Court of Appeal: Lord Burnett CJ, Singh and King LJJ, [2020] EWCA Civ 559, [2020] 2 All ER 813, 29 April 2020 

The Court of Appeal rejected the claim that sex as recorded in a gender recognition certificate determines a person’s status as mother or father of a child. The claimant, who was registered as female at birth but subsequently acquired a gender recognition certificate, wished to be recorded as  the father, “parent” or “gestational parent” of the child to whom he had given birth.The Registry Office insisted that the claimant be registered as the child’s “mother”, albeit under his (male) name. His application for judicial review of the refusal to grant a birth certificate in such terms failed and the Court of Appeal rejected his appeal.

The effect of a certificate issued under the Gender Recognition Act 2004 is (s9) that the recipient “becomes for all purposes the acquired gender”. Section 12 of the 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 question which arose for the Court of Appeal was whether this recognition entitled the claimant, 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. 

The claimant’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 such that it did not permit the claimant to be recorded as his child’s father. The Court did not 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 matter 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.

 

First claimant: Hannah Markham QC and Miriam Carrion Benitez, instructed by Laytons LLP
Second claimant: Michael Mylonas QC, Susanna Rickard and Marisa Allman, instructed by Cambridge Family Law Practice

Defendant and Interested Parties: Mr Ben Jaffey QC and Sarah Hannett, instructed by the Government Legal Department) for the Respondent and Interested Parties
Intervener: Samantha Broadfoot QC and Andrew Powell, instructed by Pennington Manches Cooper LLP

post modified 15 January 2022