Mothers and others: Transgender birth, birth registration and the rights of the child, with a focus on the United Kingdom and South Africa
| DOI | 10.1177/1358229120970142 |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| Subject Matter | Articles |
Article
Mothers and others:
Transgender birth, birth
registration and the
rights of the child, with a
focus on the United
Kingdom and South Africa
Julia SlothNielsen
1
and Rachel SlothNielsen
2
Abstract
The review concerns the position of the identification as ‘mother’ or ‘father’ of trans
persons who give birth. This matter has occupied courts in the United Kingdom, Ger-
many, Brazil and Sweden recently, and could well arise in South Africa, our country of
origin. The first part of the discussion relates to a claim of a trans man who gave birth to
be registered as the father of the child. The legal situation in South Africa and the United
Kingdom is compared, and particular focus is placed on the meaning of ‘mother’.
A second issue for discussion relates to the right of the child born to a trans person to
birth registration, notably, what the child’s interests are in relation to his or her parent’s
identification details on his or her birth certificate. We conclude that the gender identity
of the trans parent must be the primary factor determining his or her registration as a
parent on the birth certificate, and that this solution also better serves the child’s best
interests.
Keywords
Transgender, identity, birth registration, children’s rights, best interests
1
Faculty of Law, University of the Western Cape, Bellville, South Africa
2
Miller du Toit Cloete Inc., Cape Town, South Africa
Corresponding author:
Julia SlothNielsen, Faculty of Law, University of the Western Cape, Robert Sobukwe Avenue,
Bellville 7535, South Africa.
Email: jsloth-nielsen@uwc.ac.za
International Journalof
Discrimination and theLaw
2020, Vol. 20(4) 203–223
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1358229120970142
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Introduction
On 21 April 2017, a child known only as YY was conceived by means of intra-uterine
insemination fertility treatment in the United Kingdom. This is not novel or particularly
ground-breaking- children are conceived by means of fertility treatment increasingly
often. However, in this case, just 10 days earlier, on 11 April 2017, a Gender Recognition
Certificate had been issued to the person to whom YY would be born confirming that he
was male.
Freddy McConnell (referred to throughout the judement as TT by reason of an
anonymity order),
1
a man in law for all intents and purposes, got pregnant, carried the
pregnancy to full term; in January 2018 he gave birth to his son YY. However, upon
registration of the birth, McConnell (or TT), who was not married nor in a relationship at
the time of YY’s birth, was informed that he had to be registered as the ‘mother’ on YY’s
birth certificate. This led to him bringing a claim for judicial review of the Registrar
General’s decision to register him as the ‘mother’ and not father, or alternatively to
register him as the ‘parent’, of the child he had given birth to.
The question put to the High Court (Family Division) for determination was thus, as
The Right Honourable Sir Andrew McFarlane so clearly put it: ‘Is that man the “mother”
or the “father” of his child?’
2
Counsel for TT essentially argued his case based on the assumption that the terms
‘mother’ and ‘father’ are inher ently gendered terms; or put in overly simple terms:
mother ¼female and father ¼male. Thus, as TT was legally male at the time YY was
born, he averred that he must be registered as YY’s father. In contrast, counsel for the
government asserted that ‘mother’ did not necessarily refer solely to the female gender
(or father to the male gender) but rather, as a matter of UK domestic law, the term
‘mother’ means the person who gave birth to the child.
3
‘On the government’s case, the
attribution of status is of mother determined by the person’s biological role in the process
of conception, pregnancy and birth; on TT and YY’s case, the attribution of status is
determined by reference to a person’s gender at the time of the child’s birth’.
4
In order to properly understand the nuances of these two arguments, it is necessary to
briefly explain the difference between sex and gender, bearing in mind that the definition
of these terms is constantly evolving, and that there are differences of opinion among
various groups of persons.
5
In the last 45 years, ‘gender’ has been understood as different to ‘sex’ by reference to a
difference between the body, biology and being ma le or female (‘sex’) and social and
cultural roles inscribed on bodies; masculinity and femininity (‘gender’).
6
Sex has been traditionally understood as the biological distinction between men and
women.
7
This biological distinction is made up of the presence or absence of certain
organs, sex characteristics and hormones. Thus, which internal and external organs are
present in a person, as well as certain hormonal factors, will determine whether one is
classified as male or female.
On the other hand, gender is commonly regarded as referring to how society thinks
men and women should act (as defined by their real or perceived biological differences)
204 International Journal of Discrimination and the Law 20(4)
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