Gender identity and family law reform is required
We have seen the law in England & Wales react to modern family developments over the past 50 years, including surrogacy, adoption, IVF, and civil partnerships. Many will view the Court of Appeal’s refusal to register Mr. McConnell as the father of his child’s 2018 birth, as a step in an unfavorable direction.
Background
McConnell, a transgender man, has lived as a man since his twenties. In April 2017, he was issued a Gender Recognition Certificate, which means that his gender “becomes the acquired gender”. His passport and his NHS records are two examples of formal documents that document his acquired gender.
McConnell stopped hormone treatment and got pregnant in January 2018. He was informed at the birth registration that he would need to register as his mother. However, registration could still be made under his current (male), name.
Mr. McConnell challenged the position of the Registrar and applied for review along with a request for a declaration that our domestic laws were incompatible with his human right. A Guardian represented the child and filed a request for Mr. McConnell to be declared his ‘father’ as per s.55A Family Law Act. He also requested parental responsibility.
Sir Andrew McFarlane, President of the Family Division heard the case at the first instance. He stated that gender and parent status can differ between people. The person who has given birth and is pregnant is called a mother. The President used the common law definition of the mother “before the mid-20th century when conception and pregnancy were unknown” and when “motherhood was established through the act of giving birth” to make this determination.
Appeal Court
The Court of Appeal rejected Mr. McConnell’s appeal against the judgment last week. Although Mr. McConnell’s human rights may have been violated, the Court of Appeal rejected his appeal. The Court of Appeal weighed in that children’s rights to know their biological reality outweighed parents’ rights to be identified on their birth certificates as their legal gender. The Gender Recognition Act’s underlying legislation was reviewed. The specific exclusion in paragraph 12 that “a person’s gender has been the acquired gender under the Act does not affect the status of the person the father or mother of the children” was found to have retrospective and perspective effects.
The Court of Appeal has concluded that the exception was intended by parliament and that there is no legal basis to interfere with the underlying laws. Although the Judgement acknowledges that Parliament may change its mind in time, for now, Mr. McConnell will be listed as his mother on the child’s birth certificate.
McConnell made it clear that he will appeal to the Supreme Court. He hopes to follow the example of Charles Keidan and Rebecca Steinfeld, who followed a similar path through courts to obtain legislative changes. They won a ruling from the Supreme Court stating that the 2004 Civil Partnership Act was not compatible with the ECHR. The government then introduced legislative changes to allow mixed-sex couples to register for civil unions. Civil partners were made on 31 December 2019.
Many people disagree with the Court of Appeal. They see the Gender Recognition Act’s current legislation as incompatible with the ECHR and out of sync with modern society. It will be interesting to see how another area of divorce lawyer surrey free consultation develops and responds to modern families if Mr. McConnell’s case goes to the Supreme Court. A separate question regarding the UK’s relationship to the ECHR following Brexit is also on the horizon.
