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Freddy McConnell transgender father judgment: commentary from intervening charity and specialist solicitor on landmark test case

Posted: 25/09/2019


Tammy Knox, a solicitor in Penningtons Manches Cooper’s family law team, acted pro bono for the AIRE Centre, a legal charity specialising in human rights that was given permission to intervene in the high profile case of TT v Registrar General of England and Wales and Secretary of State for Health and Social Care.

Following judgment being handed down today, the AIRE Centre and Tammy, alongside counsel Samantha Broadfoot QC of Landmark Chambers and Andrew Powell of 4 Paper Buildings Chambers, have prepared commentary and background from their perspective as intervenors in the proceedings.

The intervention detailed the longstanding prioritisation of children’s rights in international and European jurisprudence and standards, as well as recent legal developments related to sexual orientation and family life. In particular, the intervention emphasised the right of children to be protected from discrimination due to the sexual orientation or gender identity of parents and the child’s right to know his or her identity and lineage.

Commenting on the significance of the case, Tammy said: “This was a key test case - the first to determine this issue in the UK courts. The decision needs to be considered against the backdrop of a changing legislative landscape on gender identity and legal parentage, and particularly in relation to the wider public policy debate on children born to transgender parents.

“The predominant issue in the judgment is the biological identity of a parent compared to the social reality of family structure. Or in other words, the legal reality versus the practical family reality for children of transgender families.”

Nuala Mole of the Aire Centre commented: “A significant contribution of this judgment is its careful consideration of language, particularly regarding modern developments in fertility methods and family structures.

“The court concluded that there is a material difference between a person’s gender and their status as a parent and that the biological/gestational parental role is separate from the social/psychological/emotional role. It explained that, as a matter of law, the term ‘mother’ is free-standing and separate from consideration of legal gender, thus in law there can be male mothers and female fathers.  This is interesting language from a court, as although the terms ‘male mother’ and ‘female father’ have been used by journalists, and appear in at least one medical dictionary, as far as we are aware this is the first time these terms have been used judicially.”

Background and full commentary

The AIRE Centre was granted permission to intervene in the proceedings of TT v Registrar General of England and Wales and Secretary of State for Health and Social Care and others with the High Court of Justice Family Division by way of written and oral submissions. Counsel (Samantha Broadfoot QC of Landmark Chambers, leading Andrew Powell of 4 Paper Buildings Chambers) and solicitors (Penningtons Manches Cooper) acted pro bono on behalf of the AIRE Centre.

The claimant in the case, TT, is a transgender male who gave birth to a child in January 2018 as a result of intrauterine insemination (IUI) fertility treatment with his own eggs. In July, an anonymity order preventing media outlets from naming TT as Freddy McConnell – a journalist who had taken part in a BBC documentary, Seahorse, about his journey to parenthood – was lifted.  

The issue in these proceedings is Mr McConnell’s legal parentage as registered on his child’s birth certificate. Prior to his IUI treatment, Mr McConnell applied for and received a Gender Recognition (GR) Certificate confirming his acquired gender under the Gender Recognition Act (GRA 2004). However, the Registrar General, registered him as the baby’s ‘mother’ on the birth certificate. In challenging this action, Mr McConnell raised the following questions: (1) whether the Registrar General had the discretion to register him as ‘father’ or ‘parent’ instead of ‘mother’, and if not, (2) whether his registration as ‘mother’ according to UK domestic law, is a breach of either Mr McConnell or his child’s rights under Article 8 of the European Convention on Human Rights (ECHR) and/or Article 14.

The court, under the direction of the President of the Family Division, The Rt Hon Sir Andrew McFarlane, held that Mr McConnell was correctly registered as his child’s mother and that there was no breach of ECHR rights. The predominant issue in the judgment is the biological identity of a parent compared to the social reality of family structure, in other words the legal reality versus the practical family reality for children of transgender families. In its intervention, the AIRE Centre detailed the longstanding prioritisation of children’s rights in international and European jurisprudence and standards, the most significant of which are the United Nations Convention on the Rights of the Child [UNCRC] and the ECHR, as well as recent legal developments related to sexual orientation and family life. In particular, the intervention emphasises the right of children to be protected from discrimination due to the sexual orientation or gender identity of parents and the child’s right to know his or her identity and lineage.

The court carefully considered the legal, social, and psychological consequences for children born to transgender parents. The President appropriately acknowledged the importance of this case as the first to determine this issue in the UK courts and within a changing legislative landscape on gender identity and legal parentage, and particularly in relation to a wider public policy debate on children born to transgender parents. Moreover, the tone of the judgment is quite fair and tactful in consideration of an imperfect factual situation. The President considered the general validity of ruling and was quite tactful in his discussion of the particulars, by avoiding giving undue weight to troubling details such as Mr McConnell’s lack of disclosure about his fertility treatment to the G R Panel during the hearing about gender acquisition, (particularly as neither party challenged the validity of the GR certificate, para 45) as well as his co-operation in the production of a documentary about his pregnancy (para 46). Instead he searched for higher level policy implications rather than adopting a case by case approach for such family situations.

A significant contribution of this judgment is its careful consideration of language regarding modern developments in fertility methods and family structures. In tracing the jurisprudence on such issues, the court helpfully provides an overview of the common law usage of parental terminology ‘mother’ and ‘father’. For example, within the context of certain fertility methods, the law has begun to distinguish between ‘genetic’ mother and ‘carrying’ or ‘gestational’ mother.  The exposition of the statutory framework relating to assisted reproduction demonstrates that there is, at the least, a concerning lack of clarity in the terminology used therein (paras 19-26) and “there would seem to be a pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child” (para 125).

In the present case, the claimant submitted that he was a ‘male parent’ and therefore the baby’s ‘father’ (para 63). The Government however did not agree that this was the correct term, arguing that “the person’s biological role in the process of conception, pregnancy, and birth” is what is reflected in the term mother. The court agreed with the Government’s reasoning and concluded at para 271 that “there is a material difference between a person’s gender and their status as a parent” and that the biological/gestational parental role is separate from the social/psychological/emotional role. It explained that, as a matter of law, the term ‘mother’ is free-standing and separate from consideration of legal gender, thus in law there can be male mothers and female fathers (para 251).  This is interesting language from a court, as although the terms ‘male mother’ and ‘female father’ have been used by journalists, and appear in at least one medical dictionary[1], as far as we are aware this is the first time these terms have been used judicially.[2]

While considering Mr McConnell’s Article 8 ECHR right to privacy and family life, the President acknowledged situations raised by the AIRE Centre in which the legal parentage reflected on a birth certificate might raise problems for a child or parent. These include the practical realities of travelling across different jurisdictions, or other instances in which the gender inconsistency on a full birth certificate may cause issues, eg applying for loans or benefits. However, the court held that the UK is within its margin of appreciation in its use of the domestic birth registration scheme and desire for a coherent and stable birth registration scheme.

Whilst the court did not specifically address the AIRE Centre’s submission that the procedural obligation in Article 3(1) UNCRC is breached because there is no evidence as to how the rights of children were considered or taken into account when devising and revising, following the GRA, the system for birth registration, overall the AIRE Centre is pleased that its intervention was helpful to the court and that the best interests of the child were considered with such prudence, and looks forward to seeing if and how the legislature addresses the legal and policy issues raised.

[1] Segen's Medical Dictionary. © 2012 Farlex, Inc. “male mother”: A transgendered person who was born a girl and underwent a sex-change operation to become a man but has retained the relevant female reproductive organs — who has conceived a child.

[2] https://www.dailymail.co.uk/news/article-2103157/Britains-male-mum-speaks-My-mother-told-Id-good-mummy-I-said-No-Ill-good-daddy.html;

https://www.telegraph.co.uk/news/health/news/9091472/Britains-first-male-mother-I-want-to-live-as-a-normal-father.html

 

 


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