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Irwin Mitchell Private Wealth , 28 JUN 2018

Transgender parents, registration of children on birth and human rights

Scott Halliday

Solicitor

Transgender parents, registration of children on birth and human rights
The registration of children after birth is an important and significant moment for parents. On first blush there is no obvious link between registration of a child’s birth and the gender of the child’s parents. However, this can be a particularly challenging moment for transgender parents.

The difficulty for transgender parents has been highlighted, through the courts, after a parent was denied the ability to register his child’s birth after a birth registrar told him that he could not be recorded as the child’s ‘father’ or ‘parent’ on the birth certificate.

The above situation arose when the parent asked the registrar to record that he was the child’s ‘father’ or ‘parent’, as opposed to the child’s mother. The parent had given birth to the child, but he asserted that he did not want, nor would it be accurate, for him to be recorded as the child’s mother. That would have been inaccurate and disregarded his obtaining of a Gender Recognition Certificate, under the Gender Recognition Act 2004, which provided for his transition at law.  Article continues below...

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The matter was recently heard, for preliminary submissions, before Mr Justice Francis in the High Court. This is a test case and likely to attract significant further attention as the matter proceeds. 

It is important to note that an individual who transitions from female to male at law may well maintain the biological ability to conceive and give birth to a child. It is not a prerequisite for the granting of a Gender Recognition Certificate for an individual, transitioning at law female to male, to not be able to conceive and give birth to children.

The case is the first of its type to be head in the courts. It is of major significance to transgender parents who may wish to conceive children and be registered on the birth certificate in accordance with their gender as per their recognition certificate, or to be recorded as a ‘parent’ which is more neutral and removes the gendered binary presumption. 

The parent asserts that his rights under the European Convention on Human Rights have been engaged, by virtue of the Human Rights Act 1998, as the denial to register him as the child’s ‘father’ or ‘parent’ was discriminatory and breached his Art 14 rights, freedom from discrimination, when taken in conjunction with his Art 8 right to private and family life. 

It is understood that the registrar felt that the decision was one which needed to be reviewed and approved at a higher institutional level. In view of this the registrar felt that he could not register the transgender parent as the child’s ‘father’ or ‘parent’ without clear guidance allowing this to occur which at the time of the registration was not available. 

It is hoped that the matter will bring about further progressive law reform for transgender individuals/parents. 

The significance of the case should be understood in a wider context of important broader LGBT family law campaigns/law reform in recent years. For example, same-sex marriage, single person surrogacy, potential broader fertility law reform and the ever increasing mainstreaming of LGBT parent families.

It is not to say that more does not need to be done to address existing discrimination and/or that further mainstreaming is needed. But, there is surely an increased need for a creative and modern approach to issues such as the registration of children, which provides adequately for our diverse secular population beyond a heteronormative binary. 
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