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Today the President of the Family Division handed down judgment in R (on the app of TT) v Registrar General for England & Wales & others [2019] EWHC 2384 (Fam), a case that has been widely reported in the news in anonymised form and has involved separate and contested hearings about that anonymisation. The issue at the centre of the case is easy to state but challenging to answer: where a person, who was born female, but who has subsequently undergone gender transition and acquired full legal recognition as male, becomes pregnant and gives birth to a child, is that person to be registered as their child’s ‘mother’ or ‘father’? TT, the child’s birth parent, argued that, as a matter of English law, the Registrar’s decision that he should be registered as the child’s mother on YY’s birth certificate was wrong and that the Claimant, being a male parent, must be his child’s ‘father’. The claim was resisted by the Registrar and the Government. The child, who was separately represented, supported TT’s submissions. The AIRE Centre, a well-established charity focussed upon promoting understanding of European rights, was granted permission to intervene in writing and make oral submissions at the 3 day substantive hearing which occurred earlier this year. In the judgment issued today, the President concluded, at para.279: “… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.” The judgment is important for a number of reasons: first, the judgment establishes, for the first time, a definition of the term ‘mother’ under the English Common Law. Consideration is then given to whether that definition is altered by any of the relevant Acts of Parliament, namely the Human Fertilisation and Embryology Acts 1990 and 2008 and the Gender Recognition Act 2004. Whilst there are a number of difficulties with some of those provisions, the answer is no. Second, the judgment identifies (as was highlighted in the AIRE Centre’s submissions) significant difficulties in the domestic regime. However, those matters did not, in the end, mean that the outcome (that the Claimant should be registered as TT’s mother) breached his and his child’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights to such an extent that a declaration of incompatibility should be made. Finally, the judgment recognises that the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. Whilst as a matter of common law, mother is not a gender specific term, until recent times it has always been so and I would suggest that the concept of the ‘male mother’ is one which may meet with some resistance or even derision in some quarters. As the judgment sets out, there is “a pressing need” for the Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child. Finally, I expect that, as a result of developments in the ECtHR over recent years, to the effect that it would be a breach of Article 8 to require gender recognition in the acquired gender to be made conditional upon sterilisation (Nicot etc), the question of labelling the status of a trans-male who has given birth to a child is one which will need addressing in many countries over the next few years. Samantha Broadfoot QC acted for the AIRE Centre, leading Andrew Powell, instructed by Pennington Manches Cooper LLP.
