Transgender man's application to be registered as father

This case examined the question of whether when a person, who was born female but has undergone gender transition and is now legally recognised as a male, gives birth to a child they should be registered as the child's "mother" or "father". An application for judicial review was made after the decision by the Registrar General that, despite the fact that the claimant was legally male at the time that he gave birth, he must be registered as his child's "mother".

The judgment establishes a definition of the term "mother" for the first time under English Common Law and then considers whether that definition is altered by any of the relevant Acts of Parliament, namely the Human Fertilisation and Embryology Acts 1990 and 2008 and the Gender Recognition Act 2004.

The President of the Family Division, the Rt Hon Sir Andrew McFarlane, concludes that "… there is a material difference between a person's gender and their status as a parent. Being a ‘mother', whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person's gender is ‘male', their parental status, which derives from their biological role in giving birth, is that of ‘mother'."

The case also looks at whether, if the claimant is to be regarded as the mother under English law, that breaches his and his child's right to respect for their private and family life under Article 8 of the European Convention on Human Rights (ECHR) to such an extent that the court should declare that the English law on this point is incompatible with the ECHR under section 4 of the Human Rights Act 1998. The judgment concludes that English law is not incompatible with the ECHR but recognises that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. Therefore, as a matter of public policy, there is "a pressing need" for the 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".

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