This article was first published in De Rebus in 2020 (April) DR 19. Tshepo Mashile LLB (University of Limpopo) is a legal practitioner at Mkhonto and Ngwenya Inc in Pretoria.
In the South African television (TV) world, a reality show exists and the primary objective of the TV show is to resolve issues of paternity by using DNA testing. It is a ‘docu-reality’ series where the presenter journeys with individuals on their path to find their biological fathers. The presenter then assists the individual in dealing with the joy and pain that comes with unravelling their genetic background. The show is called uTatakho, an isiXhosa word which loosely translates to ‘your father’. This article is about a judgment that was handed down on 25 September 2019 by the President of the Family Division of the High Court of Justice, Sir Andrew McFarlance, in the division of the Royal Courts of Justice, in London, United Kingdom. In TT and YY  EWHC 2384 (Fam), the court was required to define the term ‘mother’ under the laws of England and Wales. 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. The question that confronted the court was: Is that man the ‘mother’ or the ‘father’ of his child?
The factual context
A decade ago, 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 the medical transition with testosterone therapy in 2013, and in 2014, he underwent a double mastectomy. His passport and National Health Services records were amended to show his gender as male. TT stated 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 male.
In September 2016 TT, under medical guidance, suspended testosterone treatment and later commenced fertility treatment in England and Wales at a clinic, which is registered for the provision of such treatment under the relevant laws. 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) in order to obtain a ‘gender recognition certificate’ confirming that he was male. Determination of an application for a gender recognition certificate was made by a panel constituted under the GRA. The panel evaluated the applications on paper and without a hearing. In addition to the application form and historical medical reports confirming diagnosis of gender dysphoria, TT submitted a pro-forma declaration stating that he ‘intends to continue to live in the acquired gender until death’. The panel granted TT’s application. A gender recognition certificate confirming his gender as male was issued on 11 April 2017. The legal effect of a gender recognition certificate is that the person to whom the certificate relates ‘becomes for all purposes the acquired gender’.
On 21 April 2017, TT underwent intrauterine insemination 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, TT gave birth to a son, YY.
The issue in the proceedings related to the registration of YY’s birth. On 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 wished 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. In addition, if contrary to his main contention, the court held that as a matter of domestic law, TT must be registered as YY’s ‘mother’, that outcome would represent a breach of his and YY’s rights under the European Convention on Human Rights to the extent that the court should issue a Declaration of Incompatibility under s 4 of the Human Rights Act 1998 (HRA). In addition to the judicial review proceedings and declaration of incompatibility application, on 14 August 2018 an application for a Declaration of Parentage was issued on behalf of YY in terms of s 55A of the Family Law Act 1986. That application was heard alongside TT’s applications in the proceedings. This article only focuses on TT’s case.
Submissions made on the law
TT’s primary submission was that if ss 9 and 12 of the GRA are correctly interpreted, the Registrar General is obliged to register him as ‘father’ on YY’s birth certificate.
Sections 9 and 12 make provision as follows:
- Where a full gender recognition certificate is issued to a person, the person’s gender 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 and, if it is the female gender, the person’s sex becomes that of a woman).
- Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
- Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.’
The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child’.
TT submitted that s 9(1) of the GRA was unequivocal in stipulating that following the issue of a gender recognition certificate the relevant individual is to be regarded as having the acquired gender ‘for all purposes’ and that, therefore, for the purpose of determining his status as parent to his child, TT is a male parent and, therefore, YY’s ‘father’. It was further submitted that, as s 9(2) of the GRA is in similarly unequivocal terms in providing that s 9(1) ‘does not affect things done, or events occurring, before the certificate is issued’, it can safely be assumed that the recognition of the new gender will affect all things occurring after the issue of the gender recognition certificate. It was submitted to the court that s 9(2) is entirely prospective in its focus and in no manner retrospective.
Regulation 7(2) of the Registration of Births and Deaths Regulations 1987 requires ‘the particulars to be recorded in respect of the parents of a child shall be those appropriate as at the date of its birth’. In this case it provided that a child’s birth occurs after the issue of a gender recognition certificate, s 12 of the GRA does not restrict or modify the effect of s 9 as, by the time of birth, the parent will have become the acquired gender and, by reason of s 9, their status as ‘mother’ or ‘father’ will be determined by reference to that acquired gender. TT’s case, in this regard, was therefore based on the assumption that, for all purposes, the gender of a parent determines whether that parent is a ‘mother’ or a ‘father’, without exception, so that the terms ‘male parent’ and ‘father’ are entirely synonymous.
In the secondary submission, TT held that if he must, under English law be registered as YY’s ‘mother’, that result is a clear breach of his private and family life rights under art 8 of the European Convention on Human Rights. In those circumstances, TT would be regarded, under the law, as living in ‘an intermediate zone’, being regarded as male for all purposes save for parenthood when, as a ‘mother’, he would be regarded as female. That outcome would place TT, and those like him in similar circumstances, in an impossible dilemma of having to choose between either having a family or remaining childless but recognised fully in law and for all purposes in their acquired gender.
In the context of art 8 of the European Convention on Human Rights, TT’s case was that the government’s interpretation was unnecessary, disproportionate and failed to strike a fair balance between the competing interests of the individuals concerned and the wider community. Insofar as it is argued that the European Court of Human Rights would afford the UK a ‘margin of appreciation’ on this issue, any such margin would be construed narrowly in the light of the principle, which is said to be firmly established across Europe, that transgender people should be afforded full legal recognition in all areas of life.
TT’s essential case was that since the state had permitted him to undergo hormone treatment, live his life as a man for a significant part of his adult life and then, after he had gone through the required procedure and obtained a Gender Recognition Certificate, permitted him to undergo artificial insemination, which led to the birth of YY, the state should reasonably be expected to accept the consequences and take all the measures needed to enable TT to live a normal life, free from discrimination in any circumstances, under his new identity and with respect for his right to private and family life.
The Registrar General invited the court to dismiss the claim for the following reasons:
- The [Registrar General’s] duty in law is to register the claimant [TT] as YY’s mother. Specifically, the [Registrar General’s] does not have a power to register the claimant as YY’s father or as his parent. Pursuant to section 12 of the GRA 2004, a GRC does not affect the status of a trans-person as a mother or father to a child, even if the child is born after the issue of a GRC.
- As to the claim under the HRA 1998, the case raises complex issues of public policy about how best to protect the rights and interests of trans-people and their families in legislation. It is an area in which the European Court of Human Rights recognises that the United Kingdom should have a wide margin of appreciation, and one in which the decisions of the legislature should be accorded considerable respect.
- The [Registrar General] and the secretaries of state accept (for the purpose of the hearing of this claim only) that the legislative scheme interferes with the rights of the claimant and YY under Article 8(1) of the [European Convention on Human Rights] and therefore requires justification under Article 8(2).
- The interference is justified by the need to (i) have an administratively coherent and certain scheme for the registration of births, and (ii) the rights and interests of others, notably but not exclusively, the right of a child to know – and have properly recognised – the identity of the person who carried and gave birth to him or her. This is an important and consistent principle that applies throughout birth registration legislation, including in relation to surrogacy, adoption and in relation to the children born by donor conception. The interference is proportionate, particularly having regard to the respect to be given to the legislature in this context, the measures introduced by legislation to protect against discrimination and harassment and maintain confidentiality, the absence of workable alternatives and given that there is no decision of the [European Court of Human Rights] requiring a trans-parent to be recorded as the parent of his or her child in his or her acquired gender’ (my italics).
Findings and conclusion
The court found that there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, until recent decades, has always been associated with being female, it 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. While that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.
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’. The status of being a ‘mother’ arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth. 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 acquired the gender of male, and for a ‘father’ to have an acquired the gender of female. Section 12 of the GRA is both retrospective and prospective. The status of a person as the father or mother of a child is not affected by the acquisition of gender under the Act, even where the relevant birth has taken place after the issue of a gender recognition certificate.