Liam Davis is a law PhD student at the University of Bristol. He tweets as @LiamJamesDavis.
With diverse formally formations increasing, it is arguable that the birth registration system is not fit for purpose because it is tethered to ‘traditional’ understandings of family life and cannot adequately account for ‘modern’ families. This post considers mismatches between law and identity within birth registration for trans parents.
This post is inspired by my article, “Deconstructing tradition: Trans reproduction and the need to reform birth registration in England and Wales”, published in the International Journal of Transgender Health. A limited amount of free copies are available direct from the publisher, here. Otherwise, you can request an Open Access copy through my university profile/emailing me, or by tweeting me.
Background
You would be forgiven for thinking that the term “male mother” is an oxymoron, but this is the conclusion the Court of Appeal reached in R (McConnell) v The Registrar General for England and Wales [2020] EWCA Civ 559 regarding a trans man, Freddy McConnell, who gave birth and wanted to be registered as his child’s father (or parent) on the birth certificate.
The High Court, in an earlier decision (upheld by the Court of Appeal), held that ‘mother’ “arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth” (para. 280). In other words, a ‘mother’ is someone who gives birth, and they can be legally male (like Mr. McConnell). This was held to be in the child’s best interests (the courts’ paramount consideration under section 1 of the Children Act 1989).
Both Courts employed different reasoning to reach the same result, however. The High Court’s judgment is more contextual and engages substantially with the concept of male motherhood, while the Court of Appeal’s is more clear-cut in its analysis of the relevant domestic/international legislation, shying away from discussion of ‘male mothers’ (indeed, the term is not used at all). The overall conclusion, though, is the same: Mr. McConnell is, legally, a male ‘mother’.
My article considers the law’s role in perpetuating ideas of the ‘traditional’ family by analysing case law, legislation, and primary empirical research. The ‘traditional’ family (inspired by Fineman, 1995), is the cisgender, heterosexual, nuclear family. The article examines access to gendered parental statuses (‘mother’ and ‘father’) – and the likelihood of agreeing with these terms – on the birth certificate, and how such terms are invariably reserved for ‘traditional’ families. This prioritisation leaves ‘modern’ families such as trans parents (but also parents through, for example, surrogacy and adoption, who are registered as ‘parents’ – not ‘mother’ or ‘father’) to be treated as second-class families.
Competing interests: law, identity and the child’s welfare
Trans people who legally change their sex/gender under the Gender Recognition Act 2004 (GRA 2004) are met with two seemingly contradicting sections. Section 9 says trans people are their self-identified (called “acquired” in legislation) sex/gender “for all purposes”, subject to some exceptions. One exception (clarified in the McConnell judgments) is Section 12, which says legally transitioning “does not affect the status of the person as the father or mother of a child”. This section was held to be both prospective and retrospective, meaning it does not matter when someone obtains legal recognition of their self-identified sex/gender: they will always be ascribed the gendered parental status corresponding to the sex they were assigned at birth (female/mother; male/father). This epitomises the law tethering itself to ‘traditional’ ideals of sex/gender and family life by prioritising the sex assigned at birth and disregarding social dimensions.
The persistence of cisnormative ideals means trans parents may have to choose between starting a family knowing they will be mischaracterised by law, or forego their desire to become a parent. Importantly, non-binary people are not recognised under the GRA 2004 (although, the UK Supreme Court recently granted permission to appeal in a case which concerns non-binary identities and “X” sex designations on passports). Trans people can thus only transition within cisnormative boundaries (from woman to man and vice versa).
While the Court of Appeal recognised Mr. McConnell as male, it attempted to reconfigure (legal) understandings of ‘mother’ as gender-neutral almost simply by saying so; it did not substantially engage with social understandings of ‘mother’. Instead, the Court promoted the sanctity of the ‘traditional’ family by stretching its contours to assimilate Mr. McConnell as a male ‘mother’. As my primary research found (below), most respondents disagreed that men could be ‘mothers’. Hence, it is unlikely that society will see Mr. McConnell as a “male mother”; rather, they will likely code him as a woman in recognition of childbirth, simultaneously undermining his Gender Recognition Certificate stating he is legally male. This could contribute to a child’s sense of being ‘othered’, especially if the person they know as their father is registered as their ‘mother’ (or their mother as their ‘father’: see in R (JK) v The Registrar General for England and Wales [2015] EWHC 990 (Admin)).
While the meaning/function of the birth certificate is contested, it is surely in the child’s best interests for the birth certificate to accurately document their family structure’s reality. In the McConnell judgments, it was held that it is important a child can access their (biogenetic) ‘origins’ – a strong factor in determining that he should be registered as a ‘mother’. While the child’s ‘right’ to know their ‘origins’ is outside the scope of this post, it is sufficient to say that if a trans man gave birth using his own eggs, allowing him to register as a ‘father’ does not infringe on the child accessing their biogenetic lineage – it just allows a trans parent to be accurately registered on the birth certificate.
A survey I conducted supported these claims. Key findings include:
- a majority of respondents thought men could not be mothers, highlighting the law’s construction of “male mothers” as something to obstruct trans men from receiving full legal/social validation;
- many respondents emphasised that trans parents should be able to self-identify their parental status; and
- people think about sex/gender and parenthood in multifaceted and ambiguous ways, so law (and society/policy) should take account of such divergent views.
The future
One possible way to account for these divergent views is to reform the birth registration system to make clearer what we expect from birth registration generally. My article does not propose how to reform, but highlights that reform is needed. I am, however, considering reform as part of my doctoral research.
Law does not exist in a vacuum. By remaining tethered to ‘traditional’ ideals of family life, the law is showing its reluctance – or inability – to cater for ‘modern’ families. This is perhaps best captured by the UK Supreme Court’s recent refusal to grant permission to appeal in the McConnell case. However, all eyes are now on a pending case before the European Court of Human Rights – OH and GH v Germany – which has largely similar facts to McConnell. Maybe there is light at the end of the tunnel for trans parents yet.