A court has ruled that a transgender man must be registered as the “mother” of his child – a move family law experts insist is a “human rights law breach”.
Freddy McConnell, who gave birth to his child with the help of fertility treatment, wanted to be registered as the “father” or “parent” of his baby .
But Sir Andrew McFarlane, the most senior family judge in England and Wales, ruled that motherhood is about being pregnant and giving birth, regardless of whether the person who does so is considered a man or a woman in law.
McConnell, a multimedia journalist at The Guardian, said he was “saddened” by the ruling but intends to appeal it.
“It’s just not fair,” he said. “It has serious implications for non-traditional family structures. It upholds the view that only the most traditional forms of family are properly recognised or treated equally.”
Experts from law firm Irwin Mitchell have described the decision as “hugely disappointing”, and have called for the UK to follow the example of Canada and Sweden in adopting gender neutral birth certificates.
I’m saddened by the court’s decision not to allow trans men to be recorded as father or parent on their children’s birth certificates.
I fear this decision has distressing implications for many kinds of families. I will seek to appeal and give no more interviews at this stage.
— Freddy McConnell (@freddymcconnell) September 25, 2019
McConnell, a single parent, has lived as a man for several years, and holds a gender recognition certificate that makes clear the law considers him male. In 2018, the 32-year-old gave birth and went to court after the registrar insisted that he be recorded as the baby’s mother on the birth certificate.
The court heard that recording McConnell as the baby’s mother breaches their rights to privacy and freedom from discrimination, protected under Articles 8 and 14 of the Convention of Human Rights.
But it was also argued that recording McConnell as the baby’s mother was necessary in order to uphold his child’s right to know its identity. This right is also protected by the right to enjoy a private life, to which parental lineage was deemed to be vital.
The case was made that this is particularly important for “medical purposes” – as some medical conditions, such as mitochondrial disorders, only pass through the maternal line.
McConnell’s journey to parenthood was documented in a film called Seahorse, which included his thoughts and footage of him going through fertility treatment, conception, and the birth of his baby boy.
In a 60-page ruling, McFarlane concluded: “Being a ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific.
He added: “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’.”
The ruling has set out the first definition of the term mother in common law and it will have far-reaching implications spanning family law, human rights law, fertility rights, and transgender rights.
Gender Neutral Birth Certificates
Image Credit: Unsplash.
Family law experts at law firm Irwin Mitchell consider the ruling to be a backward step for transgender rights.
A joint statement from the firm’s Hannah Saxe and Scott Halliday said: “The decision is hugely disappointing and highlights one of the many challenges faced by trans people wishing to create a family.
“It cannot be right that a person can be legally recognised as male is some respects, such as on a Gender Recognition Certificate, but not in others.
“The welfare of the child is also key – as far as Mr McConnell’s child is concerned, he is their father and their birth certificate should reflect the reality of their family situation.
“We cannot endorse a cherry-picking policy, in this case for transgender parents and the registration of the birth of their children. We allow individuals a legal route to acquire gender; we must not then fall short when they wish to use those rights in practice. Otherwise, why bother in the first place?
“Other jurisdictions such as Canada and Sweden have gender neutral birth certificates, so England should follow their example to keep up with societal developments and respect the human rights of the trans community. This case is likely to be appealed as the existing law is a human rights law breach.”