Transgender parenting - birth certificate recognition challenges

Posted: 30/06/2015

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The press has recently been preoccupied with a significant case concerning the rights of transgender people and their families, in particular the right to keep private the fact that they are transgender. 

This case, R (on the application of JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin) , involved JK who for ease, we shall call Jackie/Jack. Jackie was born male and had married KK (who we shall call Kirsten) on 1 August 2007. Their daughter was born in early 2012. By this time, Jack wished to live as a woman and changed her name by deed poll, renouncing her former name and her title of ’Mr’ and thereafter calling herself Mrs Jackie. Kirsten and Jackie then had a second child, conceived before Jack began feminising hormonal treatment. 

On 15 September 2012 Jackie wrote to the local registrar for births asking whether their first child’s birth could be re-registered to show Jackie as a ’parent’ rather than the ’father’. Jack also asked for the registration of the second child’s birth to carry the same description. The registrar refused and set out that the law as it stands requires Jack to be registered in both cases as the child’s father. The registrar said that there was no power to re-register or amend the first child’s birth certificate. Jackie issued a claim which was stayed pending the birth and registration of Jackie’s second child who was born in Spring 2013. Crucially, the same order granted Jackie and her children anonymity. 

After the second child was born, Jackie and Kirsten went to the registry office to register the baby’s birth and requested that Jackie be registered as the child’s ’parent’ or ’parent/father’. The registrar sought to enter Jackie’s former name of Jack on the certificate, which was rejected by Jackie as she did not consider it was appropriate given her transition and the declarations in her deed poll. The registrar therefore completed the form listing Kirsten as ’mother’ and Jackie as ’father’. 

In her claim Jackie contended that the requirement to show her as ’father’ on the birth certificate of each of her children was a breach of her human rights. Jackie also sought to amend the first child’s birth certificate so that she was recorded on the document as Jackie. In her case, Jackie said that she was very concerned by the embarrassment and distress that would be caused by the disclosure of her transgender status through the production of the birth certificate. The Official Solicitor on behalf of the children supported the claim on the basis that it would be in the children’s best interests if their birth certificates did not reveal that Jackie was transgender. 

Mr Justice Hickinbottom heard the substantive application on 11 December 2014, and reserved judgment. Shortly thereafter it became clear that Jackie had disclosed all the information she was seeking to protect in her claim, through her Twitter and Facebook accounts. She had also been listed in a national newspaper, as a transgender activist. It is unclear the extent to which this influenced the final decision of the judge. 

Mr Justice Hickinbottom concluded that the requirement for a man, who changes gender to female, to be listed as ’father’ on the birth certificate of a child was not a breach of that person’s human rights. 

It has surprised many observers that Jackie was unsuccessful in recording herself as the mother of her child, particularly given that since 2009, it has been possible for two women to be entered as the parents on a birth certificate should they have a child with the aid of artificial reproduction such as IVF. Huge progress has been made in recent years for transgender people but this case evidences the fact that that there is still a long way to go to secure true equality and recognition.

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