Freddy McConnell – transgender parenting, gender identity and birth certificates

7th October 2019 Family Law

England’s most senior family judge has declined the application of a trans man who gave birth to a child to be registered as the child’s father or alternatively as his parent. In a long and thoughtful judgment [https://www.bailii.org/ew/cases/EWHC/Fam/2019/2384.html], Sir Andrew McFarlane, President of the Family Division of the High Court decided that the term “mother” referred to a person who had given birth to a child. It is believed to be the first time that a court has had specifically to define the meaning of “mother”.

Mr McConnell was registered female at birth but transitioned to live in the male gender a decade ago. He has a gender recognition certificate and is never regarded as other than a man in official and social contexts. Mr McConnell retained his reproductive organs and conceived a child using his own eggs and donor sperm. This process was documented in the BBC film, Seahorse [https://www.bbc.co.uk/programmes/m0008bxb], which followed Mr McConnell’s journey to parenthood over a three-year period.

When Mr McConnell came to register his son’s birth he was told that he had to be registered as the child’s mother, rather than his father or, the gender neutral alternative, “parent”. He brought a claim for judicial review against the Registrar General, arguing that this lack of flexibility was a breach of his and his child’s human rights.

Mr McConnell lost. The court traced back through the common law and found that the term “mother” exists independently of gender identity and relates to the biological fact of pregnancy and birth. As such it is an expression of parental status rather than gender. It is therefore entirely possible for there to be male mothers and female fathers where an individual has transitioned but retained their fertility.

The judge agreed that there was an interference with Mr McConnell’s human rights and to a lesser extent, the child’s, remarking that the number of occasions on which the child would be required to produce his full birth certificate would be small and the opportunity for difficulties to arise, limited. However, he found that this interference was outweighed by the need for a coherent and predictable system of birth registration and therefore justified.

The current legislation does not offer the option of registering a person as a child’s “parent”. Other territories, such as California, offer this option. This could be one solution for future legislation. The birth certificate will continue to show that Mr McConnell – a man – is nevertheless his child’s mother.

While disappointing for Mr McConnell, it is hoped that the judge’s decision will spark a review of how gender is treated in the process of birth registration. The judge commented that “there would seem to be a pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child”. I couldn’t agree more.

The Law Commission – the body which researches potential areas for law reform – is already undertaking a root and branch review of the law on surrogacy. This includes fundamental questions about parental status and the allocation of legal parenthood. A consultation is open now and any actual legislative change is many years away. However, a review of the position of trans men who give birth and the status of gender diverse parents generally would be far more limited in scope and the opportunity to put things right exists, whether by making the process of birth registration entirely gender neutral or otherwise. Another item for the ministerial to do list…

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Beverley Jones is a Head of Liverpool located in Liverpoolin our Family department

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