By Caragh Deery - Law Student @ St Hilda's College, Oxford
Case Commentary: R (McConnell and YY) v Registrar General [2020] EWCA 559
Freddy McConnell was registered female at birth but transitioned to live in the male gender in 2010. He had taken steps to medically confirm his gender and was legally recognised as a man after obtaining a Gender Recognition Certificate in 2017. Shortly thereafter, Mr McConnell underwent fertility treatment, became pregnant, and gave birth to a son (YY). He was informed by the Registry Office that he had to be registered as the child’s ‘mother’. Mr McConnell brought proceedings for judicial review, seeking a declaration that he was to be regarded as YY’s ‘father’, ‘parent’ or ‘gestational parent’ and was entitled to be registered accordingly. He alleged that if the law required him to be registered as YY’s ‘mother’, this would infringe his and YY’s rights under Article 8 (the right to respect for private and family life) and Article 14 (the right to enjoy the rights and freedoms of the Convention free from discrimination) of the European Convention on Human Rights.
The case reached the Court of Appeal in 2019. It upheld a High Court ruling that motherhood is defined by the role a person plays in the biological process of conception, pregnancy and birth regardless of whether that person is legally considered to be a man or a woman, thereby detaching motherhood from gender. As far as fundamental rights were concerned, the judges effectively prioritised the right of a child born to a transgender parent to know the biological reality of its birth, rather than the parent’s right to be recognised on the birth certificate in their legal gender. Mr McConnell therefore had to be registered as the ‘mother’ of his child despite the fact that this did not match the social reality of his role as YY’s ‘father’.
The decision was legally sound. It was consistent with other areas of family law, struck a proportionate balance between the competing rights at stake, and afforded sufficient respect to the competence of Parliament. If the Court had taken the route argued for by Mr McConnell and allowed him to be registered as YY’s ‘father’ or ‘parent’, its decision would have caused uncertainty for rights and duties derived from other statutes reliant on the word ‘mother’. However, the fact that the application of the law required Mr McConnell to be registered as YY’s ‘mother’ at all reflects the failure of family law to capture modern families. The time has come to consider whether the law should de-gender parenthood and provide alternative gender-neutral labels for parents.
If the trans community and its supporters are to achieve systemic change, attention should be redirected towards Parliament. The radical overhaul of the law required to achieve what was being argued for in McConnell can only be implemented following a thorough review of the law to assess whether such reform is normatively desirable, and a consultation to determine the nature of any reform. What is clear is the pressing need for such discussions to take place. As long as the rights of minority groups are compromised, the law will fail to protect the most vulnerable.
Further reading:
1. The Court of Appeal’s judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/559.html
2. An article from The Guardian discussing the Court of Appeal’s decision:
3. An article discussing a statute which has been introduced in Ontario which replaces terms such as ‘mother’ and ‘father’ with gender-neutral labels: