JK, R(on the application of) v Secretary of State for Home Department and another  EWHC 990 (Admin) 20 April 2015 – read judgment
The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.
Factual and legal background
The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant.
At the time of the hearing JK was still on a waiting list for gender reassignment surgery.
In accordance with the Registration of Births and Deaths Regulations 1987, the first child’s birth certificate recorded KJ as the “father” and identified her by her male forename; the second child’s birth certificate also recorded JK as the “father”, but used her female forename.
This was the outcome of her application for judicial review of the requirement that she be recorded as the “father” on the birth certificates of her two biological children. She submitted that the requirement to identify her as the “father” breached her and her children’s rights under Article 8 and amounted to discrimination under Article 14.
Hickinbottom J had reserved judgment on the substantive hearing in December 2014. However, shortly after that hearing, JK had “freely and publicly” disclosed all of the information that she sought to protect in this claim in the form of her public Twitter and Facebook accounts, and the fact that she had been listed by a national newspaper as a transgender activist. As the judge observed,
Each of these broadcast the fact that the Claimant is transsexual and has children, her Twitter page saying (for example) that she is: “… Mum of two. Trans…”. The newspaper listing also said that she leads a voluntary organisation dealing with issues affecting those who are transgender.
The Court’s Decision
Article 8 was engaged. Gender identity was an integral part of an individual’s private life. Member states had to recognise changes of gender and ensure that documents and certificates that might reveal the change of gender were reissued in the acquired gender. Article 8 was engaged if, by not allowing such changes, the state required an individual to disclose her previous gender.
At the time the statute governing the registration of births, deaths and marriages was enacted (1953), there was a general presumption that social motherhood and fatherhood (i.e. those who in practice acted as mother and father to a child) would reflect biological motherhood and fatherhood. However, since then, social relationships have become, as Hickinbottom says, “more complex”:
The law recognises this; and particular legislative provisions have been made with regard to the legal status and registration of a child and concerned adults in a number of situations, including (i) where a child is born as a result of assisted reproduction (see paragraphs 32-41 below), (ii) surrogacy (paragraphs 42-44) and (iii) adoption
The Irish courts have struggled with the issue of surrogacy under their equivalent provisions, which do not recognise anyone other than the birth mother as being the “natural” mother of a child delivered by surrogacy (see my post on M.R._and_D.R.). In the UK, the law has been changed to reflect the potential conflict of interest in these cases; where a child is born through a surrogacy arrangement using the gamete of at least one “commissioning parent”, the commissioning parents may, if the woman who carried the child consents, apply for a “Parental Order” under which the commissioning parents become the “parents” of the child, and any parental responsibility of other individuals is extinguished. As a matter of law and as recorded in a birth certificate, unless a Parental Order extinguishes motherhood as part of surrogacy arrangements, a child’s “mother” is always the person who carries and gives birth to the child. The Claimant in this case submitted that the schemes adopted in the circumstances of surrogacy and other “more complex” family arrangements were relevant because where a child has a transgender parent, similar considerations (including article 8 rights of privacy) apply and a similar scheme could and should be in place, there being no justification for the Government’s failure to do so. In short, the Claimant contended that the law
thus recognises that where the social/legal relationship between parents and children is not a straightforward reflection of biology, the children’s birth or other similar identification certificates should accord with the way in which the family presents itself to the world.
The practicalities of the matter were important. Hickinbottom J noted that the identification of JK as the “father” of her children appeared only on the long-form, and not the short-form, birth certificates. People were rarely required to produce the long-form certificate (although the claimant argued that in fact the long-form certificate is being required in more and more situations these days).
On the other hand, it might be an interference with a child’s Article 8 rights for the birth certificate to disclose that his parent was transsexual. As the judge put it, not all the parties involved in such a case treat the gender transition of a spouse, partner or parent with the equanimity that the mother of JK’s children did in this case.
Any scheme to give effect to the rights of a transsexual person to have his or her new gender recognised had to balance those rights with the rights and interests of other individuals affected.
One way to do this would be to do what the Claimant contended was appropriate which was to keep such private matters off the face of the record,
not only because it is regarded as inappropriate for such information to be revealed to third parties, but because children themselves, if they happen to see their own birth certificate or discover their contents, should not be confronted by the fact that the person they consider their father was not their biological father before they are ready to understand what that means
But it might equally be an interference to fail to reflect on his birth certificate the true position as regards his parentage at birth. So far as the children are concerned, it was clear that the Article 8 arguments did not all tend in the same direction. Which element of a child’s article 8 right is the stronger would depend upon the circumstances of the particular case. Thus, there was force in the argument that any interference with JK’s privacy rights was not material. However, the judge was prepared to assume a material interference with JK’s Article 8 rights, given the importance of gender identity to individuals.
But that interference was in accordance with the law. In order to accommodate assisted reproduction, surrogacy and other arrangements, the word “father” on most of the prescribed forms under the 2008 Human Fertilisation and Embryology Act was replaced with “father/parent”. However, for birth registration/certificate purposes, “father” and “parent” are mutually exclusive terms – “parent” being restricted to a second female who is to be treated as a parent of the child by virtue of the HFEA 2008. As a result, it is the practice for the relevant registrar to delete either the word “father” or the word “parent” from the birth certificate. The registrar has no discretion to enter “father/parent” on the certificate; one or other term has to be deleted, even in the case of somebody in JK’s position.
The interference was also justified. The birth registration scheme pursued the legitimate aims of having an administratively coherent system, and respecting the rights and interests of other people. Those rights included a child’s right to know the identity of his biological father and to have it properly recognised. No less intrusive measure could have been used. As far as Strasbourg jurisprudence was concerned, Christine Goodwin v United Kingdom (2002) laid down the “overwhelming” principle that a transsexual person had a legitimate interest in having her new gender recognised. But that was where no contrary public interest or private right prevailed. Furthermore, signatory states to the Convention have a substantial margin of discretion in respect of how the gender of transsexual people is recognised.
there is no clear line of authority from Strasbourg – nor any principle deriving from ECtHR cases, international papers, domestic cases or elsewhere – that article 8 requires the birth certificates of the children of those who change their gender to be amended to show the new name and gender of that individual, and/or to change the listed status of that person from “father” or “mother” as the original certificate showed to some other designation, such as “parent”, to ensure that the fact of their gender reassignment was not apparent from their children’s birth certificates.
An individual’s parentage was a vital element of his identity, and to give JK the unilateral right to change her children’s birth certificates would infringe their right to have their fundamental identity respected. The fact that JK’s children’s interests might best be served by altering their birth certificates did not make the scheme unlawful. A scheme that favoured the interests of some children might damage the interests of others. There was no settled line of Strasbourg authority or principle demanding that a father who changed gender to female should be able to change his children’s birth certificates to reflect that fact. Such a change was not possible elsewhere in Europe, and the state had a relatively wide margin of appreciation in producing a scheme that properly reflected the choice of transsexual people to live in a different gender.
The UK’s birth registration scheme was well within that margin of appreciation, and the state was entitled to conclude that the interference with the privacy rights of people in the Claimant’s position was outweighed by the interference with the rights and interests of other individuals and the public interest that would be caused by not having such a restriction.
Finally, although transsexualism was a characteristic covered by Article 14, the judge concluded that the claim under that provision added nothing “of substance” to the Article 8 arguments.
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