In this blog I explore a recent case in family law involving legal recognition for a transgender parent. With thanks to barrister Richard Jones of 1GC who kindly shared his expertise and in doing so helped the following piece come together.  

Background

Alfred McConnell (Freddy) is the transgender parent at the centre of the case TT[i] (Freddy lost his right to anonymity last year whilst the case was ongoing).

Freddy was born female and started taking testosterone in 2013 and underwent a double mastectomy in 2014.  In January 2017 he obtained a gender recognition certificate confirming that he is male.

Freddy wanted to become a parent and in 2016, under medical guidance, he stopped taking testosterone and began fertility treatment with the aim of achieving pregnancy.  His gender when undergoing that fertility treatment was registered as male.  His journey to parenthood is well documented in the film Seahorse which was screened at various film festivals and shown on the BBC.

 

Freddy’s difficulties came when he wanted to register the birth of his child.  He had a gender recognition certificate that confirmed he is male and wanted to be recorded as his child’s ‘father’ or ‘parent’.  He was informed by the Registrar that he would be recorded as ‘mother’, although the registration could be in his current (male) name.

Freddy applied for judicial review of this decision, but it was refused on 25th September 2019 by Sir Andrew McFarlane, President of the Family Division.  Freddy also applied for a declaration of parentage, with the President declaring that Freddy is the child’s mother.   Freddy was granted permission to appeal against both orders.

Freddy’s appeal has now been heard and the Judgement was published on 29th April 2020.  Freddy’s appeal was unsuccessful, although the early indications from his legal team are that the matter is likely to be taken to the Supreme Court.

So why is the label of ‘mother’, ‘father’ or ‘parent’ so important?

Under UK law the woman who gives birth to a child will always be that child’s mother, but what if a man gives birth to a child?

Following the President’s decision, ‘mother’ is no longer a gender specific term and there can be male mothers.  He commented that “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,” and added that “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”.

The difficulty for Freddy was that section 12 of the Gender Recognition Act 2004 sets out that “the fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.”

The label of ‘mother’ is important in law because the mother of a child is the only parent who attains parental responsibility for a child automatically upon a child’s birth.  A father or second parent attains parental responsibility by virtue of being named on the child’s birth certificate, by agreement with the mother or by court order.

It is of note that (apart from cases where children are abandoned and the mother is unknown) there are no children born in the UK who do not have a mother named on their primary birth certificate.  A primary birth certificate will always have a mother and either a father or second parent.  It follows that there are no primary birth certificates in the UK with two fathers (same-sex male couples who have a child through surrogacy need to apply for a parental order).

So why is this the case?  It might be argued that birth certificates need to be accurate records for children, but it can no longer be argued that birth certificates are biological records.  Instead, with the increase in adoption and alternative family structures, birth certificates are records of legal parentage.

Gender recognition

The Gender Recognition Act 2004 section 9 states that ‘where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender’.  In fact, it is a criminal offence for someone who has obtained information relating to an individual’s transgender status in an official capacity to disclose it to another person.

Isn’t the recording of a transgender man on a child’s birth certificate a public disclosure of that man’s transgender status?   Every time that birth certificate is produced, throughout the child’s lifetime, there is a further disclosure.

Should a child born to a transgender man ever be subject to an application under the Children Act 1989, again that man’s status will be disclosed as they be identified as ‘mother’ on the applications.

As mentioned above, section 12 of the Gender Recognition Act 2004 states that ‘the fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child’.  This has been proven in law[ii] to have retrospective effect, so that if an individual applied for a gender recognition certificate it does not change their relationship to their existing children.

What next?

It seems realistic to expect to see Freddy’s case before the Supreme Court in the future and, dependant on the timeline of Brexit, it could feasibly end up before the European courts.

There is currently a German case where the country’s Federal Court of Justice rules against a transgender woman who was told she can only be recognised as her child’s father.  Whilst we remain under the jurisdiction of the European courts, this case could have a direct impact on Freddy’s situation. Watch this space.

[i] TT [2020] EWCA Civ 559, [2019] EWHC 2384 (Fam) [2019] 9 WLUK 296 : [2019] HRLR 17 : [2019] 3 WLR 1195 : [2020] 1 FCR 114 : [2020] Fam 45

[ii] JK [2015] EWCH 990 (Admin)

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