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Trans rights in family law - is the law evolving too slowly?

View profile for Vikkie Chetcuti
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LGBT+ History Month takes place every February, to promote equality and diversity and increase awareness of the LGBT+ community.  We thought it would be useful to put a spotlight on two recent cases affecting the transgender community. Family law is an area which continues to evolve, although it is often criticised for not doing so fast enough to keep up with modern families. In particular, the family courts in England and Wales have been criticised in their treatment of the transgender community, and two recent decisions are explored below. 

The case of Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 2374involved the Tavistock and Portman Gender Identity Development Service (“GIDS”) and their referrals of children under 16 and young people under 18 with gender dysphoria to NHS Trusts for the prescription of puberty blockers.

The case was brought by Keira Bell, who was a former GIDS patient, and the mother (“Mrs A”) of a 15-year-old autistic child who was on the GIDS waitlist. Ms Bell had transitioned while she was a patient of GIDS, but later de-transitioned as an adult. Mrs A’s concern was theoretical in nature as her child would not have passed the GIDS criteria for the prescription of puberty blockers.

Ms Bell and Mrs A argued that those under the age of 18 should not be referred for puberty blockers because they are not competent to consent to such treatment. They further argued that puberty blockers had life changing significance and almost always led those who received them down a path towards further irreversible treatment. GIDS argued against this, stating that those who had the treatment were capable of giving consent and that their procedures and policies ensured that if a child did not have sufficient understanding and intelligence to comprehend the nature of their treatment, they would not proceed with it.

The court did not consider the advantages or disadvantages of prescribing puberty blockers. The legal issues for the court to consider concerned identifying circumstances where a child could be held competent to give valid consent. It held that it was highly unlikely that a child aged 13 or under would be able to give such consent. It also placed doubt on whether a child aged 15 or 16 would be able to sufficiently understand the long-term risks and consequences of such treatment. Even in children over 16, the court questioned whether authorisation from the court should be sought before starting treatment. However, no firm decision was made in respect of the latter two age groups.

Following the decision, the NHS made amendments to its standard contract with GIDS, including the provision that any child under 16 should not be referred for puberty blockers without the court’s authorisation. It also asked that reviews be conducted into children who were already having treatment, to assess whether they needed the court’s authorisation to continue.

The outcome of the case has disappointed the transgender community who fear that denying young people access to puberty blockers (which help them avoid undergoing puberty thus making transition easier) will result in devastating consequences for young trans people. On the other hand, the judgment has been welcomed by those who believe that children should not be making life changing decisions before they have the requisite maturity to understand the irreversible consequences

Another case that has drawn criticism from the transgender community is R (On the Application Of TT) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam). This case involved Freddy McConnell, a transgender male who became pregnant (using his own eggs and a sperm donor) and gave birth to a child in 2018. Although he was born a female, he transitioned at the age of 22 and in April 2017 received a Gender Recognition Certificate confirming that he acquired the male gender “for all purposes”.

The issue in the case was whether Mr McConnell should be recognised on the child’s birth certificate as the mother or father. Mr McConnell said he should be recognised as the child’s father or, in the alternative, the child’s “parent”, whereas the Registry Office stated that he should be listed as the mother. He sought to reverse the decision of the Registrar General and, if unsuccessful, he sought a declaration that such registration breached his and the child’s human rights.

The case was heard by the President of the Family Division, Sir Andrew McFarlane, who considered the definition of a “mother”. Section 33 of the Human Fertilisation and Embryology Act 2008 defines “mother” as “the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child”. The President noted that no reference is made to the artificial insemination of a person’s own eggs, which is the process Mr McConnell underwent. He also concluded that the definition at common law is “a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child” and that a person’s gender can be different to their status as a parent.

The President found that Mr McConnell is the child’s mother for the purposes of the registration of the child’s birth and dismissed his application. Mr McConnell sought to appeal the judgment, but it was rejected, the court having undertaken a balancing exercise in respect of the potential infringement to his human rights and concluding that the rights of a child to know the biological reality of their birth outweighed a parent’s right to be recognised on the birth certificate as their legal gender. Mr McConnell appealed to the Supreme Court but was not successful. Mr McConnell has recently confirmed that he will be taking the matter to the European Court of Human Rights.

If you need any advice about any of the issues raised here, our team of specialist family lawyers can assist. Do not hesitate to contact us at mail@burgessmee.com or on 0203 824 9550.

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