Family Law

Transgender Man Ruled 'Mother' Of His Child

Hopefully, this family will find the legal recognition and protection they deserve, one way or another.

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Last month, the High Court of Justice in London issued its ruling in a case involving a transgender man who was trying to be recognized as the “father” of his child. Otherwise, despite identifying as a man, he would be listed — with his male name — as the “mother” of his child. At the very least, he was hoping to be listed as a “parent” on the birth certificate.

Despite the transgender man’s argument that a designation of “mother” was a violation of the Gender Recognition Act of 2004, and a violation of his and the child’s rights under the European Convention on Human Rights, the High Court ruled against changing the parent designation. Instead, the Court required that he remain as the “mother” on his child’s birth certificate.

While known as TT in the 61-page ruling, Freddy McConnell, has been open and public regarding his identity and his path to becoming a parent as a transgender man. In fact, McConnell, a multimedia journalist, participated in a documentary — aptly known as Seahorse: The Dad Who Gave Birth — based on his experience as a transgender man who journeyed through pregnancy.

Does “All Purposes” Mean “Some Purposes”?

Unsurprisingly, given its length, the opinion addresses several arguments under relevant law. First, under the country’s Gender Recognition Act of 2004 (the GRA), a person in the United Kingdom can apply to have their gender recognized as that other than their gender designated as birth, and receive a gender recognition certificate. The GRA provides that “where a full gender recognition certificate has been issued to a person, the person’s gender becomes for all purposes the acquired gender.” Case closed, right?

Not so fast. The government argued that in another section of the GRA, it states that “the fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.” Blimey. That’s quite some tension with “all purposes.”

McConnell argued that the second section was only intended to be retrospective — meaning that if the person has a child and then received a gender recognition certificate, their status of “mother” or “father” would remain. However, the government argued, and the Court agreed, that the provision was both retrospective and prospective, requiring that the parent be named as “mother” or “father,” per their biological role to the child.

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Further, the government argued that the word “mother” does not reflect a genetic connection or social connection to a child, but is specific to the act of birthing a child. Well, as a surrogacy attorney, I can tell you that’s not always the case. Instead, we associate the word “mother” with the woman intended to legally take parental responsibility to raise and care for the child.

What’s Best For The Child?

I spoke with Tammy Knox, a UK solicitor representing the AIRE Centre (Advice on Individual Rights in Europe), a non-profit that’s focused on promoting an understanding of European rights. The AIRE Centre successfully applied to intervene in this case, and — without taking a side — submitted evidence to ensure the judge was fully informed of the international obligation to consider the best interest of the child as a primary factor when making its decision. The evidence submitted by AIRE Centre suggested harms would likely be suffered by the child if the birth certificate is required to list his transgender father as his “mother.” Knox explained that such a designation of “mother” on the child’s birth certificate would invite an invasion of privacy, as well as the serious potential for transphobic confrontation. That potential would almost certainly come to fruition if McConnell ever choose to travel with his son outside of the country.

Moreover, a birth certificate must be presented in a number of situations, and the “mother” designation would invite social problems for the child. For example, a birth certificate must be submitted to the child’s school, and while ideally, the staff would keep such a document private, the staff could possibly react with hostility toward the parent or child, and might even share the information with the school community.

Submissions by the child’s “Litigation Friend” (like a “guardian ad litem” and my new favorite term that the American justice system should adopt), found that it was “overwhelmingly” in the child’s interest that the birth certificate reflect the child’s reality — that his father is male — and list his father as either “father” or “parent” on the birth certificate. “Anything else gives the impression of something secretive or shameful.” The Litigation Friend further concluded that any other outcome would result in the child being punished for the government’s current archaic rules on birth certificate registration.

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The government accepted that the requirement for a transgender man to be named as a “mother” of his child may interfere with rights under the European Convention of Human Rights. But the government persuaded the Court that the requirement “pursues a legitimate aim and is proportionate or otherwise strikes a fair balance.”

Opening Pandora’s Box

The government argued that a whole host of negative unintended consequences would result if a transgender father were to be named as a “father” on a child’s birth certificate. For one, the government argued that the highly regulated system of healthcare allowing for fertility treatments under the Human Fertilisation and Embryology Act (HFEA) that were applied to McConnell were only authorized for a woman. If McConnell were designated as “father,” it could be that the clinic that performed the fertility treatments was in violation of the law, retroactively.

Further, an anonymous sperm donor was used in the conception of McConnell’s child. The government argued that if the treatment was outside of the HFEA, the protections afforded to the sperm donor, as well as McConnell as the recipient of the donation, may not be valid. That would be bad, since the legal protection that the donor is not a legal parent to the child stems from the HFEA. While the link between being listed as a father and the loss of these protections seems attenuated — particularly since McConnell was already recognized as male when he underwent these treatments — the government didn’t back down.

The government also argued that if the government were to grant McConnell’s wish of being named as “father” or “parent,” the precedent would mean that some children would have no way of knowing who gave birth to them. That’s not something Americans have prioritized, but in the UK it’s still an issue. Not really in this case though, since McConnell himself carried and gave birth to his child.

While the Court felt bound by existing law, in good news, the Court did encourage legislative action to fix an acknowledged problem. And, in even better news, the ruling has been appealed by McConnell — and permission has been granted to appeal to the Court of Appeal. Hopefully, this family will find the legal recognition and protection they deserve, one way or another.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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