R (McConnell & Anor) v Registrar General for England and Wales

[2020] EWCA Civ 559, [2020] 2 All ER 813, Lord Burnett CJ, Singh and King LJJ

Case

The effect of a certificate issued under the Gender Recognition Act 2004 is (s9) that the recipient “becomes for all purposes the acquired gender”. The question which arose for the Court of Appeal in the McConnell case was whether this recognition entitled the appellant, who became pregnant and gave birth to a child after having acquired male gender under the 2004 Act, to be listed on the child’s birth certificate as its father.

Section 12 of the 2004 Act provided that “The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of the child”. The Registry Office insisted that the appellant be registered as the child’s “mother”, albeit under his (male) name. The appellant’s application for judicial review of that decision failed, as did his appeal.

The appellant’s main argument was that he was entitled to be registered as the child’s ‘father’, ‘parent’ or ‘gestational parent’ under domestic law, alternatively that he was entitled to a declaration of incompatibility under s4 of the Human Rights Act 1998 on the ground that the domestic regime was incompatible with his and/or the child’s rights under Articles 8 and 14 ECHR. (Similar arguments were made on the child’s behalf.) As to the first of these arguments, the Court of Appeal ruled that s12 of the 1998 Act had prospective as well as retrospective effect.

Nor did the Court accept that this position was incompatible with Articles 8 and 14; the acknowledged interference with the appellant’s Article 8 rights was justified by the interests of any children born to a transgender person, and by the need to maintain a clear and coherent scheme of registration of births. The Court made reference to the relative institutional competence of Parliament over that of the courts in this smatter and to the fact that Parliament had taken into account the best interests of children as a primary consideration. Having satisfied itself as to the proportionality of the interference, the Court did not accept that any separate issue arose under Article 14.