R (MCCONNELL AND YY) V REGISTRAR GENERAL FOR ENGLAND AND WALES (2020)

CASE OVERVIEW

• Neutral Citation Number: [2020] EWCA Civ 55
• Court -Court of Appeal (Civil Division)
• Judges- The RT Hon The Lord Burnett of Maldon, Lord Justice Chief Justice of England and Wales, The RT Hon Lady Justice King and The RT Hon Lord Justice Singh
• Appellants- The Queen [on the application of Alfred McConnel and YY (by his litigation friend Claire Brooks)]
• Respondent- The Registrar General for England and Wales
• Interested Parties- Secretary of State for Health and Social Care, Ministry for Women and Equalities, and Secretary of State for The Home Department
• Intervener- The Aire Centre

CASE FACTS

McConnell, a female at birth, filed this case and preferred to transform as a man when he was 22. He was on testosterone therapy in 2013, and he underwent a double mastectomy the subsequent year. He began his fertility treatment journey in 2016 for fertilization to occur successfully. The Gender Recognition Act (GRA 2004) [1]confirmed McConell as a male on 11th of April 2017, and he had a male gender designation on his passports and NHS records. He gave birth to his son in 2018 after having a successful intrauterine insemination fertility treatment.

The core issue arose when McConnel requested the Registrar to register him as the ‘father’ of his son YY after the birth. It is a matter of regret that the Registrar General refused to register the transgender man as a father, and he wanted him to register as YY’s ‘mother’.

ARGUMENTS PRESENTED

Appellant’s view :

McConnel sought to register his son’s birth at the Registry Office, requesting to be recorded as the father of YY. However, he was registered as the mother, and his male gender was recorded correctly. Applications were issued in the Lower Courts against the Registrar’s decision by McConell and YY. The following is a summary:

• He desired to be registered as the father of YY, not the mother.
• He contended that articles 8 [2]and 14[3] of the conventions are incompatible with domestic legislation when dealing with gender issues.
• McConnel argued that he is entitled as a father under section 55 of The Family Law Act 1986[4], and he has the right to raise parental responsibilities as per The Children Act 1989.

McConnell’s ‘SEAHORSE’ documentary expresses the story of the transman who gave birth to son that was shown in film festivals in 2019.

Respondent’s view :

The application, which was issued by McConnel claiming judicial review and incompatibility with convention, and the application of YY for a declaration on parentage responsibility were considered notable. After assessing all the challenges and concerns in domestic legislation and provisions, the President finalised that there’s no incompatibility between his provisional views and convention rights as per para 273 (about article 8) and para 277 (concerning article 14).

The consolidated findings are outlined below:

• The person who carries the child and gives birth to a child is identified as the ‘mother’.
• Mother is the person who feels the biological process, like pregnancy, conception, and birth.
• Law recognized that being ‘mother’ or ‘father’ is not necessarily gender specific instead but can be an acquired gender of ‘male’ or ‘female’
• Section 12 of the Gender Recognition Act 2004 has both retrospective and prospective.

Sections 9 and 12 are the core elements for this appeal.

Section 9 –

(1)        When a gender recognition certificate is provided to a person, that person’s gender becomes the acquired gender for all intents and purposes

(2)        S.9(1) does not affect any previous documents or purposes that have already been done before the certificate was issued.

(3)        S.9(1) is related to provisions or rules made by this act or any other act or secondary legislation

Section 12 -The acquired gender under this act will not affect the position that the person has as either the mother of the father of the child.

LEGAL ISSUES

1. The correct interpretation of the Gender Recognition Act 2004, s.9 and s.12
2. The incompatibility of the interpretation with the appellants’ rights under articles 8 and 14 of the Convention rights

DETAILED REASONING FOR THE DECISIONS

1. The correct interpretation of the Gender Recognition Act 2004, s.9 and s.12

The judicial task is to ascertain whether section 12 of the act, specifically its retrospective effect or prospective application. The appellant argues that this section only has a retrospective effect, while the respondent asserts that the application of s.12 has both a retrospective effect and a prospective effect. Yet, the argument of the respondent is determined to be the accurate interpretation.

The appellant urged the judges to interpret the law with modern morals, using the ‘always speaking’ rule. Even so, the Court of Appeal refused to apply the significant rule in this case. The reasons the courts highlighted are below:

• The person who gives birth to a child is considered a mother, and the court stressed the biological role of a mother in the process.
• Such an interpretation, wherein equating ‘mother’ with ‘father’, would be in direct opposition to Lord Bingham’s conceptualization.
• It is not arguable that the terms “parent” or “gestational parent” are suitable replacements for the word ‘mother’.

McConnell presented a contention with the support of Ms Hannah Markham concerning s.12 interpretation that was mentioned in the explanatory notes. Hannah highlighted that if the person belongs to an acquired gender, they have no issues retaining their original gender. Section 12 was to make sure the ‘continuity’ but no more. Despite this argument, Lord Steyn explained that explanatory notes are not capable of making any changes or modifying the true nature of the statute. Also, the lord indicated that parliamentary procedures should be followed instead of explanatory notes. Ultimately, the Registrar General’s decision, consistent with s.12, to register McConnell as the mother of YY, is deemed to be a correct application of law.

2. The incompatibility of the interpretation with the appellants’ rights under articles 8 and 14 of the Convention rights

The court in Corbett v Corbett[5] held that traditional English law outlined that gender was determined at birth and unchangeable, thus a transgender individual could not marry in their acquired gender. The case of Rees v UK [6]in 1986 is a significant case which presented the struggle of transgenders and their rights even though this case was unsuccessful. The decision of Goodwin v UK[7] was a major milestone in the legal recognition of transgenders rights where the court identified that the article 8 and 12 of Christine Goodwin, a transgender woman had been violated. This case had a wider impact on transgender people. As a result, these legal developments led to the enactment of the Gender Recognition Act 2004.

The child of transsexual parents possesses the right to know their birth parents’ identification, which should be accurately mentioned in the birth certificates. In addition, the child has a right to understand the nature of the relationship with the parent.

Alterations to the definition of the word ‘mother’ within the Gender Recognition Act 2004 could potentially disrupt the whole legislative framework, as it is embedded within various statutory provisions. McConnell was informed that the word mother is used 45 times in the Children Act 1989 alone. Section 2(2)(a) highlights the automatic parental responsibility of a mother upon the occasion of childbirth. The unique and dynamic nature of motherhood and her responsibilities cannot be replaced and can only be borne by a biological mother.

Due to Parliament’s precise and clear definition of ‘parent’, the court cannot substitute the term ‘mother’ with ‘parent’ as per Mr. Jeffey’s submission. Parliament has legislated that the person who physically delivers the baby is the legal mother, irrespective of the baby’s genetic origin, surrogacy, or adoption.

According to the German Civil Code[8], the woman who gives birth to a baby is legally determined as the mother. This elaboration is mirrored in both German legislation and the Gender Recognition Act concerning transgender people.

• Section 10 of Transsexuellengesetz (TSG) – after having undergone the transsexual procedures, the applicant (transsexual) should be legally identified by their acquired gender.
• Section 11 of Transsexuellengesetz (TSG) – highlights that the parent–child relationship is not altered when a parent undergoes a legal gender change.

According to the sections above, it is explicitly clear that if a trans person gives birth to a child, the person should be identified as the mother of the child. However, apart from this, the trans person will be recognized in his or her acquired gender. This sections explicitly support this case while making decisions.

Article 14 doesn’t raise any complications in this case. Based on the evidence, concerning different laws and interpretations as elaborated above, it is accurate to conclude that there is a lack of incompatibility with McConnel’s rights under articles 8 and 14 of the Convention.

DECISION OF THE CASE

The court unanimously dismissed the case of McConnell and finalized that McConell is the mother of YY.

 

 

REFERENCES

[1] The Gender Recognition Act, 2004, c.7, UK Public General Acts

[2] European Convention on Human Rights, article 8, Council of Europe Treaty Series (C.E.T.S)

[3] European Convention on Human Rights, article 14, Council of Europe Treaty Series (C.E.T.S)

[4] Family Law Act 1986, c.55

[5] Corbett v Corbett (1970) P.83

[6] Ress v United Kingdom (1986), 9 ECHR 56

[7] Goodwin v United Kingdom (1996) 22 ECHR 123

[8] Burgerliches Gesetzbutch (German Civil Code), sections 10 and 11