Transgender Parents: Defining Gender Identity After Child Birth
In a recent landmark case the President of the Family Division, Sir Andrew McFarlane, ruled that a transgender man who gave birth to a child had to be named as the mother on the child’s Birth Certificate.
The Claimant was registered as a female at birth but transitioned to live as male, receiveing his Gender Recognition Certificate in April 2017.
Prior to the issue of the Gender Recognition Certificate, the Claimant had started fertility treatment for fertilisation of his eggs in his womb. The treatment was successful and the Claimant gave birth to a son in January 2018.
This Case arose due to the legal requirement that upon the birth of any child, their birth must be registered.
One of the details required when registering a birth relates to the identity of the “father” and the “mother”. The Registrar, in this case, refused to register the Claimant as the father and insisted that he be registered as the mother.
The Claimant wanted to challenge the Registrar’s decision and sought a Declaration of Incompatibility with his Human Rights. The Claimant argued that gender was fundamental to whether a person is a mother or a father.
Therefore the Court was required to consider the legal definition of a mother.
What does the law say?
The starting point is a passage from a judgment dating back to 1977; motherhood is a legal relationship which is proved demonstrably by childbirth.
Section 9 of the Gender Recognition Act 2004 states that once a Gender Recognition Certificate is issued an individual acquires that gender for all purposes. Notably, the provision also provides that this doesn’t affect things done, or events occurring, before the certificate is issued.
The Gender Recognition Act 2004 also says (at Section 12) that a person’s acquired gender doesn’t affect the status of the person as the father or mother of the child.
The Court viewed the essence of what defines a mother as the biological process of conception, pregnancy and birth, rather than a person’s gender. It was therefore decided that the Claimant should be recorded as the mother.
With regards to the Claimant’s Human Rights, the Court considered the psychological and social impact on both the child and the Claimant in having a Birth Certificate that identified him as a mother. The Claimant argued that to register him as the mother is contrary to his view of himself, his gender and his role in his child’s life. It was also acknowledged that in a situation where the child’s Birth Certificate was to be produced, or even the prospect of doing so, would cause embarrassment, anxiety, and confusion.
However, the Court decided that in the interests of society, the operation of a reliable and consistent birth registration scheme which records the person who gives birth on every occasion as the mother outweighed the risk of the Birth Certificate being disclosed. This was a legitimate purpose that was necessary, proportionate, and fair and there was, therefore no Declaration of Incompatibility with the Claimant’s Human Rights.
Time for Reform?
In reaching this decision the Court acknowledged that the decision it had to make wasn’t expressly provided for by legislation and had to start from a Judgment from 1977.
So is it time that the legislation is reviewed to ensure that the issues transgender parents face are provided for in today’s society?