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Court of Appeal upholds decision to register transman as ‘mother’ on birth certificate

By 24 August 2020Law news, News

The Court of Appeal has refused a bid by a trans man to be registered as the father of a child he gave birth to.

The case concerned a journalist who legally and medically transitioned to life as a male during his 20s, receiving a gender recognition certificate, under the Gender Recognition Act, in 2017. Nevertheless, the man retained the capacity to have children and eventually conceived via in vitro fertilisation the following year.

But when the journalist attempted to officially register the boy’s birth, the registrar insisted that he would have to be listed on the birth certificate as the boy’s mother, to reflect his legal status.

The man applied for a judicial review of this requirement, argued that as he was already legally and socially recognised as a father, he should be registered as such on the birth certificate too, or at least under the gender-neutral term ‘parent’. Alternatively, he suggested, Judges could declare the requirement to register birth parents as ‘mother’ incompatible with Articles 8 and 14 of the European Convention on Human Rights.

Article 8 of the Convention covers the right to respect for one’s “private and family life”, while Article 14 prohibits discrimination.

His son formally took part in the application via a representative known as a “litigation friend”, represented by Jeremy Ford at Cambridge Family Law Practice, arguing that his parent should be declared his father under section 55A of the Family Law Act 1986. This sets out qualifications to apply for a formal declaration of parentage.

However, his application was unsuccessful. Sir Andrew McFarlane, President of the Family Division, upheld the registrar’s decision, declaring that the parent who carries and gives birth to a child is the legally the mother, regardless of their gender.

He explained that ‘mother’, in a legal context, referred only to reproduction. It was:

“…the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth.”

Sir Andrew continued:

“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’.” 

The President’s ruling has now been upheld in the Court of Appeal. Lord Burnett, the Lord Chief Justice, alongside Lady justice King and Lord Justice Singh, said that while the case was clearly a sensitive one, a child’s right to understand the reality of his or her birth outweighed a parent’s right to have their legal gender listed on the birth certificate.

The Justices also concluded that any infringement of father and son’s Article 8 rights had been justified by the need for a consistent system of birth registration. They also noted that the Gender Recognition Act states:

“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.”

Nevertheless, they acknowledged the sensitive nature of the case.

The journalist has now announced his intention to appeal to the Supreme Court.

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