Yesterday the High Court ruled that a transgender man who gave birth with the help of fertility treatment could not be registered as the child's father, rather than its mother, on the birth certificate.
The case, the background to which has been covered previously on this site, establishes the first legal definition of the term "mother" in English common law.
In his judgment in R (on the application of TT) v The Registrar General for England and Wales and Others, the President of the Family Division, Sir Andrew McFarlane, ruled that being a "mother" referred to being pregnant and giving birth, regardless of whether that person, in law, was a man or a woman. He went on to state that:
“The principal conclusion at the centre of this extensive judgment can be shortly stated. It is that 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’.”
In response to the decision, Hannah Saxe and Scott Halliday, family law experts at Irwin Mitchell 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.”
Read the full judgment here.