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Birth registration for transgender parents

High Court judgement

23 September 2019
Birth registration for transgender parents

The President of the Family Division has published a judgment concluding that a transgender man who gave birth to his child in 2018 must be registered in law as the child’s mother. Having received his gender recognition certificate in 2017, the claimant subsequently gave birth and brought proceedings against the Registrar General for England and Wales, arguing that their decision that he be registered as his child’s mother on their birth certificate was wrong, and that he should be registered as ‘father’ or ‘parent’.

The child was separately represented, supporting the claimant’s submissions, with the representative arguing that ‘it is important […] that his birth certificate reflects the reality of his life. The person who gave birth to him was and is male. “Father” means “male parent” […] The birth certificate could reflect this reality by either listing [him] as “father” or “parent”. Anything else gives the impression of something secretive or shameful.’

The President’s judgment acknowledged the risks of future discrimination towards the claimant and child if needing to produce or refer to the birth certificate, noting a degree of interference with their Article 8 rights could occur. However, he argued that the impact would be ‘substantially outweighed by the interests of third parties and society at large in […] a coherent registration scheme which reliably and consistently records the person who gives birth on every occasion as “mother”’.

The judgment also establishes a definition of the term ‘mother’ under English Common Law for the first time, explicitly positioning this outside the gender binary:

‘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”.’ 

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