The right to respect for identity: transgender parents — David Gollancz

16 December 2020 by

Freddy McConnell, who was unsuccessful in the courts in his attempt to be registered as the father or parent of his child. Image: The Guardian

This is the first of two posts by David Gollancz, a barrister at Keating Chambers and donor-conceived adult, about the UK system of birth registration and certification.  This first post concerns the treatment of trans parents.  The second post will deal with the position of the offspring of gamete donation.

In two recent applications for judicial review by trans parents, JK, discussed on the UK Human Rights Blog here and TT (McConnell in the Court of Appeal), discussed on the blog here and here, it was held that the current UK rules on birth registration, interpreted in light of ss9 and 12 Gender Recognition Act 2004 (the “GRA”), require a woman (JK) to be or remain registered as her children’s father and a man (McConnell) to be registered as his son’s mother.  The requirement interfered with the Article 8 ECHR rights of the parents.  In an echo of the ECtHR in Goodwin (see in particular [77]) the Court of Appeal said (McConnell [55])

… requiring a trans person to declare in a formal document that their gender is not their current gender but the gender assigned at birth …represents a significant interference with their sense of identity, which is an integral aspect of their right to respect for private life.

The requirement also interfered with the children’s rights.  The registration of parents as “father” and “mother”, when the children in question knew them respectively as a woman and a man, would be at odds with their family relations and might create anxiety and tension.  However children also have a countervailing right, to know the identity of their biological parents. 

The defendant Registrar General (the “RG”) admitted the interference but argued that it was justified in the interests of maintaining an “administratively coherent system” of birth registration and to protect the child’s right to identify its biological father.  Absent an ECtHR judgment directly on point or a common approach among the signatory states, the UK enjoyed a margin of appreciation. The interference was held to be justified.

It is striking that the argument was about words: no-one argued that JK or Mr McConnell ought not to be registered as their children’s parents, only whether they should be called “father” or “mother”. Both JK and Mr McConnell sought to be registered as “parent” and Mr McConnell proposed as an alternative that he be registered as the “gestational parent”.  The court in TT ([267 – 268]) observed that:

The issue at the centre of the case is the Government’s insistence that the person who gives birth to a child should be registered as the “mother”. It is this title, rather than the need to register his role in the birth, to which TT and others in a similar situation take extreme exception because of the gender-specific nature of the term as they see it to be.

If the registration scheme were to record the identity of the person who carried and gave birth to a child as the ‘gestational parent’ or some similar gender-neutral phrase, then, as I understand TT’s and YY’s[1] case, there would be no issue.

However that would require judicial legislation and was not an option (McConnell [35]).

The legislation provides for registration as either “mother” or “father” or “parent” (Registration of Births and Deaths Regulations 1987 Sch. 1).  “Mother” is always the person who bore the child.  Where conception has taken place in a UK licensed fertility clinic, ss25 – 47 HFE Act 2008 set out rules providing for a woman’s[2] husband, civil partner, or other male to be registered as the “father”, or for a woman who is not the child’s mother as the “other parent”, provided that the “agreed fatherhood” or “agreed parenthood” conditions are met.  “Parent” is reserved for the registration of a person who is a second female parent in accordance with ss42 – 47 2008 Act (JK [50(iv)]).  There are no other restrictions as to who can be so nominated except that s41 expressly excludes a sperm donor in a licensed facility from being treated as the father of a child conceived using his sperm, and s47 provides that being an egg donor is not in itself enough to confer parenthood on a woman.

The scheme of the legislation may be administratively coherent in the narrow sense that the rules are clear but it is questionable whether it is coherent in its approach to the rights and interests of either trans parents or children.

The GRA provides that a trans person’s acquired gender is their gender “for all purposes” (s9(1)), but they are required to register as a parent in their native gender. While acknowledging that the court was not in a position to legislate for a change in birth registration rules, it is difficult to accept that all the personal anguish and expense and court time required to determine two first instance claims and an appeal was a proportionate price to enable the law to cling to the words “mother” and “father”.  Why not, as these two claimants suggested, use language which is intrinsically gender-neutral, while recording their functional role in conception and birth? 

In adoption and surrogacy, gender-neutral language is used.  Where a person is adopted, the RG issues, in place of their long-form birth certificate, a true copy of an entry in the Adopted Children Register (s77 ACA 2002; ACACR 2005 reg. 2 and Sch. 1).  This records the name(s) of their adoptive parent(s) but does not describe them as “mother” or “father”, even though that is their legal status.  Similarly, where a person is born by means of surrogacy, legal parenthood is transferred from the surrogate to the commissioning parent(s) by means of a Parental Order.  The RG then issues a true copy of an entry in the Parental Order Register[3].  It has two spaces, each headed “Parent”: no reference to “father” or “mother” (HFEPO 2018 and POPPR 2010 Sch. 1) – even though, where there is only one commissioning parent, the law requires that they be the child’s genetic parent and, accordingly, the genetic mother or father.  One can question the coherence of a system which employs gendered language in one context but not in others. 

A proposal

A better system of birth registration would respect the recognised gender of trans parents while still enabling their offspring to identify their parents.  The long-form birth certificate should be replaced by a Record of Personal Origin (“RPO”) compiled and maintained by the RG. The RPO would identify, in non-gendered language, the genetic parents (including any contributor of mitochondrial DNA), any surrogate, and the legal parents or, in the case of surrogacy, the intended parents.  When a parental or adoption order is made the RPO would be amended accordingly and the RG would (as now) maintain a traceable link between amended versions and with the short-form certificate. 

The RPO should be confidential to the person whose birth is recorded and their descendants.  Legislation should provide that the short-form birth certificate is sufficient for all purposes except where there is a real reason for the production of the RPO – for example, an application for a first passport.

This system would require some amendments to existing legislation, and one new Act to govern the use of birth certificates (arguably needed in any case) but no more than has been required to reflect the changes which have been made to reflect the changes in adoption law, the advent of assisted reproductive techniques, the law governing gender recognition, and the changes to the law governing civil partnership and marriage.  As the ECtHR held in Goodwin [91], “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth”.  

Further reading

  • Natalie Gamble and Louisa Ghevaert The Human Fertilisation and Embryology Act 2008: Revolution or Evolution? 730 August 2009 Fam Law

[1] YY was the soubriquet given to Mr McConnell’s infant son, who was a co-claimant

[2] The Act does not yet provide for the position where a man is the mother

[3] This provision is under review: the Law Commissions of England and Wales and Scotland have proposed a “new pathway” in which the birth certificates of many or most surrogate-born people would not include any reference to the surrogate or the fact of surrogacy; see Law Commission, Building families through surrogacy: a new law 6 June 2019

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