08:43, September 25 137 0 theguardian.com

2019-09-25 08:43:04
Transgender man loses court battle to be registered as father

A transgender man from Kent who gave birth with the help of fertility treatment cannot be registered as his child’s father, the most senior family judge in England and Wales has declared in a ruling.

In the first legal definition of a mother in English common law, Sir Andrew McFarlane, the president of the high court’s family division, ruled on Wednesday that motherhood was about being pregnant and giving birth regardless of whether the person who does so was considered a man or a woman in law.

Freddy McConnell, 32, who has lived as a man for several years but retained his female reproductive system and gave birth in 2018, went to court after a registrar insisted he was recorded as the baby’s mother on the birth certificate despite holding a gender recognition certificate that made clear the law considered him male.

The ruling will be considered a blow to transgender rights, with trans men wanting to be considered fathers of their children.

“Being a ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific,” McFarlane concluded in a judicial review.

“There is 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.

“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’.”

McConnell, a Guardian multimedia journalist who had experienced gender dysphoria since childhood and realised he was trans in 2010, aged 23, said he was “saddened” by the decision, which went in favour of the government and the registrar, which resisted McConnell’s claim to be recognised as his child’s father.

“If it is upholding the status quo then I am really worried about what that this means not just for me but other trans people who are parents or who want to become parents,” he said. “It has serious implications for non-traditional family structures. It upholds the view that only the most traditional forms of family are properly recognised or treated equally. It’s just not fair.”

McConnell has long lived as a male, starting testosterone treatment in April 2013 and undergoing chest reshaping surgery in Florida. In 2016, he sought advice from a fertility clinic about becoming pregnant. His hormone treatment was suspended, which had the effect of reversing some of the gender-reassignment process leaving him destabilised, which he described as a “loss of myself”. His menstrual cycle restarted and he became pregnant in 2017 using sperm from a donor. He gave birth in 2018.

His journey to parenthood was captured in a recent feature-length documentary, Seahorse, a reference to the fish that reproduce through male pregnancies.

The judge praised McConnell for “properly and bravely” bringing his case and said there was a “pressing need” for the 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 existing legislation and UK and European human rights case law “do not themselves directly engage with the central question”.

In July, McConnell’s anonymity in the case was lifted following applications from news media organisations who argued that the self-generated publicity around the pregnancy and birth in the film and the public interest in the question of how the state recognised parenthood meant his identity should be known.

McConnell’s wish to be registered as his child’s father plunged him into a web of different laws. His in utero insemination fertility treatment was government by the Human Fertilisation and Embryology Act 2008, his gender reassignment was under the Gender Recognition Act 2004 and he registered the birth under the Births and Deaths Registrations Act 1953, a piece of 66-year-old legislation.

The registrar’s insistence that McConnell be registered as “mother” appeared to McConnell to be a result of an administrative need for every child to have a registered mother and this was a breach of McConnell’s rights under the 1998 Human Rights Act, his lawyers argued. Finally, those acting for the child applied under the 1986 Family Law Act for a declaration that McConnell was his father.

McFarlane concluded the decision to register McConnell as a mother did not breach his or his child’s human rights and that as the Gender Recognition Act was both retrospective and prospective, it was in line with that law too.

The Aire Centre, a legal charity that helps people assert their human rights, also intervened in the case to highlight the right of children to be protected from discrimination due to the sexual orientation or gender identity of parents, as well as children’s right to know their lineage.