The President of the Family Division, Sir Andrew McFarlane (the most senior first-instance family court judge in England and Wales) has ruled in the case of Re TT on the rights of transgender parents and their children under UK law.
The case involved an application by a trans man, Fred McConnell, whose anonymity was unusually lifted by the court because he made a documentary for the BBC about his story (‘Seahorse: the father who gave birth’). Mr McConnell conceived his son through fertility treatment using donated sperm, and he carried and gave birth. At the time he conceived, he was legally a man, having been granted a gender recognition certificate which legally changed his gender and birth certificate from female to male. When his son was born he therefore asked to be registered as his child’s ‘father’ (or ‘parent’) rather than ‘mother’. The registrar refused, and Mr McConnell applied to the court for an order overruling the registrar and seeking a declaration that UK law was incompatible with the human rights of trans parents and their children. The court has now ruled, refusing both applications.
What was the decision?
In a whopping 61 page judgement, the court deliberated on the legal issues surrounding the case and ruled that Mr McConnell should properly be recorded as the child’s mother on the birth certificate.
The court said that the question posed was not one of the man’s gender, which was clearly male, but of whether the man was the ‘mother’ or the ‘father’ of his child. There is, the court said, a difference between a person’s gender and their status as a parent and whilst it is possible to change gender and be recognised in law as male or female (not currently to include non-binary), whether someone is legally a mother arises from the physical and biological process of giving birth. Whilst the applicant was recognised in law as male, his parental status (due to giving birth) was therefore ‘mother’.
The second question was whether UK law was incompatible with the European Convention on Human Rights (ECHR) by breaching Mr McConnell’s and his child’s right to respect for private and family life (Article 8). Declarations of incompatibility are rarely made by the court, and create a strong expectation that Parliament will change the law to make it compatible. However, the President dismissed Mr McConnell’s application for a declaration of incompatibility. He did, however, say that the issue raised was an important one of public policy, and praised the Applicant’s courage in highlighting it. Whilst stopping short of making a formal declaration of incompatibility, the President did encourage the government and Parliament to address this issue head on. The status of a man who has become pregnant and given birth (and also, the wider implications for modern families, where the inflexible male father and female mother terminology needs updating) is certainly not one that is going away.
What do we think?
The case is likely to be appealed, so Mr McConnell’s judicial journey may not yet be over. However, even if the court does rule differently at a more senior level, it is still likely legislation will be needed to create better law for transgender parents. When the Gender Recognition Act 2004 first allowed UK adults to formally change their legal gender, very little (if any) thought was given to the issues which would arise for trans parents who conceived children after transitioning. There is a tiny provision in the GRA 2004 which says quite simply that a person’s status as a mother or father is not affected by a change of legal gender. While this was clearly designed to protect the existing parenthood of trans parents who transitioned, it did not deal with what should happen if trans parents conceived children further down the line. This very clearly all needs a re-think to bring the law up to date.
Whether to review the GRA 2004 as a whole was subject to a public consultation last year (see our blog), and there are other issues with it too, including that the process is overly intrusive and that (in England) spouses retain a power to veto their partner’s gender change. We hope that this will be looked at as part of wider reform, to create sensible law for trans men, women and non-binary people, and enable more flexibility over whether parents are registered gender-neutrally (as ‘parents’) or are able to choose the parental title best aligned with their identity.
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