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Becoming a father after giving birth

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There was disappointing news from the Supreme Court earlier this month for a transgender man who had sought a judicial review of a decision to list him as “mother” of a child.

Alfred ‘Freddie’ McConnell holds a gender recognition certificate, which means his status as a male is legally recognised. Such certificates have been issued since April 2005, when the Gender Recognition Act (GRA) first came into force.

Mr McConnell medically transitioned in 2013 and he was granted a gender recognition certificate in 2017 after demonstrating that he met the legal requirements for one:

  • He was over 18.
  • He had been officially diagnosed with gender dysphoria (also known as ‘gender identity disorder’).
  • He had lived as a male for a minimum of two years.
  • He intended to continue living as a male for the rest of his life.

Shortly afterwards, ongoing fertility treatments were successful and Mr McConnell became pregnant, giving birth to a boy in 2018. However, when he applied to register the birth, Mr McConnell was told that he would have to be listed on the birth certificate as the father, although the certificate would feature his male name.

The father took his case to court. He argued he should at least be allowed to use a gender-neutral term like ‘parent’ and that the stipulation he be listed as the mother was a breach of his rights under Articles 8 and 14 of the European Convention on Human Rights. The former governs respect for a person’s “private and family life” while the latter covers the right to freedom from discrimination.

Unfortunately for Mr McConnell, his application for a judicial review of the decision was unsuccessful at both the High Court and the Court of Appeal. This was because, under English law, the status of mother is determined by the act of giving birth. High Court Judge Sir Andrew McFarlane explained the legal situation in his ruling:

“The status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth…Being a “mother” or “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female.”

Section 12 of the GRA states plainly:

“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.”

Sir Andrew explained:

“Section 12 of the GRA is both retrospective and prospective. By virtue of that section the status of a person as the father or mother of a child is not affected by the acquisition of gender under the GRA, even where the relevant birth has taken place after the issue of a GRC.”

The Court of Appeal was also unconvinced, concluding that Mr McConnell’s human rights had not been breached because Parliament had not included any requirement for surgery or physiological transition in the Gender Recognition Act.

The Court concluded:

“The legislative scheme of the GRA required Mr McConnell to be registered as the mother of [his son], rather than the father, parent or gestational parent. That requirement did not violate his or [his son]’s Article 8 rights.”

And now Mr McConnell has been declined permission to take his case to the Supreme Court because, in the view of the Justices, no real, arguable points of law had been raised.

Only time will tell how the law develops from here. Gender transition is topic that evokes strong feelings for many – it is very much a ‘hot button issue’, and the topic of much discussion on social media as well as in the mainstream media. I don’t think we will need to wait too long before the law revisits this issue.

You can read the Court of Appeal ruling from April here.

Image by Frank Boston via Flickr (Creative Commons)


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