Menu My portfolio: 0

Transgender man who gave birth to a child loses appeal to be registered as ‘father’ on the child’s birth certificate

McConnell & Anor v Secretary of State for Health and Social Care [2020] EWCA Civ 559

Related Member(s):
Sarah Hannett
Related Practice Area(s):
Human Rights, Discrimination and Equality
Court:

The question in this appeal was whether the Appellant, Alfred Mc Connell, a transgender man and holder of a Gender Recognition Certificate, was entitled to be registered as the ‘father’ or otherwise ‘parent’ or ‘gestational parent’ on the birth certificate of his son, YY, to whom he gave birth. The Registrar had registered Mr Mc Connell on YY’s birth certificate as “mother.” The Appellant applied for judicial review of that decision. The President of the Family Court issued a declaration of parentage on the basis that Mr Mc Connell was YY’s mother. Mr Mc Connell appealed both orders.

The Court of Appeal considered that the central question for the Court was a matter of statutory interpretation namely, whether the Gender Recognition Act, section 12 is retrospective only in effect or whether it can also have prospective effect. The Court held that it is both retrospective and prospective in its effect. The Registrar was correct to apply the ordinary interpretation of the GRA, section 12 to register Mr McConnell as YY’s mother.

The Court then turned to consider whether the correct interpretation of the GRA, sections 9 and 12 would give rise to an incompatibility with Mr Mc Connell’s Convention rights. The Court held that the requirement for a trans person to declare in a formal document that their gender is not their current gender but the gender assigned at birth represents a significant interference with the right to respect for family life.

However, the Court found that this interference was justified under Article 8(2) given that the interference serves to protect the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. The general question to be considered was whether the rights of children include the right to know who has given birth to them and what the person’s status was.

The Court of Appeal held that Parliament’s view 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. It recognised that others may take a different view and in time may be able to persuade Parliament to take a different view.

Mr Mc Connell’s appeals were dismissed. The legislative scheme did not violate his or YY’s Article 8 rights and there was no incompatibility between the GRA and the Convention.

Sarah Hannett was involved in this case.