A transgender man who has given birth but does not want to be described as ‘mother’ on a birth certificate today began the second stage of a legal battle and says he should have won first time around.
Freddy McConnell, a multimedia journalist who works for The Guardian, wants to be registered as father or parent because being referred to as a mother was psychologically scarring.
A judge ruled against him, after a High Court trial in London, but he has launched an appeal. Three appeal judges are now considering the case.
Freddy McConnell, a multimedia journalist who works for The Guardian, wants to be registered as father or parent because being referred to as a mother was psychologically scarring
Sir Andrew McFarlane, the president of the Family Division of the High Court and most senior family court judge in England and Wales, ruled against Mr McConnell in September.
He 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’.
Lord Burnett, the Lord Chief Justice and most senior judge in England and Wales, Lady Justice King and Lord Justice Singh began analysing arguments at a Court of Appeal hearing today.
The hearing is due to finish tomorrow.
A barrister leading Mr McConnell’s legal team told the three judges there were ‘clear reasons’ why her client should have won the High Court fight.
‘Notwithstanding the complexity of the arguments and the issues engaged, there were clear reasons why the claim ought to have succeeded and why (Mr McConnell) ought to have been declared the father or parent of (the child), not the mother,’ Hannah Markham QC stated in a written argument.
A barrister leading Mr McConnell’s legal team told the three judges there were ‘clear reasons’ why her client should have won the High Court fight. He is pictured in a publicity photo for a film
‘It is submitted that the learned judge fell into error in determining the term ‘mother’ not to be a gendered term.’
She said Sir Andrew had failed to consider whether the current birth registration system was ‘fit for purpose’.
‘The learned judge was wrong to focus on giving birth as the determining issue when deciding parental role described in an administrative document,’ she added.
‘In identifying that the issue in this case raised important matters of public interest and that there was a pressing need for the government to challenge square on the status of a trans-male person who has become pregnant and given birth to a child, the learned judge ought to have declared where the current law fails to recognise those rights.’
She said Sir Andrew should have considered whether those ‘national failings’ were breaches of Mr McConnell’s human right to respect for private and family life.
Judges have heard how Mr McConnell is a single parent who was born a woman but now lives as a man following surgery.
Mr McConnell had been biologically able to get pregnant and give birth but had legally become a man when the child was born.
Mr McConnell had been biologically able to get pregnant and give birth but had legally become 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.
Mr McConnell had taken legal action against the General Register Office, which administers the registration of births and deaths in England and Wales.
Solicitor Scott Halliday, a family litigation specialist based at law firm Irwin Mitchell, urged the Appeal Court judges to be on the ‘right side of history’.
McConnell outside the High Court at the previous hearing
‘The High Court decision was hugely disappointing, but the Court of Appeal offers an opportunity to accurately acknowledge the relationship between Freddy and his child, and thus for the law to be on the right side of history when it comes to transgender rights,’ he said.
‘The current argument used to resist change in the law is seemingly to allow transgender people to assume rights in their acquired legal gender only in some circumstances. It is a piecemeal approach and extremely problematic.’
‘The transgender community will be looking at this case as a measure in how the law understands their needs and fundamental rights; a cherry-picking policy simply cannot be endorsed going forward, and the courts should recognise this when they hear the case.’
He added: ‘At the crux of the story are a man and his child wishing to have the family life that reflects their personal reality – to not have this basic right is a tragedy and one we must rectify in law.’
Equality campaigners were disappointed by Sir Andrew’s ruling.
Laura Russell, director of campaigns, policy and research, at campaign organisation Stonewall, had said in September: ‘We believe this ruling is a missed opportunity to send a positive message and recognise all parents, including LGBT parents, for who they are.’
She said legislation ‘desperately’ needed updating.