An important new High Court ruling has confirmed that the desire to conceive a child does not preclude someone from obtaining a Gender Recognition Certificate.
What’s the legal background?
In the UK, the legal framework that allows trans people to legally correct their gender is governed by the Gender Recognition Act 2004 (GRA). The legislation enables trans men or women to apply for a Gender Recognition Certificate which legally changes their gender and triggers the reissue of their birth certificate.
The Act creates a Gender Recognition Panel (the Panel) which reviews applications from trans people for GRCs against statutory criteria, which include:
- two medical reports which confirm a diagnosis of gender dysphoria,
- the applicant having lived in their ‘acquired gender’ for two years before the application, and
- the applicant intending to live in their ‘acquired gender’ until their death.
The Panel is obliged to issue a GRC where the criteria have been met.
What happened in this case?
In this case, W (a trans man) had been declined a GRC by the Panel, and appealed to the High Court. He provided the required medical reports, and evidence that he had known he was male from a very young age and from the age of 17 had changed his name, pronouns and the way he presented, and taken gender-affirming hormone treatment. While medically transitioning, W had also been trying to conceive a child through IVF/sperm donation. His gender and fertility care was overseen by various clinicians to ensure he could live fully as male while also continuing to pursue his goal of building a family. However, the Panel said that the fact he had sought fertility treatment, of itself, meant that he could not have been living in his acquired gender for the past two years; and the fact that he intended to carry a pregnancy meant that he could not, of itself, intend to live in his acquired gender. W said that wishing to become a parent through pregnancy did not preclude him from living as male, and that, like the growing numbers of other trans men who became parents in this way, his intention was to be known as his child’s ‘father’ even if he had to be registered on the birth certificate as the mother.
High Court judge Mr Justice Hayden found that the Panel’s interpretation of the statutory criteria was wrong, and issued W with a GRC, allowing him to continue on his fertility journey while legally male.
In a sensitive and often moving judgment, the judge recognised that W’s desire to conceive and carry a child was not incompatible with living as a male and that his gender identity and his wish to become a parent were both important features of his identity. The judge said: ‘to require him to abandon either one for the other would be to dismantle and fracture the person he is’.
What’s the significance of the decision for trans parents?
The judgment is significant in re-affirming that the GRA was crafted as a ‘humane piece of legislation’ and that its purpose is to facilitate rather than restrict gender recognition. The judgment also makes clear that trans people do not need to surrender their capability or wish to become parents in order to obtain legal recognition of their gender identity.
The outcome is undoubtedly positive for a trans community facing ongoing challenges in the sphere of the law, and reflects the complex realities of life as a trans person.
However, tension with the principle that a person can both be trans and wish to conceive a child exists elsewhere in UK law. Most importantly, the current law is rigid and inflexible in how it applies the legal titles of ‘mother’, ‘father’ and ‘parent’. On the facts of this case, W can now proceed with fertility treatment with a view to carrying a pregnancy while legally male (as expressly endorsed by the High Court) and yet when he gives birth, he will be forced to be registered on his child’s birth certificate as the ‘mother’. Contrary to all the privacy protections afforded by the GRA 2004 this will reveal his gender history to anyone who requires sight of his child’s birth certificate for any reason (including school administrators and doctors’ receptionists). In R (McConnell and YY) v Registrar General (2020) the High Court said that a trans man with a GRC was the legal ‘mother’ of the child he gave birth to, and could not be registered on the birth certificate – as he proposed – as the father, parent or gestational parent. UK law aligns pregnancy with motherhood, leaving no room for trans men who give birth. Similarly, the Human Fertilisation and Embryology Act 2008 sets out prescriptive rules for non-both parents, assigning the parental titles of ‘father’ and ‘parent in very specific conception circumstances, and this means that non-birth parents who are trans are also sometimes forced to adopt inappropriate parental titles.
This is not by design. The Human Fertilisation Embryology Act (HFEA) entirely overlooked the capability of trans people to become parents after receiving a GRC, even though the HFEA was enacted in 2008, four years after the GRA 2004.
It is time that gap was addressed. It is clear that UK fertility law ignores the lived realities of trans people’s bodies and the fact that some trans men can and wish to gestate, and some trans women can and wish to produce sperm, for the purposes of building their own family. This highlights the incoherency of the current law and crucially provides insensitive and profound consequences for parents. This High Court judgment marks a positive step, but it also invites a broader reconsideration of how the law treats trans parents and reflects that trans people exist and are no different from anyone else when wanting to build their families.
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By Xander Gowler
