OPINION: Britain's courts must recognise the rights of trans parents

Tuesday, 1 October 2019 16:00 GMT

A general view shows Court Three in the United Kingdom's new Supreme Court building during a press tour in Westminster, central London September 14, 2009. The Supreme Court, which will sit in the former Middlesex Guildhall, replaces the Appellate Committee of the House of Lords as the highest court in the United Kingdom, and will open on October 1, 2009. REUTERS/Andrew Winning

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Britain's laws are outdated and do not recognise the rights of trans parents to register their gender on their children's birth certificates

Karen Holden is the founder of A City Law Firm

Last week, Freddy McConnell was denied the chance to register as the father of his child. McConnell, a transgender man, was deemed to be the mother of the child, despite despite being legally recognised as a man as a result of his Gender Recognition Certificate (GRC). 

The case was taken against the General Register Office, which administers the registration of births and deaths in England and Wales. This was as a result of McConnell being left with no other choice but to register as “mother” on his child’s birth certificate. This was obtained prior to his child’s birth. Following his GRC, all of Freddy’s legal documentation now represent his new status accordingly.

However, on becoming a parent this is where that equality ended. McConnell will never be known as mother by his child and nor does he want to be, yet doing nothing meant he would have to accept this label in this legal document.

Whilst McConnell was not successful in his legal challenge on this occasion, the case has opened a discussion on trans parents’ rights and indeed many other parent’s rights, so we remain hopeful that the door to continue to challenge this position is now firmly opened.

Whilst public opinion on the case is mixed, it has highlighted an area of law which needs modernising so that all people can be treated equally and so that the law reflects modern families and the myriad ways in which they are created.

The term “mother” has never, to our knowledge been challenged or considered in law to this extent and hearing the court say it is a gender-neutral term is, in itself, a revolutionary position.

Whether a parent has a child through natural means, donor, fertility, surrogacy, adoption or they are a trans parent, everyone is looking for the same thing: equality, fairness and accuracy. Be this with the birth certificate, recorded legal status or parental rights.

There has been a lot of sensationalism around this case but if you look at it in simplistic terms, it is about a parent who would simply like his child’s birth certificate to record accurately the current family structure into which they were born.

If you have a child through adoption or through surrogacy, they are issued a new birth certificate. Why can’t his child have the same right? The law has gone some way in recognising trans rights with the ability to apply for a Gender Recognition Certificate but, unfortunately, as is highlighted by this case, it doesn’t go far enough.

The court, in this case, has discussed gender versus biology versus legal status and in our opinion has failed to understand the interconnection. We do not believe it’s as simple as the current law states. 

In the judgment, the court ruling stated:

“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’."

This makes the position confusing to say the least. Legally Freddy is a man, biologically he can be pregnant and give birth yet according to the courts he will be legally recorded as the mother. If some people find a man giving birth difficult to understand the courts have now made this harder to grasp announcing that a child’s mother can be a man.

Changing a parent’s gender on a birth certificate to accurately reflect the legal status and the actual status of that parent is surely a very small step towards bridging the trans-parent inequality gap.