Should transgender parents be free to choose how they are recorded on their children’s birth certificates? The UK High Court is asked to decide

NGA_Stock_101A transgender man who has given birth in the UK, has taken an important case to challenge UK law, arguing that the requirement for him to register as his baby’s ‘mother’ on the birth certificate is incompatible with his Article 8 human right to respect for private and family life.

The man was biologically able to conceive and give birth, but had been granted a Gender Recognition Certificate to reflect his true gender and so was legally a man when his child was born. He did not wish to be registered as his child’s ‘mother’ since that was not his identity and not reflective of how his child would know him growing up.

However, UK law takes a rigid approach to parental titles on birth certificates. Whether someone is recorded as a ‘mother’, ‘father’ or ‘parent’ depends, not on their choice, but on what the law says about their legal status (with a complicated set of rules for parents who conceive naturally and through artificial insemination and IVF). The Gender Recognition Act 2004 does not adequately deal with this issue either. The only reference to parenthood status is section 12 of the Act 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 the mother or father or the child’. While helpful to clarify that a person does not lose their connection with an existing child, this does not deal with children born after a transition and nor does it make it possible to amend a child’s birth certificate to reflect their parents’ true gender.

The case to challenge this is in its early stages. Following the preliminary arguments, High Court judge Mr Justice Francis said that if the man’s right to a private and family life is found to be in breach, the law will need to be amended. However, no decision has yet been made and a subsequent hearing is expected in September 2018.

This case demonstrates a significant gap in the law when it comes to birth certificates and recognising modern families (and it is not the only one – children with more than two parents and children born through surrogacy also cannot obtain birth certificates which recognise the reality of their parentage at birth). We believe that the laws on gender recognition in the UK need to be more flexible to allow transgender parents to be properly recognised on their children’s legal documents. It is hoped that this case also gives the government the push to progress matters with reforming the Gender Recognition Act 2004. For more information on the expected legislative review on transgender rights in the UK, see our November 2017 blog.

You can find out more about family law issues for trans people on our Knowledge Centre and you can contact us on hello@ngalaw.co.uk if you would like more information on your personal situation.

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