This article was originally published in Issue 5 (May 2020).
The Court of Appeal has revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother.
Alfred McConnell was assigned female at birth but is legally recognised as male, as confirmed by a Gender Recognition Certificate issued in April 2017. Subsequent to his recognition as male, he became pregnant through inter-uterine insemination using donor sperm and gave birth to YY. When he came to register the birth, the Registrar General determined that Mr McConnell would have to be registered as YY’s “mother”.
Mr McConnell unsuccessfully attempted to judicially review this decision before the President of the Family Division sitting in the Administrative Court. Judgment was handed down on 25 September 2019. I explained the outcome of the judicial review in detail in this article in Issue 3 and in this podcast.
The President held that the status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth, a definition which was not necessarily gender specific. The relevant provisions of the Gender Recognition Act (“GRA”) did not affect the status of a person as the father or mother of a child, such that Mr McConnell was to be registered as “mother”. While the impact of the UK legislative scheme interfered with the Article 8 rights of both Mr McConnell and his son YY, this was justified, so there was no breach of Article 8 in relation to either parent or child (see by way of summary, - of the first instance decision).
On 29 April 2020, the Court of Appeal unanimously dismissed the Appellants’ appeal, respecting what it described as the view taken by Parliament that “every child should have a mother and should be able to discover who their mother was”, which took in to account the best interests of children “as a primary consideration” . The legislative scheme of the GRA required Mr McConnell to be registered as the mother of YY, rather than the father, parent or gestational parent. That requirement did not violate his or YY’s Article 8 rights and there was no incompatibility between the GRA and the Convention.
The Court of Appeal decision focuses on two key issues: (i) the correct interpretation of sections 9 and 12 of the GRA; (ii) whether this is compatible with the rights protected by the European Convention on Human Rights.
1) Statutory Interpretation
Sections 9 and 12 GRA read as follows:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
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.”
The Appellants argued that section 12 could only have retrospective effect, such that the issue of a gender recognition certificate would not affect the status of a person as being either mother or father of a child only if that child was born before the certificate was issued. The Respondents argued that it could have both retrospective and prospective effect.
The Court of Appeal held that it was clearly correct that section 12 GRA had retrospective and prospective effect, as held by the High Court. The ordinary meaning on the face of the provision was not limited to events occurring before a certificate was issued; to hold otherwise would render section 9(2) of the GRA otiose; the wording of section 12 was similar to wording in other sections of the GRA which mark out exceptions to the effect of a gender recognition certificate; and where Parliament had wished a section to have only retrospective effect, it had made that express  – .
The Appellants endeavoured to persuade the court that it should interpret the legislation in line with contemporary moral and social norms. In response, the Court of Appeal held that the High Court had already made clear that “mother” meant a person who gives birth to a child, rather than it being a gender-specific word. Further, if the argument was that “mother” should be construed as “father”, that would offend against statutory principles of construction. If the argument was that “mother” should be replaced by a new term such as “gestational parent”, that would amount to judicial legislation. .
2) Convention Rights Analysis
The court recognised that this meant that the state required a trans person to declare in a formal document that their gender is not their current gender but that assigned at birth, which represents a significant interference with their sense of identity  – . However, the court accepted that there was a legitimate aim, namely protecting the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. As to proportionality, the key debate surrounded whether less intrusive means were available to achieve the objective, and whether a fair balance had been struck between the rights of the individual and the general interests of the community (i.e. limbs (iii) and (iv) of the proportionality test as set out in Bank Mellatt v HM Treasury (no2)  UKSC 39 at  and .
The court stressed that “there are many inter-linked pieces of legislation which may be affected if the word “mother” is no longer to be used to describe the person who gives birth to the child.” Importantly, that word is used in section 2(2)(a) of the Children Act 1989 which provides that a mother has automatic parental responsibility from the moment of birth.
The word “parent” also has a distinct statutory meaning. When addressing the status of a person who gives birth to a child but who is not genetically related to them, by virtue of a surrogacy arrangement or because there has been a method of conception such as in vitro fertilisation, the policy choice of Parliament was that the person who gives birth to a child is always described as the mother, even if, for example, it was not her egg which was fertilised . Whereas a child can have more than one “parent”, the law is clear that a child only ever has one mother –  in respect of IVF;  –  in respect of surrogacy, and  in relation to adoption.
Significantly, there is no decision of the Strasbourg Court which suggested the Appellants’ interpretation was correct. The court noted that there was a case pending before the Strasbourg Court from Germany which
concerned similar facts. The German Federal High Court held that the legislative scheme required a registration of “mother”, placing emphasis on the right of a child of a trans person to know their origins. In analysing Article 8, the Federal High Court emphasised the wide margin of appreciation left to contracting states relating to the legal recognition of trans identities and the absence of European consensus -.
Interestingly, the Court of Appeal noted that whilst “we cannot exclude the possibility that the Strasbourg court may disagree with the courts in Germany… we respectfully suggest that their reasoning is compelling. On any view, we should not pre-empt the Strasbourg decision.” .
Finally, the court held that in applying the Human Rights Act there is a “margin of judgement”, analogous to the ECHR “margin of appreciation”, whereby appropriate weight is to be given to the judgment of the executive or legislature depending upon the context . A court has necessarily limited evidence with its focus limited to the parties before it. The Court highlighted that “we have no idea, for example, whether all trans men object to the use of the word “mother”… it may be that some at least wish to have the automatic responsibility for the child to whom they have given birth which section 2 of the Children Act 1989 currently gives them… if there is to be reform of the complicated, inter-linked legislation in this context, it must be for Parliament and not for this Court.” This was further reinforced by the relative lack of democratic legitimacy of the courts by comparison to Parliament -.
Mr McConnell has since indicated that he hopes to appeal to the Supreme Court. Given the movements at European level referred to in the Court of Appeal’s judgment, there may well be significant developments in this field. Recent research suggests that many European countries presently assign parental status according to birth gender (see this paper at p 61, prepared for the European Network of Legal Experts in Gender Equality and Non-Discrimination in November 2018); however, it is clear that increasing pressure is being placed on such systems by the reality of transgender parenting. The concept of a “margin of judgement” employed by the Court of Appeal has compelling roots, but in the future, domestic courts may be empowered by developments at European level.