Transgender birth mother can't be recognized as baby's father: appeals court

Court says the best interests of children should be taken into account

By Samuel Smith, Deputy Managing Editor Monday, May 04, 2020

A trans-identified female in England can not be listed as the father of a child to whom she gave birth, an appeals court ruled. 

A three-judge panel from the Court of Appeal of England and Wales headed by Lord Chief Justice Ian Burnett last week upheld an earlier high court ruling against 34-year-old journalist Freddy McConnell. 

“At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s ‘mother,’” the appeals court decision reads. “The status of being a ‘mother’ arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth.”

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According to court documents, McConnell has identified as a male since age 22. McConnell underwent a double mastectomy as well as hormone treatment. But after stopping the hormone treatment in 2016 and undergoing intrauterine insemination fertility treatment, McConnell became pregnant and gave birth in January 2018. 

The court’s ruling supports the earlier decision in which the High Court of Justice, Family Division ruled that motherhood is defined as a “status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth” no matter what gender the mother is recognized as under the Gender Recognition Act of 2004. 

The earlier high court decision had also “laid emphasis on the right of a child of a trans person to know its origins.”

The appeals court stated in its ruling that the legislative scheme of the Gender Recognition Act required McConnell to be registered as the mother of the child rather than listed as the “father, parent or gestational parent.” 

“That requirement did not violate his or YY’s Article 8 [of the European Convention on Human Rights] rights,” the rulings read. “There is no incompatibility between the GRA and the Convention. In the result we dismiss these appeals.” 

The ruling asserts that the “law is clear that a child only ever has one mother, although there may be more than one ‘parent.’” 

According to the Court of Appeal, being a mother or father “with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so.”

“It is now possible, and recognized by the law, for a ‘mother’ to have an acquired gender of male, and for a ‘father’ to have an acquired gender of female,” the court said. “By virtue of that section the status of a person as the father or mother of a child is not affected by the acquisition of gender under the [Gender Recognition Act], even where the relevant birth has taken place after the issue of a GRC.”

The court stressed that the United Nations Convention on the Rights of the Child requires that “the best interests of children generally should be taken into account as a primary consideration when striking a balance in legislation.”

“In our judgement, that is precisely what Parliament has done in enacting a carefully crafted set of provisions which balance the rights of transgender people and others, including their children,” the rulings contends. “The view that Parliament has taken is that every child should have a mother and should be able to discover who their mother was, because that is in the child’s best interests.

“Others may take a different view and in time may be able to persuade Parliament to take a different view. What cannot be doubted is that Parliament has taken into account the best interests of children as a primary consideration.”

The appeals court also opined that the “grounds of appeal before this Court did not raise Article 14 of the Convention, which confers the right to equality in the enjoyment of the other Convention rights.” 

“We consider that Article 14 raises no separate issue in the circumstances of this case,” the ruling reads. “Any difference of treatment which is contained in the relevant legislation is objectively justified for the reasons we have already set out in relation to Article 8.”

In a statement, McConnell’s legal team at Laytons LLP chastised the ruling as a “narrow interpretation” of the Gender Recognition Act that “will force all transgender people to choose between being a parent and having full recognition of their gender.”

“The judgment asserts the term ‘mother’ and ‘father’ are not gender bound while simultaneously forcing registration according to the transgender individual’s birth gender,” the statement reads. “This is not only an unjustifiable interference in his rights to a family and private life, but even domestic legislation in the UK birth allows other individuals on birth certificates to be identified simply as ‘parents.’”

McConnell wrote on Twitter that it was a “[d]isappointing, conservative decision.”

“[W]e knew this would be a long fight,” she told LGBT supporters online. “Don’t lose hope. We are applying to the Supreme Court. Trans parents will get legal recognition.”

The ruling was also criticized by the U.K.-based LGBT rights group Stonewall. Stonewall Director of Campaigns, Policy & Research Laura Russell said in a statement that the courts “missed a vital opportunity to send a positive message that recognizes all parents for who they are.”