HCR Law Events

24 June 2020

Gender identity and birth registration

Can someone who is legally a man be registered as his child’s mother? That is essentially the question which has faced the High Court and the Court of Appeal, and may reach the Supreme Court, along with questions surrounding the concepts of mother and father.

The words themselves bring with them societal expectations and normative connotations, explored in the case of TT, who was born female and thereafter transitioned; at the time of the child’s birth, he was living as a man. He had a Gender Recognition Certificate and therefore a birth certificate and was legally  male.

He gave birth to his child and sought to register himself as father on the child’s birth certificate, he being the only parent as the child had been conceived using a sperm donor.

He was advised by the registrar that his only option was to register himself as his child’s mother, bringing into play an array of legislation including the Human Fertilisation and Embryology Act 2008 which covered the conception through IVF, his gender reassignment under the Gender Recognition Act 2004 and the registration itself under the Births and Deaths Registration Act 1953.

Unhappy with this suggestion, the father brought the matter to the family court. The applicant’s legal team argued that it was ‘wrong to focus on giving birth as the determining issue when deciding parental role’, and that the judge was wrong to suggest that ‘the term ‘mother’ was not to be a gendered term’.

The case certainly brought into consideration whether the current registration system for births was fit for purpose. His legal team argued that ‘being a mother is a social construct’, that he was being effectively misgendered and that this was in itself distressing. He did not succeed in the High Court, which ruled that he could not be registered as the child’s father, and that motherhood was about being pregnant and giving birth, regardless of whether the person who does so was considered a man or a woman in the eyes of the law.

He appealed and the matter came before the Court of Appeal with judgment in April; it upheld the High Court view and paid close attention to the Gender Recognition Act 2004, citing an exception. The Court of Appeal stated that continuing to call transgender men mothers on birth certificates would protect the rights of the children to know who gave birth to them and that person’s status. It was also stated that any breach of the father’s right to family life under the Human Rights Act was justified by the need to maintain a clear and coherent scheme of registration of births.

The case clearly sets parents’ rights against the rights of their children. The father has indicated a wish to seek leave to take the matter to the Supreme Court, maintaining that this decision is a breach of his Human Rights.

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