By Tanya Kriplani Manglani
Freddy McConnell is a 34-year-old man. He has lived as a man for several years. He is, however, transgender – in 2018, in order to become pregnant and give birth, he suspended his testosterone hormone treatment which he had been undergoing since 2013.
As such, despite his passport and medical records documenting him as being male, he was listed as being the child’s mother on his child’s birth certificate.
McConnell, citing this as being “distressing”, took his case to court in an attempt to have this changed – but unfortunately, to no avail.
In 2019, a High Court verdict held that “motherhood is defined as being pregnant and giving birth”, and as such argued that it was irrelevant whether the person in question considered themselves to be a man or a woman, or even what their legal documents listed them as being.
In early 2020, McConnell challenged this decision in the Court of Appeal, but once again, was unsuccessful – here, Lord Chief Justice Burnett held that it was the right of a child who had a transgender parent to know their “biological reality”, and that this right should be prioritised over the parent in question’s right to be recognized on the child’s birth certificate as the gender they identify with.
This past November, McConnell took his case to the Supreme Court, which refused to consider his final appeal on the basis that it does “not raise an arguable point of law”.
Whilst McConnell may have exhausted the legal resources available to him in the UK, he has stated that he is not giving up on his legal battle yet and will be taking his case to the European Court of Human Rights on the basis of the principle of non-discrimination.
This case had the potential to be ground-breaking in the ambit of family law in the UK if McConnell was successful in his legal battle; the fact that the legal system was overall unwilling to consider their treatment of transgender parents, however, has far-reaching implications anyways.
As McConnell points out, “the law around birth registration doesn’t treat LGBTQ+ people equally on any level” and that the rules surrounding the registration of parenthood for LGBT people “needs [to be] fully overhauled”. LGBTQ+ campaigners, like the chief executive of Stonewall, also expressed how they were “deeply disappointed”, stating that “all parents […] deserve to be recognized for who they are” and that “the supreme court has missed an opportunity to progress equality”.
The fact that all three courts to which McConnell took his case had three completely different lines of argumentation as to why they rejected his pleas in and of itself proves how the laws surrounding the transgender community and parenthood are, at best, unclear, and at worst incredibly lacking and incompatible with modern, evolving notions of the family.
The idea that gender is a construct and should be treated as a spectrum rather than a binary is one which gains more traction every day; eventually, unless willing to expand and reform, the family law institution will end up becoming completely incompatible with these notions, which could potentially lead to a new wave of inequality and injustice for LGBTQ+ people, specifically for transgender people.
The European Court of Human Rights, however, has been pivotal in advancing LGBTQ+ rights in the UK – their take on McConnel’s case is highly awaited by the transgender community and allies of the LGBTQ+ community alike.