The 36th LawAsia Conference 2023
I spoke about the identities of 'mother' and 'father' and the response of English law regarding organising via sex or gender identity
On November 25th 2023 I was delighted to give my presentation ‘Claiming the identity of ‘mother’ and ‘father’ - has the law in the UK got the balance right? It is notable that I was able to speak at a gathering including a transgender activist Dr Akkai Padmashali, who did not feel the need to shout me down for my bigotry or call the police. Nor did I have to face men in full face coverings screaming abuse at me and attempting to drown me out. It left me with an uneasy feeling about where my home country is going, in terms of respect for the rule of law and freedom of speech.
The presentation is below. TLDR - sex as an organising category remains important and relevant, particularly when an individual’s right to self actualise the gender of their choice, has consequences for those around them. If we need changes to the domestic law regarding birth registration, those must come from Parliament and with proper democratic accountability.
Queering the Family - has the UK got the balance right?
1. Recent years have seen a considerable shift in expectation that the concept of ‘gender identity’ should take precedence over biological sex as a protected characteristic, to reflect the increasing emergence of queer/non binary identities which reject rigid categorisations of ‘male’ and ‘female’. However, in terms of families comprised of ‘vertical relations’ between parents and children, there is significant resistance in current UK and European law to permit adults self identifying into the category of ‘mother’ or ‘father’.
2. There is a tension between the rights of adults to identify in a way that best matches their psychological conception of being, and the rights of children to know and understand their biological origins. I will consider how the current law manages this tension, and whether we have struck the right balance, by examining section 12 of the Gender Recognition Act 2004, R (on the application of McConnell) v Registrar General [2020] EWCA Civ 559 and OH and GH v Germany ECHR 105 (2023). Are there legitimate reasons to inhibit state recognition of the growth of queer-inclusive family life, when considering the different needs of the adult and child members of those families?
3. The underlying question is whether a trans person’s officially recognised gender identity should be determinative of all their rights and obligations. This is a particularly pressing issue in terms of membership of a family unit where the adults have responsibility for the welfare of the children.
What do I mean by family? And ‘queering’ the family?
4. It clear that what defines a ‘family’ in Europe and the UK has changed considerably in recent years and developed way beyond the traditional western ‘nuclear family’ – mother, father and children. But those family groups that contain children will inevitably adopt ‘vertical’ power structures; human children are born remarkably vulnerable and remain so for many years. Without constant and close attention from their adult caregivers they will die. Therefore, the ‘family’ I am considering is that unit of individuals, usually related genetically, where the younger members lack capacity or physical ability to keep themselves alive and where legal and moral obligations are placed on the adult members to keep them safe, provide them with clothing, food, medical care and education.
5. Family grouping that raise children are offered special recognition and protection by many legal systems, recognising that the variety of family life is one of the surest protections against totalitarianism. Lady Hale noted at para 73 Christian Institute v Lord Advocate [2016] UKSC 51, 2017 SC (UKSC) 29
Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world. Within limits, families must be left to bring up their children in their own way.
6. Most countries have a legal framework to legitimise the removal of children from adults who cannot provide a basic level of care and this highlights the inherent tension of the ‘vertical structure’ of a family unit. It can be very effective in protecting and advocating for children but also be a very damaging and abusive place. Few would presumably argue against state intervention in a ‘command and control’ model of families, for e.g where one or both parents assume coercive control over their children and compel them on pain of estrangement or worse, to follow a religion or sexuality, which is rejected by the children.
7. I have taken ‘queering’ to be derived from Queer Theory; in brief, which challenges existing traditional ideas about identity, sexuality, and gender – particularly that of heteronormativity, or the belief that heterosexuality is the natural or moral expression of sexuality. At first glance ‘queering the family’ might be seen as a useful way of ensuring that the ‘command and control’ model cannot gain ascendancy in a family unit and that it will protect the psychological integrity of the individual members of the family unit.
8. However, I think more thought needs to be given to individual adult choices which have the potential to directly impact other members of the family, particularly when those other members lack the capacity to advocate for themselves.
What tensions does the law need to navigate?
9. In UK law, an individual’s sex is fixed at birth and is either male or female. This position was most recently affirmed in Forstater v CGD Europe & Ors [2021] where the Employment Appeal Tribunal noted that only Parliament could intervene to change the current position that sex was treated as fixed at birth and immutable thereafter.
10. However, a legal fiction exists to challenge this ‘immutability’. The Gender Recognition Act 2004 was passed in response to the decision in Goodwin v UK (2002) 35 EHRR 18 which found the UK in breach of its obligations to protect a male to female transsexual’s ability to live in her chosen role without discrimination and embarrassment. The Act created a ‘Gender Recognition Certificate’ which mandates that its holder is to be treated as the opposite sex, in ‘all circumstances’ save where exceptions apply. The most pertinent to our current discussion is section 12, which states that ‘the fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as father or mother of a child’.
11. I pause to note that the GRA uses ‘sex’ and ‘gender’ interchangeably in the same sections and appears to treat them as synonyms. I don’t think that reflects current usage of those terms, but a recent decision of the Scottish Court of Session tells me I am wrong about this! 2023csih371cb71fe0-ea75-4892-b423-4751efe6e075.pdf (scotcourts.gov.uk)
12. The Equality Act 2010 offered further protection for those who wished to be seen as the opposite sex; it does not make ‘transgender identity’ a protected characteristic, but does protect ‘gender reassignment’
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
13. As Michael Foran of Glasgow University has commented via the social media site ‘X’.
where biological sex and gender reassignment are each recognised as distinct vectors for discrimination and inequality, is necessary to protect the rights of all. So long as biology remains an important factor in discrimination and inequality, it must remain an important aspect of anti-discrimination and equality law.
14. Any coherent and effective system of family law must manage a number of tensions. First as discussed above, it must protect the family unit from disproportionate state interference, while protecting children from abuse within the vertical structures of family arrangements.
15. The courts have had to grapple with the extent to which an individual can change their ‘gender identity’ and the consequences that flow from this, recognising an issue of fundamental importance for individuals. For example, R (C) v Secretary of State for Works and Pensions [2017] UKSC 72 :
…it does not take much imagination to understand that this is a deeply personal and private matter; that a person who had undergone gender re-assignment will need the whole world to recognised and relate to her or to him in the re-asssigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel;… it is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.
16. But family courts will encounter an extra layer of tension. A ‘family’ which undertakes the rearing of children, is not merely a group of individuals who exist independently from each other. The identities of each within that group can have a powerful impact on the identities of others. Determining who is ‘mother’ and who is ‘father’ cannot be simply a matter of private importance to the individual concerned.
17. Sir James Munby, a former president of the Family Division, put it this way, in the case of Re the Human Fertilization and Embryology Act 2008 [2015] EWCH 2602 (Fam)
The question of who, in law is or are the parent(s) of a child born as a result of treatment carried out under this legislation… it is, as a moments reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?
18. I will now examine how the law in the UK and Europe is currently grappling with the tensions around identities within families, starting with the McConnell case.
McConnell case
19. Freddy McConnell began medical transition to live as male in 2013, aged 22 years. He had a double mastectomy in 2014 and his passport and NHS records were amended to record him as male. In September 2016 McConnell suspended testosterone treatment and commenced fertility treatment at a clinic registered under the Human Fertilisation And Embryology Act 1990. In January 2017 he applied under the Gender Recognition Act 2004 (GRA) for a gender recognition certificate (GRC) which was issued on 11th April 2017. On 21st April 2017 donor sperm was placed in his uterus and he became pregnant giving birth to his son in January 2018. McConnell was required to register his son’s birth but was told on 22nd January 2019 that he would have to be registered as the child’s ‘mother’. He challenged this decision by a claim in judicial review in April 2018.
20. The matter first came the President of the Family Division, Sir Andrew McFarlane in 2019. For the first time, the English court was asked to define the term ‘mother’, in the context of an individual who has transitioned from female to male. Should McConnell be named ‘father’ on his child’s birth certificate? The court agreed that refusing this request is an interference with both the Claimant’s and the child’s Article 8 rights. The issue therefore was whether the interference was in accordance with the law, pursues a legitimate aim or otherwise strikes a fair balance.
21. The balance to be struck was between the individual parent’s right to privacy, the ‘lived-out’ reality of the family unit, the distress caused to a trans-man who was identified as ‘mother’, against the child’s right to know about their biological identity and the need to have an administratively coherent and certain scheme for the registration of births. The ‘best interests’ of the child is of primary importance in all considerations.
22. The court did not accept McConnell’s submission that the impact of section 9 of the GRA, that McConnell was legally male at the time of the child’s birth, meant he must as a matter of law be ‘father’ rather than ‘mother’. The 2004 Act did not alter the common law position which is based on the biological and gestational process so that a person who carries and gives birth to a child is that child’s ‘mother’ – regardless of their legal gender. Nor did anything in the Human Fertilisation and Embryology Act expressly alter the common law position.
23. The court considered Resolution 2239 (2018) on Private and Family Life: achieving equality regardless of sexual orientation, which was passed by the Parliamentary Assembly of the Council of Europe (PACE) on 10th October 2018 and which at para 4.6 calls for member states to provide for ‘transgender parents’ gender identity to be correctly recorded on their children’s birth certificates’. Also that previous ECHR authorities recognised ‘the right to gender identity and personal development is a fundamental aspect of the right to respect to private life’.
24. However, ultimately the President rejected McConnell’s wish to be recorded as ‘father’ on the child’s birth certificate. While recognising that sexual identity and choice of gender represented important elements in an individual’s identity, parentage was also an important element of identity and the statutory registration scheme pursued a legitimate aim of respecting the right of the child to know and have recognised, the identity of his or her biological father.
25. It is worth noting a ‘potentially striking’ aspect of the factual background was that McConnell had declared he intended to live as a male until his death in order to receive a GRC certificate but at the same time, he engaged in fertility treatment to achieve a viable pregnancy by artificial insemination. This was not disclosed to the GR Panel and the President raised the question as to whether McConnell’s GRC could be said to have been obtained by fraud. No other party wished to challenge the GRC and so this matter played no further role in the President’s deliberations. But I agree it is ‘striking’ that a woman who wished to live as a man and be seen by all others as a man, would also wish to have significant treatment in order to experience the uniquely female status of pregnancy and birth.
26. The court also noted at para 125 that the court was being asked to make a decision that has not been expressly provided for by Parliament in legislation, and has not been directly the subject of any previous decision of any court in England and Wales nor of the ECHR. Therefore there was a ‘pressing need for Government and Parliament to address squarely on the question of the status of a trans-male who has become pregnant and given birth to a child’.
27. McConnell then appealed to the Court of Appeal which delivered judgment on 29th April 2020. [2020] EWCA Civ 559. The court held that the ‘critical issue’ for the court (para 28) was whether section 12 of the GRA is retrospective only in effect or whether it can also have prospective effect. The second main issue was whether the otherwise correct interpretation of sections 9 and 12 of the GRA would give rise to an incompatibility with Convention rights.
28. McConnell continued to argue that section 12 could have no effect if the child was born after the issue of a GRC, asserting that the court should interpret the legislation in keeping with ‘contemporary moral and social norms’ on the principle that statutes are ‘always speaking’.
29. The Court of Appeal disagreed, finding that section 12 was both retrospective and prospective – if Parliament had wished it to have retrospective effect only, it would be clear through express language. The argument that ‘mother’ should be replaced by ‘parent’ or ‘gestational parent’ was not an exercise in statutory interpretation but would amount to judicial legislation.
30. Was the GRA then incompatible with Convention rights? The Court of Appeal rejected arguments that Parliament at the time of enactment had not given any or any sufficient thought to the issue that now arises and therefore there should be no margin of appreciation. This suggestion was contrary to fundamental principle and the court should simply ask – is the legislation enacted by Parliament compatible or not.
31. The first question whether there was an interference with McConnell’s rights under Article 8 is answered ‘yes’. Is this interference capable of being justified? The interference is in accordance with the law, and has a legitimate aim, to protect the rights of others and maintain a clear and coherent scheme of registration of births. When considering the requirement of proportionality, the Court of Appeal recognised the context is one in which ‘difficult and sensitive social, ethical and political questions arise’ and there was not a uniform approach from other member states.
32. Determination of this issue was simply not the job of the court. Parliament had taken the view that it is in every child’s best interests to have a mother and to discover the identity of their mother. Others may take a different view and may be able to persuade Parliament in time to agree. Legislators have the ability to acquire information to inform policy decisions from the widest possible range of opinions, which the court does not. Thus Parliament enjoys a ‘democratic legitimacy’ denied to the courts.
33. Therefore the Court of Appeal determined that the legislative scheme of the GRA did not violate McConnell’s or his son’s rights and the appeal was dismissed. McConnell was denied permission to appeal to the Supreme Court. Therefore it appears that in England and Wales at least, we await Parliamentary intervention in this issue.
34. Other cases from Europe take a similar approach.
A.H. and others v Germany 04.04.2023 (app. No. 7246/20)
35. This case concerned a refusal by the German authorities to register AH, a male to female transsexual, as mother of LDH on the birth register. AH was born male but changed from male to female registration in the relevant public records. AH then provided sperm to GH who gave birth to LDH. AH and GH entered into a registered civil partnership and both requested to be registered as LDH’s mother.
36. This was refused because domestic law defined the mother as the person who gave birth to the child. AH could be registered as LDH’s father under his former name. The ECtHR upheld Germanys decision and found that German legislation provided that the previous recorded sex and name of the transgender parent had be recorded, not merely when the birth took place before any final recognition of the change of parent’s status, but also when the child had been conceived or born after the parent’s gender reclassification.
37. The ECtHR considered that the German courts had struck a fair balance; AH was recognised as a parent, there were few circumstances in which AH’s transgender identity would be revealed on presentation of the birth certificate as it was possible to obtain a short form certificate that did not mention the parents at all. AH and GH’s rights had to be balanced against LDH’s rights to know her origins and also the public interest which lay in the coherence of the legal system and the accuracy and completeness of the civil registration records.
38. The ECtHR found no human rights breach, reiterating that States enjoyed a certain broad discretion (“margin of appreciation”) in implementing their positive obligations under Article 8 and requiring to strike a balance between competing private and public interests or conflicting Convention rights. There was no consensus among European States as to how to indicate in birth registers that one of the parents was transgender. The majority of States continued to designate the person who had given birth to the child as the child’s mother and to allow the person whose sperm had contributed to the reproduction to claim paternity.
39. The German courts had emphasised that motherhood and fatherhood, as legal categories, were not interchangeable and differed in terms of both the preconditions attached to their respective justification and the legal consequences arising.
Tentative conclusion
40. It is my view that an examination of UK and European case law, sounds a warning and a reminder that boundaries and categories are not necessarily a tool of oppression, but an essential part of how we protect children and provide them also with the dignity of an identity that is recognised and preserved.
41. I assert that there is no doubt that legal and social recognition of a person’s identity is very important. But we must also recognise that an individual claim to a change of identity relating to something as fundamental as sex cannot simply be asserted in isolation to its impact on the identities of others in society in general and within the family in particular. ‘Mother’ and ‘father’ have been distinct terms for thousands of years, relating to the biological role each parent plays in conception. ‘Mother’ is one of only 23 words which are ‘ultra conserved’ meaning linguists have been able to track the word over 15, 000 years. Ultraconserved words point to deep language ancestry across Eurasia | PNAS
42. While I concede the waters get somewhat muddied by surrogacy – a discussion which I don’t have room for here - there remains for many a deep need to know who gave birth to them. The singularity of the status of ‘mother’ explains why the roles of male and female parents are kept distinct as legal status and why children adopted in the UK now are given information about their birth parents and the ability to seek them out when they are older. This is in recognition of the harm done to identity and psychological integrity by denying information about one’s genetic origins.
43. While I will celebrate the development of laws and social policy which permit ‘family’ to mean something more than the heteronormative boxing of mum, dad and two children, I will not celebrate any suggestion that the rights of one individual within that group to claim an identity of choice, must be elevated beyond the impact on all others within that family group. For example the rise of the ‘transwidows’ movement in the UK shows the distress of female spouses whose marriages end after the decision of their male spouse to transition.
44. I think that while such adult distress should not be ignored, my concern is particularly directed at those children who have no voice other than that which is raised by their adult carers. There must be boundaries erected against unfettered individualism when adult choices will have a profound impact on children, too young to have their own voice. I have looked for discussion of this issue from a LGBTQIA+ perspective but have not found it; rather there is an assumption without any apparent investigation that it is in the child’s best interests that a parent’s self-identity is supported by legal structures.
45. The journey to self actualisation is one we can only reliably take on our own but when young, we need others to provide an environment to make it possible. As psychoanalyst Karen Horney wrote in Neurosis and Human Growth (now in its 40th edition!)
Only the individual himself can develop his given potentialities. But, like any other living organism, the human individuum needs favourable conditions for his growth ‘from acorn into oak tree’’; he needs an atmosphere of warmth to give him both a feeling of inner security and the inner freedom enabling him to have his own feelings and thoughts and to express himself. He needs the good will of others, not only to help him in his many needs but to guide and encourage him to become a mature and fulfilled individual. He also needs healthy friction with the wishes and wills of others. If he can thus grow with others, in love and in friction, he will also grow in accordance with his real self
46. In my view, a nurturing family unit one of the best and most reliable environments for growth and security for all the participants. But it can only be created and maintained by recognising the rights of all of its members, and a willingness to recognise and manage what conflicts and tensions inevitably arise between the different needs and wishes of members of the group.
47. I think the current jurisprudence of the UK and Europe does strike the right balance. But as the President commented in the McConnell case, there does seem to be a ‘pressing need’ for Parliament to address this issue. And that is surely where these issues are best tackled – with opportunity for public consultation and a wide consideration of the available evidence. Possibly the legal landscape will look very different in another decade but for now, the legal status of mother and father reflects material reality rather than individual choice.
Sarah Phillimore
St Johns Chambers
November 6th 2023