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A recent refusal by the Supreme Court to hear a final appeal by Freddy McConnell has shown that clarity is needed on Transgender rights in the UK.
Freddy, 32, was born a woman but has lived as a man for several years. He retained his female reproductive system, and in 2018, with the help of fertility treatment, gave birth to a child.
Mum or Dad?
When registering the baby's birth, the Registrar insisted that he was recorded as the baby's mother, despite the fact that he holds a Gender Recognition Certificate which makes it clear that the law recognises him as a male.
In April 2020, the Court of Appeal upheld the High Court's earlier decision that motherhood is defined as being pregnant and giving birth regardless of whether the person who does so was considered a man or a woman in law. Lord Burnett said that the current UK laws had not "decoupled the concept of mother from gender" and the panel agreed that it was in a child's best interests to know the biological reality of their birth.
In November 2020, the Supreme Court confirmed their refusal to hear the final appeal of the Court of Appeal's judgment. A spokesperson for the court said that Mr McConnell's case did not raise an "arguable point of law" for the court to consider. As a result, Mr McConnell has exhausted his legal options in the UK, but has confirmed that he plans to apply to the European court of human rights to hear his case.
This ruling has come under attack by lawyers as a blow to the rights of trans-parents and their children and has sparked cause for legislative reform. Mr McConnell said the current legal system is a "traditional system that does not account for modern families".
There is no doubt that the UK law, in its current form, does not deal with the issue in one single Act of Parliament, but rather a mishmash of different laws. Stonewall, the leading lesbian, gay, bisexual, and transgender rights charity supported Mr McConnell. Nancy Kelly, Stonewall's Chief Executive said the ruling was "deeply disappointing" and that "all parents, including LGBT parents, deserve to be recognised for who they are and it's incredibly frustrating that the supreme court has missed an opportunity to progress equality".
A representative for the child has told the court that father means male parent and that is exactly what Freddy is, "anything else gives the impression of something secretive or shameful".
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This article was written by Sue Nash, Senior Associate in our Family Law Team. 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 December 2020.