Trans-Male Who Gave Birth to a Child is Father or Mother Amaresh Patel LANDMARK JUDGMENT Fri, Sep 27, 2019, at ,11:54 AM Title of the Case – Trans-Male Who Gave Birth to a Child is Father or Mother Name of the case – The Queen vs. The Registrar General for England & Wales, WC2A 2LL Date of Judgment – 26th Sept 2019 Judges: The Rt. Hon. Sir Andrew McFarlane, President of the Family Division Subject and sections involved – Status of Person as the Father or Mother of a Child, under section of GRA 2004. Issue: Whether a Trans-man who gives birth of a child is mother? Fact of the Case: A decade ago, the Claimant [TT], who had been registered as female at birth and who was then aged 22 years, transitioned to live in the male gender. He began medical transition with testosterone therapy in 2013, and in 2014, he underwent a double mastectomy. His passport and NHS records were amended to show his gender as male. TT states, and I readily accept, that his family came to accept the transition some years ago and that in the work environment his colleagues have never known him to be anything other than a male. In September 2016 TT, under medical guidance, suspended testosterone treatment and later commenced fertility treatment in England and Wales at a clinic [‘the clinic’] which is registered for the provision of such treatment under the Human Fertilisation and Embryology Act 1990 [‘HFEA 1990’]. The aim of the treatment was to achieve the fertilisation of one or more of TT’s eggs in his womb. Records from the clinic show that TT’s gender was registered as ‘M’ for male. In order to maximise the prospects of success, testosterone therapy was suspended. In January 2017 TT issued an application under the Gender Recognition Act 2004 [‘GRA 2004’] in order to obtain a ‘Gender Recognition Certificate’ confirming that he was male. Determination of an application for a Gender Recognition certificate [‘GR certificate’] is made by a panel constituted under the GRA 2004. The panel evaluates applications on paper and without a hearing. In addition to the application form and historical medical reports confirming diagnosis of gender dysphoria, the Claimant submitted a pro-forma declaration stating that he ‘intends to continue to live in the acquired gender until death’. The GRA panel granted TT’s application. A GR certificate confirming his gender as male was issued on 11 April 2017. The legal effect of a GR certificate is that the person to whom the certificate relates ‘becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man …)’ [GRA 2004, s 9(1)]. On 21 April 2017, TT underwent intrauterine insemination (IUI) fertility treatment at the clinic during which donor sperm was placed inside his uterus. The process was successful and conception occurred with the result that TT, a registered male, became pregnant. TT carried the pregnancy to full-term and, in January 2018, he gave birth to a son, YY. The issue in these proceedings relates to the registration of YY’s birth. Upon communication with the Registry Office, TT was informed that he would have to be registered as the child’s ‘mother’, although the registration could be in his current (male) name. TT wishes to be registered as ‘father’ or, if not ‘father’, then ‘parent’ and thus on 3 April 2018 he brought a claim in Judicial Review to quash the decision of the Registrar General [RG]. In addition if, contrary to his main contention, the court holds that as a matter of domestic law TT must be registered as YY’s ‘mother’, TT contends that that outcome represents a breach of his and YY’s rights under the European Convention on Human Rights [‘ECHR’] to the extent that the court should issue a Declaration of Incompatibility under Human Rights Act 1998 [‘HRA 1998’], s 4. Ratio of the case The court of Family Division of Wales and England hold that being a ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender specific, although until recent decades it invariably was so. 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 Definition of Mother The court defines the term ‘mother’ under the law of England and Wales. Down the centuries, no court has previously been required to determine the definition of ‘mother’ under English common law and, it seems, that there have been few comparable decisions made in other courts elsewhere in the Western World. Hitherto, a person who has given birth to a child has always been regarded as that child’s mother. The issue arises in modern times where an individual, who was born female, undergoes gender transition and becomes legally recognised as male before going on to conceive, carry and give birth to a child, with the result that the parent who has given birth is legally a man rather than a woman. It is that 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’. Thus, the court states that 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’. Subscribe Into Legal World Magazine for All Important Judgment of the Month with Law Exams Update and much more.