Landmark ruling in Romania transgender extradition case
Mary Westcott acted for a transgender Roma woman who has won her High Court appeal against extradition. The case confronts thorny issues involving the ordinary meaning in English law of “sex” and “gender” and contrasting that with Romania’s apparent unwillingness to accept the Appellant’s chosen gender identity as a transgender woman.
The judgment is of particular significance because of the comprehensive review of transgender issues as they are understood in the UK as opposed to in Romania. For example, material from the Romanian Courts and Prison Administration consistently “deadnamed” the Appellant (i.e. using her male birth name) and proposed to place her with male prisoners. Romanian authorities agreed to perform a risk assessment only at the end of a 21-day quarantine period in a male prison in Bucharest. The court accepted there was a consequent “protection gap” on her admission to prison after extradition to Romania.
The case is a tour de force of decisions of the European Court of Human Rights on transgender issues, in particular applied to Romania. The judgment also cites the laudable recognition of trans acceptance in Denmark, the Appellant’s previous country of residence before moving to the UK.
The Judge (Mr Justice Fordham) used the most up to date Equal Treatment Benchbook, the guidance given to judges in the UK, the Equality Act 2010 and decisions of the UK Supreme Court (R (Elan-Cane) v Secretary of State for the Home Department  UKSC 56  2 WLR 133). The Court found the ordinary meaning of the word “gender” (as opposed to “sex”) in the statute includes “transgender” (S13 of the Extradition Act 2003).
The court found it would be “grossly outdated and stigmatising” to pathologise gender identity as a form of health condition.
The court agreed that its task when considering protected characteristics, including trans identity and ethnicity, is not limited to an assessment of the potential decisions of a sentencing court, but could include consideration of the supervision of a criminal penalty. This would include the risk of placing someone in solitary confinement on account of gender alone.
The court’s decision to allow the appeal was based on Article 8 of the ECHR due to a disproportionate interference with the Appellant’s right to private and family life. It was based on “a special combination of circumstances” of the transgender question as well as the low-level seriousness of the alleged offending (shoplifting). It also included consideration of fresh evidence on appeal and identified significant errors by the first instance Judge (District Judge Griffiths).
In addition, this was the High Court’s first consideration of the Committee for the Prevention of Torture’s Report criticising Romania’s prison estate (published 14 April 2022) albeit the court’s conclusion on Article 8 meant no formal decision was reached on Article 3, the prohibition of torture and ill-treatment.