What it is to be a father…
By: Laura Woodfine-Jones
Tags: Supreme Court, LGBTQ, Parenting, Law, Human Rights

Just last week (was it last week? I don’t know about you but lockdown weeks tend to blur…) I posted about Trump and the danger of a judiciary that follows a policy of originalism. The example I gave, was that if a law was written before gender fluidity and the acknowledgement of transgender individuals, then the law would not acknowledge or protect them now. Some people may think this example was extreme, or that originalism was only an issue in the US but let me introduce you to Freddy McConnell.

Freddy McConnell is an English journalist, a first time parent, on his passport a male but according to the UK courts he is not a father. Freddy is a transgender man, who began testosterone treatment in 2013 and went on to have a double mastectomy in 2014. Freddy also ensured that his NHS records and passport represented the person he is…a man. What Freddy did not do was have a hysterectomy, instead he chose to keep his options open and gave himself the chance to have a child.

Fast forward a few years and for the first time since 2013, Freddy pauses his testosterone treatment to conceive his first child. After a successful pregnancy Freddy gives birth to his son and becomes a single parent. This should become the point where Freddy and his son go home, they bond, they establish their family and live their lives, nothing headline worthy there. But whilst registering the birth of his child, Freddy is informed that in spite of his intentions to raise his child as a single father and in spite of the fact that Freddy was legally male when his child was born, the registrar rejected his request to be listed as the child’s father and insisted that Freddy be registered as his child’s mother.

Now I must admit, at this point in following this story I had to go google how to register a birth certificate; what became clear very quickly is that the UK government is desperately trying to keep up with the changes in society and the diversity of families. Sadly, what is also apparent is that depending on the composition of your family, there are varying degrees of complexity in the method of registering the birth of a child.

Fast forward again to 9 November 2020 and the UK Supreme Court has refused to hear Mr McConnell’s appeal. So having been to the High Court and then to the Court of Appeal, Freddy has come to the end of his options in the UK courts meaning his only option to be registered as his child’s father or parent lies in trying his chances with the European Court of Human Rights (“ECHR”). (In case you are wondering, as it stands Brexit will not impact a UK citizen’s right to appeal to the ECHR)

So how did we get here?

The conversation was not so much about what it means to be a father, rather what it means to be a mother. Taking a step back, the Oxford English Dictionary tells us a mother is “The female parent of a human being; a woman in relation to a child or children to whom she has given birth; (also, in extended use) a woman who undertakes the responsibilities of a parent towards a child, esp. a stepmother”. In the legal world the focus is on “to whom she has given birth to”.

The case centred around the Gender Recognition Act (“GRA”) which states that once a person acquires a gender recognition certificate, they become “for all purposes the acquired gender”; Mr McConnell acquired his certificate on 11 April 2017 and became pregnant shortly afterwards giving birth in January 2018. Therefore despite being a legally recognised male at the point of registering the birth, Freddy was told he would have to be registered as the child’s “mother”, although he could be registered with his current (male) name.

In coming to a decision at the High Court the judge made four main observations:

1- At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s “mother”.

2- The status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth.

3- Being a “mother” or “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific as it is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female; and

4- Section 12 of the GRA (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 father or mother of a child.”)is both retrospective and prospective. Meaning the status of a person as the father or mother of a child is not affected by the acquisition of gender under the GRA, even where the relevant birth has taken place after the issue of a gender recognition certificate.

In his submissions to the Court Mr McConnell argued that Section 12 of the GRA can only have retrospective effect, meaning that the issuance of a gender recognition certificate does not affect the status of a person as being either the mother or the father of a child if that child was born before the certificate was issued. He submitted that where the child is born after the certificate was issued section 12 can have no effect meaning that a person should be registered as parent of the child which they gender identifies them as.

The court of Appeal also rejected this argument stating that if Parliament had intended section 12 to only have retrospective effect then it would have stated this in the Act. This was partly due to the fact that the language of section 12 is similar to other sections of the Act which are intended to have retrospective and prospective effect; where as sections such as section 15 are clear in the intention of only having retrospective effect.

The argument therefore turned to whether this interpretation of section 9 and 12 of the GRA amounted to an interference of Mr McConnell’s rights under Article 8 of the Human Rights Act which protects your right to respect for your private and family life. The respondents and judges at the Appeal Court conceded that there was an interference with this right, but looked to a further provision under Article 8 which allows for a justified interference. Now this is where the key judgment from the Appeal Court comes, here the Judge states that the question is whether there is a legitimate interest for the interference and concludes that “ There clearly is. It consists of the protection of 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. It is important in this context to bear in mind that this is a question to be addressed at a general level. It does not turn on the facts of this or any other particular case. The question is not whether it would be in the best interests of YY to have the person who gave birth to him described as his mother on the long form birth certificate. The question is whether the rights of children generally include the right to know who gave birth to them and what that person’s status was.”

Now where an intrusion of a human right is acknowledged one of the questions is whether there is a less intrusive means of doing so… and for me this is where the Judiciary is in the perfect position to use the flexibility offered by a common law system to really investigate this possibility. Instead the Appeal Court judgment states “In approaching those questions, it is important to emphasise certain fundamental features of this case. ... First, the context is one in which difficult and sensitive social, ethical and political questions arise.... Secondly, it is important to appreciate that it is not only a question of interpreting one particular legislative provision in a way which might be different from its natural interpretation. As the parties themselves submitted during the hearing, there are many, inter-linked pieces of legislation which may be affected if the word “mother” is no longer to be used to describe the person who gives birth to a child.”

Therefore the Appeal Court comes to the conclusion that there is no incompatibility between the GRA and the Human Rights Act. So given that the Appeal Court acknowledged the sensitivity and far reaching impact should there be a change in interpretation, it seems juxtaposed that in its press release the Supreme Court goes on to say “On 9 November 2020, it was determined that permission to appeal be REFUSED because the applications do not raise an arguable point of law which ought to be considered at this time bearing in mind that the cases were the subject of judicial decision and reviewed on appeal.” And this is where the danger in originalism becomes clear, by interpreting the law as written without fully appreciating the change in society, in science and in technology you find that the law stands still while the world moves on. It means that the law can become unable to accommodate the world we live in and is unable to keep up with the discussion of the day.

Another side note in this legal journey is that the case actually started off anonymously, he was referred to as TT with a second appellant (his son) known as YY. Regardless of who the appellants were, there was scope for a discussion rooted in legal interpretation and how to resolve two potentially contradictory laws; to take laws written in different times, read them in the light of a changing society and establish whether or not they can continue to co-exist. Instead, the Supreme Court rejected to hear the appeal and we are instead subjected to a trial by media.

The anonymity order was overturned at the request of media organisations, who argued that because Mr McConnell had been part of a documentary about the conception, pregnancy and birth of his son whilst using his real name, he negated his right to an anonymous trial. In a statement at the time, the media organisations said Freddy had “put himself at the forefront of the debate on transgender rights” arguing that there was public interest in the question of how the law should recognise transgender parents suggesting it was wrong for the public not to make connect the documentary exploring a transgender man giving birth and the legal case challenging the law.

On the other side of the argument Mr McConnell’s lawyers argued for a right to privacy, fearing trolling and adverse behaviour as a result. This argument was supported by what Freddy’s lawyers called “insensitive and sarcastic” reporting by the Mail Online’s whilst the hearings were anonymised. So as a result of the anonymity order being overturned we see the legal debate being analysed by those driven by click share and sales rather than those with a lifetime of experience in interpretation and a deep understanding of the interweaving laws. It is this lifetime of training and accumulation of knowledge that makes it the duty of the Judiciary to hear the conversation and where necessary deploy what is known in the UK as the mischief rule which allows the courts to deal with ambiguity or contradiction by allowing a statute to be defined more broadly to overcome inconsistencies.

I am not naïve enough to profess that I know exactly what the solution is here, but I do not think it fits into the current registration process. I also do not believe that respecting a child’s right to know their biological parents and the right of a parent who wants to raise their child in a way that recognises their legal gender have to be mutually exclusive. What I do know, is that I feel let down by the Supreme Court. The power of the judiciary is to analyse, to review and where necessary to reform, none of which is possible if the Court refuses to engage in the conversation. This case is not an isolated instance, there is actually a case currently being heard in the German courts. Given this is not a one off instance, or as the media puts it is “ at the forefront of the debate on transgender rights” this was an opportunity for true judicial review and for that reason I hope Freddy and others go to the ECHR. If my time in the law has taught me anything, originalism (whether by explicit interpretation when giving a ruling or by refusing to hear a case) will never come to an adequate conclusion as we cannot move forwards without at least having the conversation.