A trans man who gave birth but does not want to be described as his child’s “mother” on a birth certificate has lost his Court of Appeal fight.
Journalist Freddy McConnell had wanted to be registered as “father” or “parent”, claiming that forcing him to register as the child’s “mother” breached his human right to respect for private and family life.
After the ruling, he tweeted that he found the decision “disappointing” but indicated he would take the matter to the Supreme Court, adding: “Trans parents will get legal recognition.”
On Wednesday, the appeal judges said the issue McConnell had raised involved complicated “interlinked” legislation and any reform of the law is a matter for parliament.
They said in a written ruling: “The court necessarily operates on the basis of relatively limited evidence, which is adduced by the parties in the context of particular litigation.
“In contrast, parliament has the means and opportunities to obtain wider information from much wider sources.”
Appeal judges said the government and MPs could be lobbied by anyone with an interest, and legislators could acquire information from the widest possible range of opinions.
“We have no idea, for example, whether all trans men object to the use of the word ‘mother’ to refer to them when they have given birth to a child,” they said.
“Moreover, we do not have evidence before this court as to how other members of society would feel if they were no longer to be referred to on their child’s birth certificate as a mother or a father but simply as ‘Parent 1’ and ‘Parent 2’.”
They added: “In our view, this illustrates how inapt the subject matter is for determination by the courts as compared with parliament.
“If there is to be reform of the complicated, interlinked legislation in this context, it must be for parliament and not for this court.”
Sir Andrew McFarlane, the president of the Family Division of the High Court and most senior family court judge in England and Wales, had at an earlier hearing concluded that people who had given birth were legally mothers, regardless of their gender, and said there was a “material difference between a person’s gender and their status as a parent”.
Judges have heard how McConnell is a single parent who was assigned female at birth but has had surgery and lives as a man.
He was biologically able to get pregnant and give birth but legally became a man when the child was born.
He wanted to be registered as “father” or “parent”, but a registrar told him that the law required people who give birth to be registered as mothers.
McConnell took legal action against the General Register Office, which administers the registration of births and deaths in England and Wales.
Michael Wells-Greco, of the firm Charles Russell Speechlys, said after the ruling by appeal judges: “Freddy McConnell’s plight demonstrates just how important this recognition is, for him, his family, and his child.
“Maintaining the label of ‘mother’ may in the future force the child to disclose his or her procreational history, which should be a private matter.
“Some will say a birth certificate, ‘it’s just a piece of paper’, but that undermines its enormous significance.”
He added: “Beyond the law, society says he is the child’s father, and it’s time for UK law to recognise this for all purposes of law.”
McConnell’s lawyer Karen Holden and campaign organisation Stonewall, made similar calls after Sir Andrew’s ruling last year.
Laura Russell, Stonewall’s director of campaigns, policy and research, had said: “We believe [Sir Andrew’s] ruling is a missed opportunity to send a positive message and recognise all parents, including LGBT parents, for who they are.
“This legislation desperately needs to be updated to ensure trans people are recognised for who they are in all areas of their lives.”
The appeal judges said the “legislative scheme of the Gender Recognition Act” required McConnell to be registered as “mother”, rather than “father”, “parent” or “gestational parent”.
They also said that the 1989 Children Act gives a mother, and no one else – including a father – automatic parental responsibility for a child from birth.