Certificate of Death. This will outline details such as the cause of death. It also has a field for ‘gender’, to be filled in by the relevant doctor. I have been unable to find many details on how exactly this is determined - I can only presume that it follows the relevant NHS gender marker. This is not the death certificate, and as far as I know, is not affected by a Gender Recognition Certificate. However, it is a required document in order to register a death.
In most cases, the person entitled to register the death will be a relative or partner present at the death, or living in the sub-district where the death occurred. Otherwise, it is likely to be a person who was present at the death. The requirements regarding the registration of a death - the process in order to obtain a death certificate - are governed by the Births and Deaths Registration Act 1953.
The information in a death certificate is obtained by interview, with a legal requirement that the person gives information concerning the deceased to the best of their knowledge (s16(3)). The person registering is required to provide:
- full name and surname of the deceased
- sex
- date and place of birth
- occupation (even if retired)
- usual address
- in the case of a married person, the full name and date of birth of their spouse, and their occupation
The only document legally required for the registration of a death is the Medical Certificate of Death (s22(2)). This means that if you are the person registering the death, it is up to you to report truthfully, to the best of your knowledge, on the deceased’s gender.
You do not need to provide documents such as birth certificates in order to register a death, even if the registry office tells you otherwise. They are not essential, and you can refuse to provide them. It may be useful to bring any documentation with you which does show the correct name and gender. Therefore, you should be able to insist that a trans person be registered as their correct name and gender, without a Gender Recognition Certificate. Guidance to this effect can also be found via GIRES and Age UK. For a person registering a death to knowingly misgender a trans person would be in breach of their duty to give information concerning the deceased to the best of their knowledge, and so would be unlawful.
The process is different for unnatural deaths, such as in the case of Brianna Ghey. In such instances, there is no interview - rather, the coroner passes information directly to the registrar. It is the duty in such cases for the coroner to ascertain the particulars of the deceased - including their gender.
In my research, I have been able to find no legal basis on which the registrar or coroner can claim that they are required to register a trans person without a GRC’s sex in a certain way - this is absent from the Births and Deaths Registration Act 1953, the Coroners and Justice Act 2009, and the Gender Recognition Act 2004. This does not mean such assertions will never be made, a situation which is highly damaging to trans people and their loved ones who do not know the law in this area. However, it is likely that any statement to such effect is a misunderstanding on the part of the coroner or registrar.
Additionally, there is no obligation for the coroner to write down the correct sex for a deceased trans person - unless that trans person had a GRC. Without a GRC, the decision is the coroner’s alone. They are simply not prohibited from recording the person’s correct gender, even in the absence of a GRC.
A note on funerals
It is also important to note that death certificates have little relevance to what name a trans person will be buried under, or what name is used at their funeral. Such a decision is entirely for the person organising the funeral. Fortunately for Brianna, her family are loving and supporting, and so will properly honour her memory.
The person to whom the certificate of burial/cremation is given will be the person who registers the death. As outlined above, this will usually be your partner or a relative. With this in mind, it is important for trans people to ensure their wishes for their funeral are made clear before their death, preferably in their will. Though this is not legally binding, it is often followed. Beyond this, if you have relatives who you fear will intentionally reject your wishes, you may want to think about providing your partner with evidence to show that they are your partner, which they can to use to access the registrar quickly before others do. If you are single, you might ask a friend to take on the task of being your “partner” in such a situation. These are just possible suggestions. Other trans organisations, such as GIRES, may have more useful advice on how to approach this.
Correcting a Death Certificate
As previously stated, there are a lot of misconceptions about this issue in the trans community. This has unfortunately meant that a lot of trans people have had their gender recorded incorrectly on their death certificates. Additionally, many trans people’s deaths may have been registered by family members who denied their trans status. Fortunately, there is a way to correct information on a previously issued death certificate. The process, at the time of writing, costs under £100.
Anyone can apply to correct a death entry, although the General Register Office will usually need a letter from the person who gave information for the death to be registered before considering a correction. It will therefore be easier to complete this process if the person who originally supplied the information was misinformed, rather than malicious. However, in other cases, changes may be possible once the person who originally registered the death has passed away.
It is necessary to prove that the information on the registration was wrong. Without this, corrections cannot usually be made. Such documents should be valid or dated around the time of the death, and might include a:
- passport
- photocard driving licence
- bank, building society or credit card statement
- letter from a hospital or doctor
- letter from a government department
- utility bill
Therefore, if you can obtain a copy of such a document showing the correct gender, it should be possible to correct a death certificate. However, like with the update to a birth certificate made by the GRC, this is added only as an additional note - the original information recorded will always be available.
Why this isn’t enough
Whilst this will come as a great relief to many trans people, it still isn't satisfactory. Ultimately, our family and friends when we are gone should not have to fight with a cis registrar over whether they need to see our birth certificate or not to enter our sex onto a form.
This is where a Gender Recognition Certificate does come in useful. If our loved ones are able to provide a copy of our birth certificate to the registrar which genders us correctly, then the question need never arise. However, there in practice is nothing to stop malicious cis family members from intentionally omitting our transness, even if we have a Gender Recognition Certificate, by also failing to provide such birth certificates. Of course, to do so would be unlawful, but that does not make it impossible.
Gender Recognition Certificates also come with other consequences. As previously noted, your original recorded sex is never removed from the document - an additional note is merely added. This means your assigned gender at birth is fossilised forever. Beyond this, the Gender Recognition Act requires the registry office to maintain a list of all GRC holders - a document which would truly terrifying if disclosed to our enemies.
Rather than campaign for access to Gender Recognition Certificates, either in life or posthumously, instead trans people should demand something more radical - that abolition of legal sex markers. We do not need such markers on documentation for other protected characteristics, such as race, disability, or sexual orientation. The law is able to determine such facts as and when they become relevant, without need to refer to our passports and birth certificates. The easiest way to avoid misgendering people on their death certificates is to not gender them at all.
I hope that with this information in hand, the trans community can refocus its fight on a much greater justice than the potential of Brianna Ghey being misgendered on her death certificate - the fact that such a certificate is being written. The death of Brianna Ghey is a failure by our society at the deepest level. Fighting for her to be given the proper respect in death is not enough. Brianna's life should have been respected enough that her life was not taken in the first place.
NB This article does not constitute legal advice. You should consult a solicitor before undertaking any legal action.