14:00, March 04 281 0 theguardian.com

2020-03-04 14:00:08
Transgender man appeals decision not to be named father

“Mother” is a gendered term and so should not be used to describe a transgender man who gave birth in 2018 after transitioning from female to male, the court of appeal has been told.

Freddy McConnell, a journalist who writes for the Guardian, is appealing against a high court ruling that he could not be named as the father or parent on his child’s birth certificate.

Sir Andrew McFarlane, the president of the family division, last year ruled 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. McConnell held a gender recognition certificate that made it clear the law considered him male.

Representing him, Hannah Markham QC said McFarlane was “wrong to focus on giving birth as the determining issue when deciding parental role” on the birth certificate and that the judge “fell into error in determining the term ‘mother’ not to be a gendered term”.

She said the judge had failed to consider whether the current birth registration system was “fit for purpose”. She argued that giving birth was not the determining issue when deciding the parental role described on an administrative document.

“In society, being a mother is a social construct and for a person who is trying to move away from those gendered terms because of their gender dysphoria, then that is an offence to their right to a private life, an offence to their being and identity,” Markham said.

She told the court the situation had caused McConnell distress, and the impact on him had not fully been taken into account.

“We are talking about the impact on transgender people of being misgendered and it is the right and responsibility of this court to ensure that this does not continue,” she said. “Parenthood has many hats and what we mustn’t do is tie this up in a gendered way.”

The legal dispute began when McConnell went to register his child’s birth and the registrar insisted he be recorded as “mother”. His journey to parenthood was captured in a feature film, Seahorse. He said he was “saddened” by the decision which said had “serious implications for non-traditional family structures”.

McConnell started testosterone treatment in April 2013 and underwent 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. He became pregnant in 2017 using sperm from a donor.

His unwillingness to be recorded as his child’s mother plunged him into a web of different laws. His intrauterine insemination fertility treatment was governed by the Human Fertilisation and Embryology Act 2008 which defines treatments as “assisting women to carry children”, his gender reassignment was under the Gender Recognition Act 2004 and he registered the birth under the Births and Deaths Registration Act 1953 which allows for people to tick “father/parent” only where a woman is to be a second female parent.

The appeal hearing is set to conclude on Thursday.