Gender and parents

Historically, the differentiation between mother/female and father/male has had limited practical effect. Due to the biological makeup of the sexes and mechanics of natural conception through to childbirth, “mother” was invariably female and “father” was invariably male. After all, determining a person’s sex at birth often just involves a visual examination of the reproductive organs which determined a person’s role in childbirth. Society has become accustomed to a mother being of the female sex and a father being of the male sex to the extent that mother/female of the family and father/male of the family are almost interchangeable.

However, is this correct? With advancements in science, medicine and societal norms and changes in the law, a person’s gender is not fixed for life just by having particular reproductive organs. Somebody with female reproductive organs and the ability to give birth can be of the male sex.

That is something the court had to grapple with in a recent case involving Mr Connell. He was registered as female at birth but underwent gender transition to male. By 11 April 2017 his passport and NHS records had been amended to show his gender as male and he has obtained a Gender Recognition Certificate which confirmed that he had become his acquired male gender for all purposes. In addition to altering his gender in a legal sense, he underwent certain medical procedures as part of his transition but he was still able to carry and give birth to a child.

On 27 April 2017 (after he had acquired his Gender Recognition Certificate and so was to be treated as male for all purposes) Mr Connell underwent a fertility procedure and successfully became pregnant, giving birth to his son in January 2018. When Mr Connell came to register the birth, he was told that he had to be registered as “mother”.

Mr Connell sought a judicial review of this decision as he wanted to be registered, ideally as “father” but if that was not possible, then as “parent”.

What was the decision?

The decision of the High Court (which was affirmed by the Court of Appeal) was that Mr Connell must be registered as “mother”.

In coming to this conclusion, the court determined that the status of “mother” is derived from the biological role that person has undertaken in the process of conception, pregnancy and child birth. A mother is the person who has carried a child through pregnancy and given birth to the child.

The court confirmed that the terms “mother” and “father” are not necessarily gender specific but rather, they relate to the biological role that person played so it is possible for there to be a female father and a male mother.

Where does this leave Mr Connell?

At present, Mr Connell will still be registered as “mother” on his child’s birth certificate. If he disagrees with the Court of Appeal, the next step would be to seek permission to appeal to the Supreme Court. At the time of this publication, it is not clear whether Mr Connell will take this step.

What about Human Rights?

Mr Connell had asked the court to make a Declaration of Incompatibility as he believed that the law as it stands is contrary to his human rights, particularly his right to a private and family right. The court accepted that the law as it stands there could be an infringement on his human right by not allowing him to be registered as “father” but believed that the infringement could be justified as there is legitimate aims to the interference:

• a child has the right to know who gave birth to them; and
• the law provides a clear and cohesive birth registration system.

Accordingly the court declined to make a Declaration of Incompatibility.

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