Nigel Hanson recounts how the courts have viewed gender recognition over time

Baroness Hale of Richmond gives a useful overview of relevant case law in her speech in A's case.

It showed how Mr Justice Ormrod's fixed approach to gender in Corbett is seen to have had a lasting effect, even though the Sex Discrimination Act 1975, passed in anticipation of the Equal Treatment Directive, prohibited sex discrimination.

The Court of Appeal in R v Tan [1983] QB 1053, for example, readily applied Corbett to gender-specific criminal offences.

The European Commission on Human Rights took a progressive view as early as 1979 in D Van Oosterwijk v Belgium (Applic No 7654/76), in finding that the refusal of Belgium to enable registers of civil status to reflect lawful sex changes violated article 8 of the convention.

But the European Court of Human Rights decided in 1986 that the UK's refusal to issue a new birth certificate to a post-operative transsexual was not a breach of article 8 (Rees v UK (1986) 9EHRR 56).

The court took the same view in Cossey v UK (1990) 13 EHRR, but only by a majority of ten to 8, with powerful dissent from Judge Martens.

He said: 'Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality...

In doing so, he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to.'

P v S and Cornwall County Council (1996) ECR 1-2143 was a landmark decision that led to the Sex Discrimination (Gender Reassignment) Regulations 1999.

The applicant, backed by Press for Change, complained of sex discrimination after being dismissed from her job as a manager in an educational establishment because she was undergoing male-to-female gender reassignment treatment and surgery.

The European Court of Justice said tolerating such discrimination would be tantamount to a failure to respect the dignity and freedom to which she was entitled.

Members states were allowed some leeway in interpretation, known as the 'margin of appreciation'.

But the writing was on the wall and by 1998, in the words of Lady Hale, the UK was said to be alone in Europe in 'allowing (and even funding) gender reassignment treatment and surgery but failing to recognise its results'.

In 2002, there was a further wake-up call in Goodwin v UK (2002) 35 EHRR 18.

A male-to-female claimant sued over having to pay national insurance contributions until she was 65, not 60, like other women.

She was also paying car insurance premiums that were too high and was unable to get a free bus pass at 60.

She complained of taunts at work and was unable to pursue a claim for sexual harassment in an employment tribunal because she was still considered in law to be a man.

The European Court of Human Rights, sitting as a Grand Chamber, ruled unanimously that the UK was in breach of articles 8 and 12.

Then came the marriage case of Bellinger v Bellinger [2003] 2 AC 467, in which Corbett was affirmed on the basis that legislative, not piecemeal, reform was desirable.

Lord Nicholls said: 'Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment.

The anatomical appearance of the body can be substantially altered by forms of treatment which are permissible as well as possible.

'It is in these changed circumstances that society is now facing the question of how far it is prepared to go to alleviate the plight of the small minority of people who suffer from this medical condition.'

He added: 'The issues are altogether ill-suited for determination by courts and court procedures.

They are pre-eminently a matter for Parliament, the more especially when the government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.'

Earlier this year, pension rights of transsexuals were clarified in KB v NHS Pensions Agency [2004] IRLR 240.

An NHS employee successfully claimed that the denial of an NHS widower's pension to the female-to-male transsexual with whom she had celebrated what would have been a marriage had it been possible in domestic law, amounted to sex discrimination contrary to the Equal Pay Directive.