Photo by Annie Spratt on Unsplash
In a previous blog (Who’s the daddy? published on 17 July 2019), I discussed the case of Freddy McConnell, a transgender man who wished to be named as his child’s father on the birth certificate.
Mr McConnell, it will be recalled, had been born female and decided to undergo gender reassignment. While undertaking this process, Mr McConnell discovered that he was pregnant. He eventually gave birth to the child and wished to be designated as the father or parent on the child’s birth certificate.
Sir Andrew McFarlane, President of the English High Court has now issued a ruling regarding this matter (See R (on the application of TT v The Registrar General for England and Wales and Others [2019] EWHC 2348 (Fam)).
As the summary of the High Court’s judgement states:
“The issue at the centre of this case can be simply stated: where a person, who was born female, but who has subsequently undergone gender transition and acquired full legal recognition as male, becomes pregnant and gives birth to a child, is that person to be registered as their child’s ‘mother’ or ‘father’?”
Well, the simple answer is that Mr McConnell will not be permitted to insist that he be designated (or named) as the child’s father on the birth certificate.
As Sir Andrew McFarlane clearly stated in his judgement (at paragraph 279):
“… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.”
Sir Andrew McFarlane also dismissed Mr McConnell’s secondary argument that, if the court decided he could not be designated the child’s mother under English law, then this would represent a breach of Article 8 of the European Convention on Human Rights i.e. the right to private and family life. English law is not incompatible with the European Convention regarding this matter.
Interestingly, however, Sir Andrew did state (at paragraph 125) that this is an area which the UK Government and Parliament may wish to address in the future:
“The issue which has most properly and bravely been raised by the Claimant [Mr McConnell] in this Claim is, at its core, a matter of public policy rather than law. It is an important matter of public interest and a proper cause for public debate. Whilst this judgment will seek to determine the issue by reference to the existing legislation and the extant domestic and ECHR caselaw, as these sources do not themselves directly engage with the central question 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.”
Links to Sir Andrew McFarlane’s full judgement and the summary of this can be found below:
https://www.judiciary.uk/wp-content/uploads/2019/09/TT-and-YY-Summary.pdf
A link to how the judgement was reported on Sky News can be found below:
Scotland
As Scotland is a separate legal jurisdiction from England and Wales, the registration of births is primarily governed by the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (as amended).
In Scotland, transgender people can apply to have their birth certificate issued to reflect the fact that they have undergone a process of gender reassignment (as per the terms of the Gender Recognition Act 2004). There is, as yet, no provision in Scots Law for a transgender person who found themselves in Mr McConnell’s position to be designated as the father of a child to which they have physically given birth.
Although an English decision i.e. a persuasive rather than a binding precedent, R (on the application of TT v The Registrar General for England and Wales and Others [2019] EWHC 2348 (Fam) it could be argued that it is likely to be followed by the Scottish courts.
The Scottish Government is, of course, currently carrying out a consultation exercise on changes to the Gender Recognition Act 2004.
See the link to details about this consultation exercise:
https://www2.gov.scot/Topics/Justice/law/17867/gender-recognition-review
Copyright Seán J Crossan, 25 September 2019
Seán Crossan's Scots Law 