By Sharon Beck*[1]

Freddy McConnell, a single father in the United Kingdom, is expecting his second child in early 2022. When they are born, they will join Freddy’s family, which also includes his first child, SJ. Since giving birth to SJ in 2018, Freddy has raised him as a single father, happily and by choice. But both of his children’s birth certificates will list Freddy as their mother, not father, which Freddy has been fighting since he gave birth to SJ.^[2]

Freddy, assigned female at birth, is a trans man and began medically transitioning in his 20s.^[3] His legal sex was changed to male the year before he gave birth to SJ.^[4] Because Freddy has wanted to have children his whole life, he decided to carry and deliver his first child after discovering that he could do so, despite having been on testosterone.^[5]

Despite Freddy’s legally recognized gender, he is listed as SJ’s “mother.” In the U.K., the person who gives birth to a child is automatically listed as “mother” on the birth certificate. This not only applies to surrogate mothers, who have agreed to carry and deliver a child for another person or couple,^[6] but also to parents like Freddy, who carry and deliver their children but do not raise them as their mother.

When SJ’s birth certificate listed Freddy as his “mother,” Freddy appealed the registration. His case has made its way through the U.K. courts, unfortunately with no success. In April 2020, the country’s appeals court handed down a devastating decision in which it inserted an unnecessary and discriminatory definition of “mother” into the statutory language of the Births and Deaths Registration Act of 1953.^[7] The issue was one of statutory interpretation – namely: what is a “mother” under the Act? The court of appeals, seemingly relying on its own understanding of “mothers” as well as the definition crafted by lower courts, asserted that “[a]t common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s ‘mother.’”^[8] Moreover, the court stated that the “role of mother” is not determined by a person’s role in the child’s life but their the “role that a person has undertaken in the biological process of conception, pregnancy and birth.”^[9] Finally, the court found that “[b]eing a ‘mother’ or ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific.”^[10]

By concluding that Freddy was properly listed as SJ’s mother, the appeals court turned the term on its head, completely changing its ordinary meaning by cabining the term to a definition that would fit trans men who gave birth. Because the definition of “mother” and “father” are, as the court acknowledges, common law terms, it would have been entirely proper for the court to find that the “mother,” for registration purposes, does not have to be the person that carries and gives birth to a child.

Moreover, the appeals court held that Freddy was still SJ’s “mother” despite his legal recognition as “male” under the Gender Recognition Act (“GRA”).^[11] Section 12 of the GRA limits the effect of a legal sex change on the person’s status as a father or mother of a child.^[12] The court determined that this section applies not only retroactively to a parent’s status in relationship to their children already born, but also prospectively, to a parent’s status in relationship to future children.^[13] In its decision, the court first reasoned that this was the proper reading under the plain meaning of the section.^[14]

The court also argued that the appellant’s (Freddy and SJ) reading would render another section of the GRA meaningless.^[15] In that analysis, the court considered Section 9(2) of the GRA, which merely clarifies that the effect of the GRA is not to change previous events but that a person’s sex on previous documents will be interpreted as their “acquired” sex.^[16] Section 9(2) parenthetically states that the legal sex clarification will also affect future documents and instruments.^[17] The court illogically reasoned that if Section 12 of the GRA was only retrospective, then Section 9(2) would be redundant because Section 12 would cover past events.^[18] Despite the court’s view, it is clear that the two GRA sections touch on entirely different issues; while Section 9 is an incredibly broad explanation of how the legal sex change effects previous and future documents, Section 12 only discusses how the change applies to the legal status of children in relationship to the parent.

The appellate court’s willingness to distort the common meaning of “mother” to such an extreme definition, as well as its illogical reasoning in its statutory interpretation, is troublesome and discriminatory. Not only does Freddy deserve to be listed as the correct parent on his children’s birth certificates, but SJ and Freddy’s future children need this incredibly important document to be accurate. The court’s reading of these terms, and the analysis given in support of its reading, are detrimental to society’s evolving understanding of parenthood and gender, and they serve to erase the lived experiences of LGBTQ+ families.

After the U.K.’s highest court found against Freddy and SJ, Freddy announced that he will be appealing this decision to the European Court of Human Rights.^[19] It remains to be seen whether Freddy’s case will finally succeed, securing him, SJ, and the rest of their family the justice they deserve.

More information on Freddy’s journey can be found at his website, social media, and in the 2019 documentary, Seahorse.

 

[1] *Sharon Beck, University of Minnesota Law School Class of 2022, JLI Vol. 40 Lead Note & Comment Editor

[2] See Iliana Magra, Transgender Man in U.K. Loses Appeal to Be Listed as Father, The N.Y. Times (Apr. 29, 2020), https://www.nytimes.com/2020/04/29/world/europe/transgender-man-uk-mother.html (last visited Aug. 30, 2021).

[3] Kate Storey, Freddy McConnell Gave Birth to His Son. Then His Life Changed, Esquire (Jun. 28, 2020), https://www.esquire.com/entertainment/a32758980/freddy-mcconnell-seahorse-documentary-fatherhood/ (last visited Aug. 30, 2021).

[4] Magra, supra note 2.

[5] Id.

[6] For more information on the legal status of surrogates, see Surrogacy: Legal Rights of Parents and Surrogates, Gov.UK, https://www.gov.uk/legal-rights-when-using-surrogates-and-donors (last visited Aug. 30, 2021).

[7] McConnell v. The Registrar General For England And Wales [2020] EWCA Civ 559, [14] (appeal taken from Eng.), https://www.judiciary.uk/wp-content/uploads/2020/04/McConnell-and-YY-judgment-Final.pdf. See generally Births and Deaths Registration Act 1953, 1 & 2 Eliz. 2, c. 20, § 1 (Eng.), https://www.legislation.gov.uk/ukpga/Eliz2/1-2/20.

[8] McConnell v. The Registrar General For England And Wales [2020] EWCA Civ 559, [14] (appeal taken from Eng.), https://www.judiciary.uk/wp-content/uploads/2020/04/McConnell-and-YY-judgment-Final.pdf.

[9] Id.

[10] Id.

[11] Id.

[12] Gender Recognition Act 2004, c. 7 § 12, https://www.legislation.gov.uk/ukpga/2004/7/section/12 (“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 a child.”).

[13] McConnell v. The Registrar General For England And Wales [2020] EWCA Civ 559, [14] (appeal taken from Eng.), https://www.judiciary.uk/wp-content/uploads/2020/04/McConnell-and-YY-judgment-Final.pdf (“By virtue of that section the status of a person as the father or mother of a child is not affected by the acquisition of gender under the GRA, even where the relevant birth has taken place after the issue of a GRC.”).

[14] Id. at [30].

[15] Id. at [31].

[16] Gender Recognition Act 2004, c. 7 § 9, https://www.legislation.gov.uk/ukpga/2004/7/section/9.

[17] Id.

[18] McConnell v. The Registrar General For England And Wales [2020] EWCA Civ 559, [31] (appeal taken from Eng.), https://www.judiciary.uk/wp-content/uploads/2020/04/McConnell-and-YY-judgment-Final.pdf (“The birth of a child is clearly capable of being an event occurring before a certificate was issued. Section 9(2) therefore already caters for that situation and makes it clear that the certificate does not affect what has happened already.”)

[19] Freddy McConnell, Going to the European Court of Human Rights, Freddy McConnell (Nov. 28, 2020), https://freddymcconnell.com/blog-everything/going-to-the-european-court-of-human-rights.