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Re TT and YY: when a 'Father' is a 'Mother'

7 October 2019
Appeared in BioNews 1018

In Re TT and YY [2019] EWHC 1823 (Fam), the UK High Court decided that a trans man (called TT in court documents), could not be named as a 'father' on his child's (YY) birth certificate because he gave birth to YY. Instead, he had to be named as the 'mother'. 

The facts of Re TT and YY have been previously documented (see BioNews 1017). TT was assigned female at birth, later transitioned to male and is now called Freddy McConnell. He received a Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA), legally stating his gender (and sex) as male. Central to this case was whether this meant the Registrar General should register him as the child's father. The Registrar General refused, leading TT to request a judicial review of the decision.

The definition of 'mother'

In deciding that TT could not be registered as the 'father', the judgment defines 'mother' for the first time under English common law. Sir Andrew McFarlane (President of the Family Division of the High Court), framed 'mother' status purely in terms of reproductive experience (para. 279). He says that 'mother' status follows from the 'biological role in giving birth' and is separate from one's gender: TT is a 'male mother'. 'Male' in the sense that TT has received legal recognition of his male gender but a 'mother' due to giving birth. Therefore, it is accepted that those of the male gender can give birth.

The decision raises a potential inconsistency between this legal meaning of 'mother' and its everyday meaning, which seems to be gendered, and is thus an unacceptable term for most trans men. Since TT has been afforded legal recognition as a male, he sees 'father' as more appropriate, and some may question why the birth-giver should be termed a 'mother' other than because this is how the law has always operated. 

The judge also considered the meaning of 'mother' in various statutory contexts. Important amongst these was section 33(1) of the Human Fertilisation and Embryology Act 2008, which says that the 'mother' is the 'woman' who gives birth. 

Some feminists have actively sought to disassociate motherhood from childbirth, arguing that 'motherhood' is a state of doing rather than something achieved automatically through childbirth. The definition may also fail to engage with the lived reality of trans people, surrogates – who largely do not see themselves as mothers – and adoptive parents.

The option for trans men to be registered as a 'parent' was not discussed in the judgment, despite forming part of TT's arguments.

Aside from the common law, the case also considered the situation under the European Convention on Human Rights (ECHR). It was accepted that the UK's birth registration scheme did interfere with TT and YY's Article 8 ECHR right to a private and family life, but this was found to be proportionate and justified. This was because naming the birth-giver 'mother' was necessary for a 'coherent and certain' birth registration scheme (paras. 270 to 271), which also upholds the rights and interests of others.

Retention of the 'traditional' (sexual) family and mismatches between law and identity

The law may be seen to privilege a certain portrayal of 'family' life. On parental orders and adoption certificates (which transfer legal parenthood in cases of surrogacy and adoption, respectively), there is no field for 'mother' or 'father' – only 'parent'. Technically, then, a child can only have a mother and father (correctly identified) by being born to a cisgendered, heterosexual woman, and her male partner. There is no provision to have two 'mothers' or 'fathers', and certainly no way to have more than two legal parents (which can be achieved in jurisdictions such as British Columbia, Canada, and California).

There is also an inherent tension between sections 9 and 12 of the GRA: someone can 'acquire' a gender (and sex) under section 9 'for all purposes', but under section 12 this is not recognised in relation to parenthood. This mismatch inevitably brings into question the purpose of a GRC and legal gender recognition generally. A Government-led consultation on the GRA closed in October 2018, so some of these aspects may be considered.

It may also be argued that TT and YY's Article 14 ECHR rights (prohibition of discrimination) were not given sufficient weight, because birth registration issues will, potentially, impact trans people disproportionately. The balancing exercise between trans people and other affected parties was clearly in favour of ensuring 'coherency and certainty' as understood by the 'traditional' cis-heteronormative family.

This judgment may seem at odds with the growing acceptance of the rise in 'non-traditional' family structures.

One option open to the judge would have been to issue a declaration of incompatibility, especially as some EU countries (like Sweden) allow trans parents to register births in their 'acquired' gender. The European Court of Human Rights has also made several decisions reflecting the 'social reality' of family life which may mean that trans men and women should be registered according to their 'acquired' gender (and sex) in the interests of all involved.

In his judgment, Sir Andrew called on Government and Parliament to address the issue of a trans man giving birth 'square-on' (having also previously called for a review of existing fertility laws- see BioNews 987).

Mr McConnell has announced his intention to appeal, to the Supreme Court if necessary. If the issues at hand really are a matter of public policy, then it is imperative that Government and Parliament step up to the task. If a subsequent court finds they are a matter of law, it must step up too.

R (TT) v Registrar General for England and Wales & Ors [2019] EWHC 2384 (Fam) |  25 September 2019
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