The days when gender was fixed to either male or female are long gone. There is an increasing recognition that both gender and sexuality can be fluid.The formalities for registering the birth of a child have not yet been updated to reflect the current social and psychological reality of the diverse ways that families now exist. A child born in England and Wales has to be identified as “male” or “female”.
Why is gender recorded?
Historically it seems likely that the reason for this information being recorded on a birth certificate would be to gather statistics. In today’s society with more and more people identifying as non-binary, the concept of restricting gender to male and female is becoming outdated.
Many countries have already adopted laws to recognise non-binary gender identity including Canada and Australia.
ParentsA further issue with birth certificates is how a child’s parents are referred to. Traditionally, the parents were referred to as “Mother and Father”. “Mother” must be listed. There is no legal requirement for the Father to be listed. With a female same sex couple, a second mother can be registered but she must be named as “parent” rather than mother. Same sex male couples have to obtain a Parental Order before they can be named as parents. None of these provisions account for transgender parents.
This issue was highlighted with the case of Freddy McConnell, a transgender man who wished to be named as father on the birth certificate of the child that he had given birth to. His request was refused by the Family Court. The Judge, who is also the most senior family Judge, found that being a “mother” is not necessarily gender specific and that a person’s gender can be different to their status as a parent. However, ultimately the Judge decided that being a mother is the status given to a person who undergoes the physical and biological process of being pregnant, carrying a child and giving birth despite it now being medically possible for someone recognised a male to become pregnant and give birth. The judge did however recognise that the ‘social and psychological reality’ of the father’s relationship with his child did not work alongside the law as it stands in this country. He noted the ‘pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child’.
The judgement was a crushing blow to Mr McConnell as it undermined his transition and he says his human rights have been breached. It is thought that he may appeal.
Just as there is now an argument for a birth certificate to be silent as to the gender of a child (or at least have a third option of non-binary gender), there must also be an argument for a child’s parents to be referred to as such rather than “Mother” and “Father”.
There is clearly a pressing need for change so that the law accurately reflects today’s diverse family set ups.
More informationFor a confidential discussion on any family law problem, make an appointment to see one of our specialist family lawyers at any of our offices in Brentwood, Hornchurch, Upminster or at our meeting rooms at Canary Wharf or Leigh-on-Sea.
Simply call 01708 229444 or click here to find out more about the Family Law Department.
This article was written by Louise Eady, Senior Associate in the Family Law Team at Pinney Talfourd LLP. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2020.