In McConnell and YY v the Registrar General for England and Wales the Court of Appeal upheld the High Court's conclusion that legislation requires Alfred McConnell, a trans man who gave birth to a son ('YY') after receiving a gender recognition certificate, to be registered as YY's mother (see BioNews 1017 and 1045).
McConnell had sought to be registered either as YY's 'father' or as his 'parent' ('parent' is reserved for second female parents where the mother is in a same-sex relationship), or as his 'gestational parent' (a term unknown to the law, which the Court dismissed as requiring judicial legislation).
YY's long-form birth certificate will identify the man he knows as his father as his mother and record no-one as his father (McConnell conceived by artificial insemination with donor sperm in a licensed clinic). The Court held that this constituted a significant interference with McConnell's and his son's rights under Article 8 of the European Convention on Human Rights: the right to respect for private and family life. It interfered with McConnell's sense of his own identity as a man, and with his and his child's family life, defining them as mother and son whereas their lived experience would be that of father and son. But the interference is in accordance with law, in pursuit of a legitimate aim and is 'proportionate'; accordingly, it is justified and lawful.
In coming to that conclusion the Court observed that:
The context for the case gives rise to 'difficult and sensitive social, ethical and political questions'. Only Parliament – which, unlike the court, is open to interest groups and has access to expertise – should decide such significant matters as who is a mother and who a father.
Redefinition of 'mother' or 'parent' would necessitate extensive reform of other legislation, for example, the Children Act 1989, which automatically imposes parental responsibility only on the mother of a new-born.
The European Court of Human Rights had not made any decision suggesting the interpretation contended for by McConnell and there was no consensus among the Council of Europe states. Accordingly, the UK Parliament has a margin of appreciation to apply its own judgement as to what legislation to adopt.
The Court's analysis of the legislation seems watertight. Its treatment of the human rights questions is arguable, as questions of human rights usually are: there will nearly always be an element of what is 'felt fair' as to whether an interference with rights Is proportionate. But what seems an ineluctable conclusion is that the law has failed to keep pace with social, scientific, and technological change. Reform is urgently required.
First, it is difficult to accept that the child's best interests (which, according to the UN Convention on the Rights of the Child, must be a primary consideration) are served by a document which says that he had no father and that the person he knows as his father is actually his mother. But McConnell's proposal that he should be registered as YY's 'father' or 'parent' is no improvement, leaving YY as a child without a mother, and with a birth certificate which (like the birth certificates of all donor-conceived children) gives him no clue as to the facts of his origins.
Second, while lawyers may be comfortable with the proposition that the term 'mother' is 'not necessarily gender-specific', to the public at large, to define a man as a 'mother' makes no sense; it is liable to create barriers to understanding and acceptance.
Third, the ownership of words which do, in common usage, denote gender is a primary battleground in the culture wars. The law should so far as possible be framed in neutral language.
In its submissions to the High Court in McConnell, the AIRE centre pointed out the many absurdities to which the present system can lead, including some which might have immediate and serious real-world consequences (such as proving identity when travelling abroad), and the contrasting treatment of adopted people and those born by surrogacy.
Both courts acknowledged that function has superseded gender in the processes of conception and birth. It is time for legislation to recognise this and adopt functional categories identifying gamete providers, gestational parents and legal parents, without referring to them in the unavoidably gendered language of 'fathers' and 'mothers'. In that way, children may be enabled to understand their personal history, the dignity and autonomy of those involved may be protected, and the language at least removed from the arenas of dispute.