Lucy Williamson discusses how a recent court case has divided public opinion on how we honour transgender rights in this country
Last week, Freddy McConnell, a transgender man, lost his legal battle at The Court of Appeal to be registered as “father” on his son’s birth certificate as opposed to “mother”. Freddy argued that the General Registers Office’s refusal to make the change was a breach of his human right to respect for private and family life. This story has divided audiences; raising complex legal and biological questions about what it means to be a mother.
Freddy, the 34-year old freelance journalist from Kent, is legally a male. He had suspended hormone treatment in order to become pregnant, giving birth in 2018. After a highly publicised legal battle, The Court ruled in favour for the right of the child to know the biological reality of its birth over the parents’ right to be recognised in accordance with their gender identity. The three-judge panel argued that the law doesn’t simply ‘de-couple’ the concept of ‘mother’ from gender. The mother is the individual who physically gives birth, regardless of their gender identity.
Speaking on Twitter after the ruling was released (electronically, given the current Covid-19 restrictions), Freddy tweeted that he thought it was a “conservative decision’ and he would be applying to the Supreme Court.
Reaction to this case online has been divided. Ultimately, it raises some difficult questions. Namely, how do we define “mother” and “father”? Is it gender-specific? Is it a legal, biological or psychological state? If we are to maintain a clear and intuitive process of registering births, perhaps the Judge made a good call; all those that give birth are “mothers”. In the case of surrogacy in the UK, the birthing mother is listed on the birth certificate, even if it wasn’t her eggs fertilised. Furthermore, the child has a right to know the biological reality of their birth. On social media, many agreed with the decision saying ‘common sense prevailed’.
However, the ruling assumes the rights of the child vs parent are in conflict. As Freddy points out, ‘there is no reason a trans man would want to hide their children’s origins from them’.
At present, people who give birth in the UK are always registered as the child’s mother. However, having gained a Gender Recognition Certificate, in all other aspects of his life Freddy is recognised as male. So why, when he is trying to exercise this right in practice, are we denying it? Should we be cherry-picking when we are going to honour gender identities? Whilst, on the surface, a term on a piece of paper may seem insignificant, it is an important affirmation of identity. We spoke to Sam (anonymised, a trans man from Australia) who said “It is frustrating for trans people to be invalidated in this way”.
Perhaps we must be more flexible; the law can’t be convenient only for heterosexual, cisgender parents. As Juno Dawson, British Author and Transgender Woman and activist tweeted “It’s 2020. Mothers, Fathers and families come in all different shapes and sizes”.
It’s 2020. Mothers, Fathers and families come in all different shapes and sizes”.
Freddy is by no means alone in his experience. To inform decision making, the UK should be collecting statistics regarding the number of trans men who give birth in the UK. Australia is the only known country to do so; where 205 men were noted to have given birth between 2014 and 2018. Similarly, it is not just trans men who give birth; non-binary or genderqueer people may do so. Perhaps the concept of “motherhood’ is not as black and white as we might want or expect it to be.
Indeed, in the case of adoption, there is no field for “mother” or “father” it is simply ‘Adoptive Parent 1” and/or “Adoptive Parent 2”. Similarly, in the case of surrogacy, the intended parents can apply for a Parental Order to change birth certificate and become legal guardians. Why are we allowing flexibility here, but not as it applies to the trans experience?
Using the preferred pronouns on birth certificates also has practical implications. In an international study by the The Trans Pregnancy Project, examining the experiences of trans and non-binary people with childbirth, one participant notes, “How should I demonstrate or prove or verify that he’s my son with this birth certificate, because nobody would believe me”. Equally, if we only see pregnancy as female-specific this may affect how supported and understood by healthcare professionals the transgender community feel or even how accessible social and healthcare services are to them.
It is possible in the Netherlands for trans men to be registered as “father” and in Sweden and some Canadian provinces as simply “parent’ – perhaps the UK needs to keep pace.
Ultimately, the sensationalist headlines that surround these issues often overly focus on who is right and who is wrong. We too easily lose our understanding of the personal stories behind them. While we can debate the issue, at the heart of this story is a man and his child who just want the law to recognise their personal reality. This comes with its own challenges; in our interview with Sam pointing out that “The experience of being pregnant and trans for most is quite confusing and emotional, as trans people experience gender dysphoria.” This feeling was indeed the case for Freddy McConnell, having documented the gender dysphoria he experienced during pregnancy in his BBC Series: Seahorse.
The way in which The Court interpreted the law in this case is unsurprising; it is simply upholding our current legal definitions and acts of parliament in the UK. But families with trans parents exist and are here to stay. Freddy’s persistence has cast a much needed spotlight on the issue. This can only be helpful in progressing our understanding of the trans experience with pregnancy and child birth. We must put this understanding first when thinking about how to tackle these complex and compounded issues. With Brexit and the pandemic dominating the political agenda, family law reform might take a back seat. Nevertheless, with other liberal countries leading the way, it is hoped it’s only a matter of time before we follow suit.