Call to modernise law after transgender man loses birth certificate battle
Ministers are being urged to modernise the law after a transgender man who has given birth but does not want to be described as “mother” on a birth certificate lost a High Court fight.
Freddy McConnell, a multimedia journalist who works for The Guardian, wants to be registered as father or parent.
A senior judge on Wednesday ruled against him after a High Court trial in London.
Sir Andrew McFarlane, President of the Family Division of the High Court, concluded that people who had given birth were legally mothers, regardless of their gender.
Mr McConnell’s lawyer said the ruling highlighted “how the law is slow to keep up to modern society”.
Campaign organisation Stonewall said legislation “desperately” needed updating to ensure that trans people were “recognised for who they are”, and Sir Andrew said there was a “pressing need” for ministers to address “square-on” the “status” of trans men who had given birth.
The judge heard how Mr McConnell was a single parent who was born a woman but now lives as a man following surgery.
He was biologically able to get pregnant and give birth but had legally become a man when the child was born.
A registrar told him that the law required people who give birth to be registered as mothers.
He took legal action against the General Register Office, which administers the registration of births and deaths in England and Wales.
Sir Andrew said there was a “material difference between a person’s gender and their status as a parent”.
“Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth,” he said in a written ruling.
“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’.”
Lawyer Karen Holden, who represented Mr McConnell and is the founder of A City Law Firm, said an appeal was being considered.
She said she was disappointed by the ruling and added: “It highlights how the law is slow to keep up to modern society.”
Laura Russell, Stonewall’s Director of Campaigns, Policy and Research, said: “We believe this ruling is a missed opportunity to send a positive message and recognise all parents, including LGBT parents, for who they are. This legislation desperately needs to be updated to ensure trans people are recognised for who they are in all areas of their lives.”
Sir Andrew said Mr McConnell had “properly and bravely” raised the issue.
The judge said he had made a decision based on legislation and case law but added: “There would seem to be a pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child.”
He said no judge had previously been “required to determine” the definition of “mother” under English common law.
Sir Andrew said Mr McConnell regarded the term “mother” as being “gender specific”.
The judge said he had decided that as a “matter of law” the term “mother” was “free standing” and therefore there could be “be male mothers”.
But Sir Andrew added: “I fully accept that this is not (Mr McConnell’s) perspective and is unlikely to be the perspective of others who, like (him), suffer from gender dysphoria.”
The judge said Mr McConnell saw a requirement to register as “mother” as a “frontal assault on the integrity of his acquired male gender”.
Sir Andrew heard argument from lawyers representing Mr McConnell, the child, the head of the General Register Office, Department of Health and Social Care ministers and Home Office ministers.
Barrister Hannah Markham QC, who led Mr McConnell’s legal team, said many children were growing up in “rainbow families” and argued that a child had a right to have a parent’s gender “appropriately identified” on their birth certificate.
Barristers representing ministers and registrars said a registrar had a “duty in law” to register Mr McConnell as “mother”.
Lawyers said the child would have been the first person born in England and Wales not to legally have a mother had Mr McConnell won.