Trans (legal) parenthood and the gender of legal parenthood

Abstract

Trans identities are increasingly subjected to contentious public and political debate in the UK, and this has resulted in resource to the law across various contexts. Against that background, this paper considers trans legal parenthood after the decision in R (McConnell and YY) v Registrar General for England and Wales. This judgment held that a trans man who gave birth was the legal ‘mother’ of his child. The wider consequence is that trans legal parenthood will not reflect trans identities, but birth-assigned sex/gender, regardless of whether the parent holds a gender recognition certificate. Separate from this underlying social and political context concerning trans identities, the paper argues that legal parenthood is a flexible and pragmatic concept, which lacks inherent normative content, and which has previously proved capable of accommodating a variety of different familial and reproductive circumstances. The paper argues that the gendered descriptors of ‘mother’ and ‘father’, while remaining the law's default, are not inherent to legal parenthood. Thus, the paper concludes that, despite the ongoing political and cultural debates concerning trans identities, the existing concept of legal parenthood is capable of properly recognising trans parenthood, without requiring any fundamental changes to the concept itself.

Introduction

This paper considers trans¹ legal parenthood in the UK, focusing on the judicial response to trans parenthood and exploring the wider implications of trans parenthood for legal rules and legal language. This consideration is underpinned by two countervailing wider trends: (i) the increasingly contentious contemporary social, political and legal debates around trans identities; and (ii) the greater recognition of the diversity of family forms within family law. First, the interaction between the concepts of ‘sex’ and ‘gender’ has become the site of significant debate, both inside and outside law in the UK.² This has encompassed a range of issues, including: potential reforms allowing for ‘self-identification’ of trans identities,³ with proposed legislation in Scotland⁴ blocked by the UK Government in early 2023,⁵ and the interaction between the Gender Recognition Act (the 2004 Act) and the Equality Act 2010; particularly the ‘protected characteristics’⁶ of ‘sex’⁷ and ‘gender reassignment’⁸ under the Equality Act 2010.⁹ Further complexity arises because the terminology involved is contested by those that oppose liberalisation of the law, and debates often revolve around central philosophical or moral questions – ‘what is a woman?’ and ‘what is a man?’ This political and social context has led to several cases being brought concerning the legal definitions of ‘sex’ and ‘gender’ under different statutes.¹⁰ Therefore, judicial consideration of trans legal parenthood is situated within this wider context of judicial interpretations of ‘sex’ and ‘gender’, and the contested socio-political terrain concerning trans identities.¹¹

Secondly, there has been increasing legal recognition of family diversity,¹² seen through the Human Fertilisation and Embryology Act 2008's (the 2008 Act) ‘parenthood provisions’,¹³ equal marriage¹⁴ and mixed sex civil partnerships.¹⁵ Fifteen years ago, Diduck commented: ‘[n]ew families and new parenthoods seem on their face to require new rules as well as new language’.¹⁶ Trans parenthood represents a paradigmatical example of a ‘new parenthood’; it questions assumptions about the biological contributions of ‘mothers’ and ‘fathers’ to parenthood, due to the divergence between individuals’ ‘gender identity’ and their ‘assigned sex’,¹⁷ and the legal change of sex and gender under the 2004 Act.¹⁸ The law must respond to men who give birth, women who provide sperm and parenthood of people who reject either sex/gender.¹⁹ Judicial consideration of trans parenthood illustrates what McCandless and Sheldon described as ‘the tensions inherent in continuing to map our legal determinations of parenthood to a family model that is unmoored from its traditional underpinnings’.²⁰

This paper will first consider the concept of legal parenthood,²¹ exploring the purpose(s) served by the concept, and how legal parenthood has developed. Secondly, the paper will outline the statutory regime in the 2004 Act. Thereafter, the paper will consider the case law on trans parenthood – McConnell ²² and JK ²³– focusing on the questions of language raised. Subsequently, the paper will situate this language within legal parenthood, considering the role of the gendered descriptors of ‘mother’ and ‘father’, and why the law struggles to accommodate trans identities in the description of their legal parenthood. Ultimately, I will argue that legal parenthood should be capable of recognising trans parenthood and the identities of trans parents, and that the existing case law reflects apparent judicial understandings that determinations and descriptions of legal parenthood involve normative claims that I argue are not a necessary part of the concept of legal parenthood.

1. Legal parenthood

My starting point is Diduck's observation that ‘[l]egal parenthood is first of all a legal construct’.²⁴ This is often obscured because of legal parenthood's significant consequences. Legal parenthood does not necessarily attempt to describe ‘reality’ or provide the ‘objective truth’ of parenthood. The concept has a narrower purpose – the allocation or determination of a legal status from which legal consequences and obligations derive.²⁵ Legal parenthood's constructed nature is shown by the different types of parenthood (social, intentional, biological, genetic) that are chosen between when determining legal parenthood. Such determinations are often not purely ‘factual’, but reflect choices between competing ‘options’, each with valid justifications, and such choices are often pragmatic rather than normative.²⁶ As Eekelaar has noted ‘there is no supposition that the facts encapsulated in the new “legal truth” in any way represent the reality they are replacing’.²⁷ I argue that this relative conceptual narrowness is fundamentally important to legal parenthood's purpose and function; the concept involves no claim to normative meaning beyond the law. Of course, this understanding of legal parenthood is contested, with Bainham previously arguing that ‘[t]he concept of parentage should rather be confined, to reflect as far as possible the unique position of biological parents’.²⁸ However, as discussed below, whatever the merits of this argument, it is clear that legal parenthood is diverging from biological parenthood in some factual and reproductive contexts.

However, this paper acknowledges that legal parenthood can have tremendous normative or emotional significance for individual parents and children, and for how they are perceived by others,²⁹ because as Everett and Yeatman comment, ‘[t]he words we choose to use to describe relationships have power and we must choose them with care’.³⁰ Critical literature concerning trans identities has argued that formal legal processes (including birth registration),³¹ which may appear to use neutral language, shape the social reality that these processes purport to merely record.³² For trans parents, navigating the legal recording of their identity will not start with their legal parenthood, but rather with the registration of their birth in a sex/gender that is incongruent with their identity. Thus, as Meadow has argued, legal classifications and registrations ‘cut into the very real matter of human bodies and identities’.³³ In this paper, it is not my argument to deny the significance that law and legal concepts can have for individuals, nor the specific effect that the binary legal classifications of sex and gender has for trans identities. Instead, I argue that this normative significance for many people is not inherent to the concept of legal parenthood itself. It is axiomatic that individuals can be a child's ‘social’ parent without being their legal parent, and that legal parents sometimes play no role in children's lives. The role of ‘genetics’ is of immense importance to some parents and children, and of limited or no importance to others. The normative or practical importance of those ‘parental’ relationships is not necessarily connected to the legal status they are assigned. Without seeking to deny the significance that legal determinations can have for individuals, I argue that the law should be wary of implying that legal determinations of parenthood have any inherent power beyond the law.

Legal parenthood has proved capable of encompassing parenthood formed in various circumstances, and this has widened substantially over the past 35 years. Legal parenthood is attributed based upon different factors in different contexts, with different legal rules applying to ‘natural reproduction’,³⁴ assisted reproduction,³⁵ adoption,³⁶ and surrogacy arrangements.³⁷ The first two involve legal parenthood at birth,³⁸ reflected on birth certificates,³⁹ while the latter two concern legal parenthood created by court orders after birth,⁴⁰ with the original birth certificates unchanged. Thus, the relationship between legal parenthood and birth registration⁴¹ also differs in different contexts. For unmarried men in natural reproduction, registration itself creates the (presumption of) legal parenthood, whereas in assisted reproduction, legal parenthood is determined by the 2008 Act's ‘parenthood provisions’ at the point of conception, rather than at the point of registration, and both adoption and parental orders create legal parenthood subsequent to birth registration. The boundaries of legal parenthood have shifted, and the concept has adapted to changing circumstances, suggesting that legal parenthood is neither fixed nor immutable. While legal parenthood can reflect ‘biological’ parenthood,⁴² or ‘genetic’ parenthood,⁴³ this is not necessarily what the concept is designed to do, and legal parenthood is explicitly capable of accommodating different forms of parenthood formed by different types of family in different ways.⁴⁴ This flexibility and responsiveness to social change has been central to how legal parenthood has developed.

The default position remains for legal parenthood to be expressly gendered – one ‘mother’ and one ‘father’ – but there are exceptions. Adoption orders (‘An adopted person is to be treated in law as if born as the child of the adopters or adopter’)⁴⁵ and parental orders (‘the court may make an order providing for a child to be treated in law as the child of the applicants’)⁴⁶ both create gender-neutral legal parenthood. These provisions both use the phrase ‘treated in law’, suggesting an acknowledgement that legal parenthood is created, rather than law reflecting the ‘factual reality’ of parenthood.⁴⁷ The 2008 Act provides for one ‘mother’ and one ‘parent’ from birth in certain circumstances involving female same-sex couples undertaking assisted reproduction.⁴⁸ It is in factual contexts other than ‘natural’ reproduction that these gender-neutral descriptors are used, and outside of the limited circumstances of the 2008 Act gender-neutral language is applied to post-birth legal parenthood created through court orders.⁴⁹ Nonetheless, despite these acknowledged limitations, it appears uncontroversial to observe that legal parenthood is expressed using gender-neutral language in some contexts, and that this has been true since the Adoption of Children Act 1926.⁵⁰ The existence of legal parenthood which is not described using the gendered language ‘mother’ and ‘father’ undermines suggestions that those gendered descriptors (although they remain the default) represent an inherent part of legal parenthood.

However, in contrast to this terminological flexibility, legal parenthood remains strictly limited to a maximum of two parents,⁵¹ reflecting what I have described as ‘a binary, two-parent model, which is derived from the traditional, heterosexual, nuclear family model’.⁵² Thus, the concept remains inflexible in terms of the number of parents permitted. Legal parenthood is underpinned by traditional, heterosexual norms, but these have been stretched to accommodate parenthood in diverse familial and reproductive contexts, subject to the continuing limitation to two people.⁵³ Undoubtedly, despite this ‘stretching’, legal parenthood remains premised upon these traditional, heteronormative assumptions and norms.⁵⁴ Consequently, limitations remain on legal parenthood based around the extent to which diverse parenting practices are able to sufficiently ‘mirror’ these hetero(norms) of parenthood. Thus, intended parents in surrogacy arrangements cannot both be legal parents at birth,⁵⁵ the 2008 Act does not allow for two legal ‘mothers’,⁵⁶ and in cases involving ‘natural’ reproduction, the gendered descriptors of ‘mother’ and ‘father’ remain.⁵⁷ However, despite these limitations, the flexibility of legal parenthood is evident in both the evolution of the different bases on which it can attributed, and through the extension of who can become legal parents in some contexts.

This paper's subsequent arguments are founded upon three points that underpin my understanding of legal parenthood. First, legal parenthood is a flexible concept, capable of recognising parenthood arising in different factual circumstances, and this is based upon different factors depending upon the circumstances. Secondly, while the orthodox understanding of legal parenthood remains gendered, there are contexts in which legal parenthood is expressly gender-neutral. Therefore, gendered descriptors (although the default terminology) are not inherent to legal parenthood. This paper acknowledges the significant role of the binary, two-parent model of the nuclear family within the legal understanding of parenthood,⁵⁸ but I argue that this significance does not diminish the point that there are exceptions made to the use of the gendered descriptors of legal parenthood. Thirdly, most importantly and most controversially, legal parenthood is a legal construct, and as such, the concept contains no claims to any normative meaning beyond the law. While I accept the significance that legal parenthood can have for some parents and children in terms of their identity, I argue that the purpose of legal parenthood is not to provide the ‘objective truth’ or ‘reality’ of parenthood. Instead, legal parenthood should be understood as determining the individuals that are considered parents for legal purposes. In this paper, I will consider the judicial engagement with trans parenthood through this understanding and suggest that the concept of legal parenthood should be capable of recognising trans legal parenthood congruently with trans identities.⁵⁹ Before that, this paper will outline the UK's regime of ‘gender recognition’, which underpins judicial engagement with trans parenthood.

2. The Gender Recognition Act 2004

Legal recognition of trans identities is provided by the 2004 Act.⁶⁰ This responded to the decision in Goodwin v UK,⁶¹ where lack of recognition was held to violate Article 8 and Article 12 of the European Convention on Human Rights (ECHR), with the court noting, ‘the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone is [sic] not quite one gender or the other is no longer sustainable’.⁶² The 2004 Act resolves this through section 9(1):

Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).

The effect of a gender recognition certificate (GRC) is that an individual's legal sex and gender are aligned with their ‘gender identity’,⁶³ rather than their birth-assigned sex/gender. As Barnes has noted, ‘[t]he Act overwhelmingly uses the terminology of “gender” rather than “sex” but section 9 is an exception’.⁶⁴ The legislative history shows that this inclusion of ‘sex’ represented a deliberate policy choice.⁶⁵ However, the certificate is qualified by section 9(2), which states that a GRC ‘does not affect things done, or events occurring, before the certificate is issued’, meaning a GRC does not have retrospective effect, and by section 9(3), which provides the GRC ‘is subject to provision made by this Act or any other enactment or any subordinate legislation’. The 2004 Act contains various exceptions,⁶⁶ and other provisions relating to GRCs,⁶⁷ limiting section 9(1)'s effects. For this paper, the most important is section 12: ‘[t]he 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’. This language is ambiguous; it is unclear whether this applies to parenthood after a GRC, or clarifies the position for parenthood which exists when the certificate is granted. The explanatory notes state: ‘[t]his provides that though a person is regarded as being of the acquired gender, the person will retain their original status as either father or mother of a child. The continuity of parental rights and responsibilities is thus ensured’.⁶⁸ The language ‘their original status’ and ‘continuity’ suggests that when the legislation was enacted the provision was understood to apply to existing parenthood, not parenthood after the granting of the GRC.⁶⁹ Given the prevailing social understandings, it is arguable that parenthood after a GRC was beyond the contemplation of Parliament when debating the 2004 Act.⁷⁰ The interpretation of section 12 was central to McConnell, and the judicial approach is considered below.⁷¹

Finally, while increasingly contentious debates continue regarding reform for GRCs to be granted based on ‘self-identification’,⁷² rather than through application to the Gender Recognition Panel,⁷³ in England and Wales such reform is not being taken forward,⁷⁴ and the proposed Scottish legislation was blocked by the UK Government.⁷⁵ Given the low uptake of GRCs,⁷⁶ there will continue to be a much larger group of trans people without GRCs, whose legal sex and gender remains that assigned at birth. There are significant legal consequences bestowed by a GRC and, as the UK Government have previously noted: ‘GRCs also provide trans people with the dignity and respect that can come from having their acquired gender officially recognise by the state’.⁷⁷ However, as the paper now set outs, due to the judicial interpretation of the 2004 Act it appears that a GRC has no effect on legal parenthood.

3. The trans parenthood cases

The English courts considered trans parenthood⁷⁸ in R (on the Application of JK) v Registrar General for England and Wales ⁷⁹ and R (McConnell and YY) v Registrar General for England and Wales.⁸⁰ These involved judicial review of the Registrar General for England and Wales’ decisions to use the gendered language of ‘mother’ and ‘father’ to register the trans parent on birth certificates. The challenges were that registration contrary to their identities – registering the trans parent in birth-assigned sex/gender – breached their ‘right to respect for private and family life’ under Article 8 of the ECHR. The circumstances and legal status of the respective trans parents were different. In JK, a trans woman had two ‘naturally conceived’⁸¹ children with her wife – one prior to and one after transition. The decisions to register her as ‘father’ on the second child's birth certificate and not to alter the first child's birth certificate after transition were challenged. When the second child was born, JK did not have a GRC, but by the hearing she had an interim GRC and had applied for a full certificate.⁸² In McConnell, a trans man (Freddy McConnell)⁸³ gave birth to a son following assisted reproductive treatment using donor sperm. He challenged the decision to register him as ‘mother’ on the birth certificate. In contrast to JK, Mr McConnell had a GRC at both treatment and birth.⁸⁴ Therefore, he was a man ‘for all purposes’,⁸⁵ subject to the 2004 Act's exceptions. McConnell involved a trans parent whose legal sex and gender reflected their identity, while JK involved a trans parent who did not have such recognition. It might be expected that this difference would have had a consequential impact upon the decisions. However, both applications were unsuccessful, and the registrations were not changed. Given this, the paper focuses upon the implications of the judicial reasoning for the understanding of trans legal parenthood.

First, given that JK did not possess a GRC at the time of either birth, the judgment unsurprisingly focuses upon Article 8,⁸⁶ as she remained legally male. Despite holding that Article 8 was engaged,⁸⁷ and that the interference with JK's rights was material,⁸⁸ the judgment determined that the interference was justified due to ‘the coherence of the birth registration scheme’⁸⁹ and ‘the principle that a birth certificate shows the relevant details of a child as at his or her birth, and those details cannot be changed’.⁹⁰ In this paper, I am not focused upon these human rights arguments,⁹¹ or arguments regarding the birth registration scheme,⁹² but upon the implications for the understanding of trans legal parenthood. This limitation to the scope of the central argument of this paper is not intended to suggest that either of these arguments are unimportant, but instead is because my focus, in this paper, is on the concept of legal parenthood, and what trans parenthood reveals about that concept. To that end, Hickinbottom J stated: ‘[i]t is therefore inherent in the GRA 2004 that, following a gender change, a “mother” may be a man and a “father” may be a woman’.⁹³ This (somewhat ambiguous) language seems to refer to legal ‘motherhood’ and legal ‘fatherhood’ continuing for trans parents where legal parenthood existed prior to the GRC. This interpretation is strengthened by the observation that, ‘the principle that a transsexual should be able to keep private his or her gender reassignment bows to the principle that history should not be rewritten’.⁹⁴ These statements illustrate the divergence between the gendered descriptors of legal parenthood and trans identities. This disjuncture between a person's gender and the gendered descriptor of their legal parenthood represents a novel situation. I argue that this creates problematic consequences for the capacity of the law to fully recognise trans parent's identities if their parenthood cannot be expressed in language congruent with those identities. Relatedly, Hickinbottom J commented that, ‘[s]exual identity and the choice of gender represent important elements of an individual's fundamental identity. However, parentage is also a vital element in that identity’.⁹⁵ This positions the child's ‘parentage’, appearing to mean genetic paternity, in opposition to the parent's ‘choice of gender’. However, legal parenthood does not simply recognise genetic parenthood. There are several contexts, discussed above, in which legal parenthood does not reflect genetic parenthood. The significance given to ‘parentage’ is questionable, because it implies a greater role for genetic paternity within legal parenthood than actually exists. With that said, the lack of GRC is fundamental to the JK decision. In contrast, McConnell involved trans legal parenthood that occurred after the granting of a GRC.

Secondly, the Court of Appeal judgment in McConnell focuses upon statutory interpretation and the Human Rights Act 1998 (the 1998 Act).⁹⁶ The judgment held that the relevant provisions of the 2004 Act – section 9 and section 12 – compelled registration as ‘mother’,⁹⁷ and that Article 8 was not violated, meaning that neither section 3 nor section 4 of the 1998 Act was applicable.⁹⁸ As with JK, in this paper, I am not focused upon the human rights arguments,⁹⁹ or the wider issues regarding the birth registration regime,¹⁰⁰ but on the implications for the understanding of trans legal parenthood. Undoubtedly, the human rights arguments are crucial to the decisions in both JK and McConnell, but these arguments are largely separate from the issues regarding the implications of the gendered descriptor used for trans legal parenthood. Both JK and Mr McConnell were legal parents; the issue was the gendered language used to describe their parenthood, which has no substantive legal significance. The human rights arguments are focused upon the identity implications for trans parents and their children of the current registration system, rather than upon the concept of legal parenthood itself.¹⁰¹

With that said, the interpretation of section 12 is described as ‘the critical issue’¹⁰² within the judgment. However, as mentioned previously, the provision's language is ambiguous. The judgment held that this provision had both prospective and retrospective effect.¹⁰³ This interpretation did not reflect the academic literature prior to McConnell,¹⁰⁴ with Gilmore having observed, ‘the better view is probably that this provision is aimed at parental status which existed prior to recognition of the acquired gender. Thus it does not affect a person's ability to acquire legal parenthood in the acquired gender.’¹⁰⁵ The judgment adopted the contrary interpretation, and the legal parenthood of a GRC holder will be described in their birth-assigned sex;¹⁰⁶ Mr McConnell is the legal ‘mother’. This decision goes further than JK and creates divergence between the female gendered descriptor of legal parenthood and Mr McConnell's legally recognised male sex and gender. However, the Court of Appeal did not engage with the underlying questions regarding the meaning of ‘mother’, ‘father’, or ‘parent’,¹⁰⁷ and I have previously argued that the judgment's approach allowed ‘the court to ignore some of the more conceptual questions and the issues of public policy that are undoubtedly raised by the underlying issue of the parental status of men who give birth’.¹⁰⁸

The meaning of these gendered descriptors is explored in the first instance judgment;¹⁰⁹ this reached the same conclusion as the Court of Appeal, but addressed these conceptual questions. The first sentence – ‘[i]n this case the court is required to define the term “mother” under the law of England and Wales’¹¹⁰ – illustrates the scope of the judgment. Later, Sir Andrew MacFarlane P observed:

[B]eing a ‘mother’ is to describe a person's role in the biological process of conception, pregnancy and birth; no matter what else a mother may do, this role is surely at the essence of what a ‘mother’ undertakes with respect to a child to whom they give birth. It is a matter of the role taken in the biological process, rather the person's particular sex or gender.¹¹¹

The judgment argued that ‘mother’ is not gendered, but rather related only to the gestational role in conception. In his conclusion, the President observed that ‘there is a material difference between a person's gender and their status as a parent’.¹¹² Thus, trans legal parenthood is not determined by legally recognised sex and gender. The President reflected the language of JK, noting: ‘[i]t is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female’.¹¹³ The divergence between the gendered descriptors of legal parenthood and the gender of the trans parent unquestionably creates issues for trans parents’ identities, because their legal parenthood is recognised using language that opposes their gender. For some trans parents this disjuncture could create significant identity dissonances that may lead them to reject the prospect of parenthood. This position is even more problematic where the trans parent has a GRC, where the descriptor used for their legal parenthood will be in opposition to their legally recognised sex/gender. A trans man with a GRC is legally a man, but will be a ‘mother’ for their legal parenthood and a trans woman with a GRC is legally a woman, but will be a ‘father’ for their legal parenthood. The 2004 Act contains exceptions to a GRC,¹¹⁴ but the purpose of an exception for legal parenthood appears premised, at least based on the McConnell judgment, on wider considerations regarding the birth registration system,¹¹⁵ rather than individualised considerations of trans parents’ identities. Therefore, these decisions suggest that the choice to become a parent could create issues for trans people with their own identity, the identity of their future children, and the complete legal recognition of their sex/gender. Importantly, these issues would not arise if they chose to remain child-free,¹¹⁶ and as Davis describes, ‘[t]his means that some trans parents may actively have to choose between starting a family knowing they will be (legally) misgendered, or abandon hopes of a family due to the lack of correct legal acknowledgement’.¹¹⁷ To put it mildly, I argue that this is a troubling position for the law to find itself putting trans individuals in. This position could be avoided if gendered descriptors of legal parenthood that reflected trans parents’ identities were used.

The result is that while trans parents can be recognised as legal parents, this recognition will definitely be incongruent with their identity and, if they have a GRC, it will be incongruent with their legal sex and gender. The problems for trans parents differ from the problems of intended parents after surrogacy arrangements,¹¹⁸ or female same-sex couples in unregistered relationships who use ‘known donors’ outside of licensed clinics.¹¹⁹ In those circumstances, recognition of legal parenthood may be unavailable due to the legal rules. For trans parents, the language used to describe and record legal parenthood presents an incongruent depiction of trans parents’ gender, or their legally recognised sex and gender. While trans legal parenthood is recognised, the recognition itself involves an undermining of their identity, both as individuals and as parents, through the use of gendered descriptors that do not align with their gender. The only slight potential existing parallel relates to female same-sex couples and the 2008 Act,¹²⁰ where the non-gestational parent is described using the gender-neutral language of ‘a parent’,¹²¹ rather than using either gendered descriptor. However, the non-gestational parent is described in the 2008 as a ‘parent’, rather than using the gendered parental descriptor of ‘father’ that opposes their gender as for trans parents.¹²²

The paper now explores the significance of gender to legal parenthood. I will argue that despite its historical position, and the fact it remains the default linguistic framework, gender retains limited substantive significance within legal parenthood. Therefore, I will argue that the concept of legal parenthood should be capable of describing trans parenthood using appropriate gendered language.

4. The gendered descriptors of legal parenthood and trans parenthood

This section will consider the role of gender within legal parenthood, focusing upon the significance of the gendered descriptors ‘mother’ and ‘father’, how the role of gender has evolved, and the implications for trans legal parenthood.

The status of legal parenthood is distinct from the legal understanding of the parental role – or the gendered parental roles.¹²³ As I have previously argued, ‘this overarching “parental role” remains opaque within legal discourse and judicial interpretation; in sharp contrast to the traditional gendered parenting roles, the role of “parent” lacks any “natural” or “common-sense” construction’.¹²⁴ Judicial language has consistently reflected Lord Scott's comment from Re G (Children) (Residence: Same-Sex Partner),¹²⁵ that ‘Mothers are special’.¹²⁶ The construction of the role ‘mother’, and the importance attached to this role, has exerted substantial influence upon judicial decisions regarding children's residence after parental separation and the parents’ roles in such circumstances.¹²⁷ In this paper, I want to consider the implications of this understanding on the use of the gendered language of ‘mother’ to describe legal parenthood. First, this understanding that the ‘mother [is] special’ is reflected by the legal ‘mother’ being determined by one factor – gestation – in all circumstances.¹²⁸ This contrasts with legal fatherhood,¹²⁹ where different factors are determinative in different contexts.¹³⁰ Secondly, this privileging is explicit in the 2008 Act, where gestation is determinative of the legal ‘mother’ in all circumstances, including where the gestational mother is not the genetic mother.¹³¹ Thirdly, there has been judicial emphasis on the ‘natural fact’ of gestation within ‘motherhood’, as Lord Simon observed in the Ampthill Peerage Case:¹³² ‘Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition’.¹³³ As I have commented, ‘the law is content to affirm “motherhood” as a “natural”, quasi-mystical relationship and view this solely as a result of gender’.¹³⁴ Thus, legal motherhood is understood as ‘natural’, because it is always based upon gestation. Consequently, there can only be one mother, meaning that ‘motherhood’ is indivisible.

This apparent indivisibility of motherhood and its fixed relationship with gestation is complicated by trans men giving birth. This is illustrated by the language of male ‘mothers’ and female ‘fathers’ in JK and McConnell, and the President's comment that: ‘[b]eing a “mother” or a “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so’.¹³⁵ Despite the relatively anodyne expression, this is a radical statement when compared to the orthodox judicial understanding of the term ‘mother’. The separation of the gendered descriptors of legal parenthood from the gender of trans parents complicates the understanding of the role played by gender within those descriptors. If the gendered language only relates to the different roles played in the reproductive process, rather than the parents’ gender, it is unclear why gendered language is necessary, as opposed to gender-neutral descriptive language reflecting those roles in the reproductive process which acknowledges those different biological contributions, such as ‘gestational parent’ and ‘non-gestational parent’.¹³⁶ However, if the gendered descriptors do relate to the parents’ gender, then trans parenthood questions the underlying ‘natural’ indivisibility of motherhood and its relationship with gestation, because trans men with GRCs who give birth are not women.¹³⁷ As McGuinness and Alghrani anticipated: ‘[b]y forcing definitions to stretch, so that males are acting as “mothers” and females as “fathers” we are tacitly accepting that enforced definitions of gender roles are more important than an acknowledgement of the reality of these situations’.¹³⁸ Thus, it is necessary to consider the role of gender within legal parenthood, and explore the reasons for the continued use of the gendered descriptors of ‘mother’ and ‘father’.

(a)The historical gender of legal parenthood

Historically legal parenthood was entirely gendered – one mother and one father. This language reflected substantive legal differences between the parental roles.¹³⁹ These were encapsulated by Blackstone's statement that ‘for a mother, as such, is entitled to no power, but only to reverence and respect’,¹⁴⁰ and Brett MR's observation in Re Agar-Ellis:¹⁴¹ ‘the father has control over the person, education, and conduct of his children until they are twenty-one years of age. That is the law’.¹⁴² However, these substantive differences between the parental roles were gradually removed.¹⁴³ The gendered language represents an afterimage of this historical distinction between the legal status of men and women as parents. Legally recognised adoption under the Adoption of Children Act 1926 provided the first context where legal parenthood was described using gender-neutral language.¹⁴⁴ The traditional gendered binary of all children having ‘one mother’ and ‘one father’ has not represented the totality of legal parenthood for over 95 years. Despite this gender-neutral language for legal parenthood created through adoption orders, and the removal of the distinction between the legal powers of the parental roles, the gendered descriptors continued to be the default for ‘natural’ reproduction. This shifted to a position in which the gendered language largely represented a mere linguistic distinction. The remaining substantive difference relates to the acquisition of ‘parental responsibility’,¹⁴⁵ the legal responsibility for day-to-day care of children.¹⁴⁶ Under the Children Act 1989, legal mothers automatically acquire parental responsibility at birth,¹⁴⁷ whereas acquisition for legal fathers is more complex, with differences for married¹⁴⁸ and unmarried fathers.¹⁴⁹ I argue that this substantive difference does not require the use of gendered descriptors, because it is premised on the fact of gestation, and on children having (at least) one adult with legal responsibility for them from birth. I argue that to suggest that this justifies the continued use of the gendered descriptors presents a circular argument. These differences could be retained if gender-neutral language were adopted for legal parenthood. The Children Act 1989 could alternatively be amended to take account of the specific circumstances of trans parenthood, as it was for legal parenthood under the 2008 Act, without altering the default position for parental responsibility.

(b)The degendered ‘parent’ in the Human Fertilisation and Embryology Act 2008

The default use of gendered descriptors for legal parenthood was altered by the 2008 Act's ‘parenthood provisions’,¹⁵⁰ which allowed two women to be legal parents from birth.¹⁵¹ These provisions refer to the parent who gives birth as ‘the mother’¹⁵² and the other member of the couple as ‘a parent’.¹⁵³ This provides for legal parenthood that is degendered, and unlike adoption and parental orders, legal parenthood under the 2008 Act occurs from birth. This represented a radical shift of language used to describe legal parenthood. However, the use of ‘parent’ in the 2008 Act is not wholly degendered, because it is only available in specific factual circumstances involving two female parents – a man cannot be listed as ‘a parent’.¹⁵⁴ This distinction is reflected in the birth registration legislation,¹⁵⁵ and was noted in JK.¹⁵⁶ Thus, the gender-neutral descriptor of ‘parent’ for legal parenthood at birth is currently explicitly limited to a ‘second female parent’. Moreover, the use of this gender-neutral terminology of ‘parent’ to describe the legal parenthood of the second female parent has been the subject of academic criticism.¹⁵⁷ This has noted that the linguistic approach continues to be premised upon the indivisibility of the ‘mother’, because a child cannot have two legal mothers. This indivisibility occurs regardless of the familial reality which the 2008 Act endorses in granting legal parenthood to two women from birth. Fenton, Heenan and Rees described the provisions for same-sex female couples as being, ‘set out as a mirror image to that of heterosexual couples’,¹⁵⁸ reflecting the heteronormative assumptions that underpin legal parenthood. However, the 2008 Act rejected the gendered descriptor of ‘father’ for the second female parent, despite this ‘mirror image’ for ‘the father’ and ‘a parent’.¹⁵⁹ This suggests that the gendered descriptor of ‘father’ for women was considered somehow inappropriate, which is different from the approach adopted to trans parenthood. This linguistic distinction between ‘the mother’ and ‘a parent’ has potential significance for parents; and as Diduck has argued, for the degendered ‘parent’: ‘“[d]oing” parenting may make lesbian parents “parents”, but it is often not enough to make them mothers and the difficulties presented by the limitations of language for that form of parenthood are clear’.¹⁶⁰ The statutory creation of circumstances where there is one parent with a gendered descriptor and one degendered ‘parent’ has potential implications for the perception of the two parental roles. However, the potential significance of this perception is not necessarily reflected by the sociological literature on parenting within female same-sex couples,¹⁶¹ where Dunne has noted that couples believe they ‘approached and experienced parenting in ways that were very different from the heterosexual norm’.¹⁶² Regardless of the parenting practices of female same-sex couples,¹⁶³ the rejection of a child having two legal ‘mothers’ reinforces the heteronormative assumptions that underpin legal parenthood. Interestingly, despite this linguistic distinction between ‘the mother’ and ‘a parent’, and the potential for implications for individual's identities, there are no substantive differences between the legal parenthood of the two parents.¹⁶⁴

The potential issues for these ‘parents’ are apparent from the ‘known donor’¹⁶⁵ cases.¹⁶⁶ This is illustrated by Black J commenting in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father):¹⁶⁷ ‘I am considerably influenced by the reality that Mr B is D's father. Whatever new designs human beings have for the structure of their families, that aspect of nature cannot be overcome’.¹⁶⁸ This case occurred before the 2008 Act,¹⁶⁹ when there was no provision for two women to be legal parents at birth. Nonetheless, this language of ‘reality’, ‘father’ and ‘nature’ remains revealing. I suggest that this invocation of ‘reality’ represents an attempt to provide a normative foundation for judicial choices. This reference to ‘reality’ is also problematic because it lacks clarity; is this the ‘biological reality’, or the ‘legal reality’, or a combination of the two? These distinctions are important because in Re D, the biological reality and legal reality converged,¹⁷⁰ whereas in other circumstances the ‘biological reality’ will not reflect legal parenthood, and after the 2008 Act an individual in a similar position to the ‘father’ in Re D would not necessarily be a legal parent. Re G, Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) ¹⁷¹ shows this disjuncture between legal and biological ‘reality’, as the ‘known donors’ were not legal parents. Despite this, Baker J consistently refers to the men as ‘biological fathers’¹⁷² and comments, ‘[a]s a matter of law, Miss Russell and Miss Fottrell are right to describe S and T as strangers to G and Z. But in another sense, they are not strangers’.¹⁷³ This illustrates the ongoing influence of the ‘biological reality’ on judicial understanding.¹⁷⁴ Regardless of these conceptual difficulties for the ‘parent’, the 2008 Act creates legal parenthood at birth that is described using neither gendered descriptor, which represents a significant evolution. When considering the legal parenthood and parenting of same-sex female couples, Smith has argued that: ‘[t]he cases therefore present an opportunity to question the parenting norms and models which currently underpin the legal regulation of parenthood’.¹⁷⁵ I argue that the trans parenthood cases present a similar opportunity to question the dominant assumptions about legal parenthood. From these cases, it is the gendered descriptors of legal parenthood and their underpinning norms that are called into question.

(c)The implications for trans legal parenthood

The McConnell decision has puzzling implications for the 2008 Act's ‘parenthood provisions’ in circumstances where a trans parent is in a relationship with a cis woman¹⁷⁶ and a child is born through the assisted reproductive techniques covered by the provisions. The substance of the rules for ‘fathers’¹⁷⁷ are replicated for second female ‘parents’.¹⁷⁸ For men in registered relationships,¹⁷⁹ section 35(1)(a), and for women in registered relationships, section 42(1)(a), are written in almost identical language. In neither circumstance does the second person become a legal parent based upon their biological connection with the child;¹⁸⁰ instead legal parenthood is based upon their (and the mother's) consent.¹⁸¹ The only difference is the language used for the parental role, ‘the father’ for men and ‘a parent’ for women, and circularly the only factor that determines which provision applies is their sex/gender. However, due to McConnell, the legal parenthood of trans parents will be described using the gendered descriptor that relates to their birth-assigned sex.¹⁸² Therefore, under the ‘parenthood provisions’, a trans man would be described as ‘a parent’ of his children, while a trans woman would be described as ‘the father’ of her children. This seems a particularly unsatisfactory result, given that the partner of the ‘mother’ becomes a legal parent based upon the same substantive rules in both situations. I argue that describing trans legal parenthood congruently with trans parents’ identities in this context should be relatively straightforward given the basis upon which legal parenthood is attributed in the 2008 Act. These implications for trans legal parenthood, under the 2008 Act, illustrate the difficulty of applying McConnell to different contexts, which were naturally not considered by the court. In his judgment, Sir Andrew McFarlane P stated: ‘[t]he status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth’.¹⁸³ This re-asserts the judicial understanding that legal motherhood is indivisible from the biological processes of gestation and childbirth. However, regardless of the validity of this argument in relation to the legal ‘mother’,¹⁸⁴ a comparable argument cannot be made regarding the legal parenthood of ‘the father’ and ‘a parent’ under the 2008 Act, because these gendered descriptors are not based upon the roles undertaken within the ‘biological process’ of conception. Instead, the roles played by both categories of legal parent are identical – these are births involving donor sperm and legal parenthood is based upon consent and the relationship with the ‘mother’. Thus, it is difficult to understand the purpose of these gendered descriptors in this context, or any justification for their continued use. However, I am not arguing that trans parents should be registered using different gendered terminology depending upon the reproductive role they perform in cases of assisted reproduction under the 2008 Act,¹⁸⁵ but rather that this shows the problematic implications of McConnell when applied to other contexts. The President's reasoning assumes a connection between the gendered descriptor and a role ‘in the biological process of conception, pregnancy and birth’¹⁸⁶ that only applies to the legal ‘mother’ and is not generalisable across legal parenthood. Legal fatherhood is determined by various factors depending upon the circumstances and is not solely based upon a ‘biological’ role. Given this existing reliance upon different factors in different contexts, I argue that it is conceptually unclear why a trans man cannot become a legal ‘father’ through giving birth.

I am not arguing that female same-sex couples provide a direct parallel or comparison with trans parenthood, but instead that the significance of the parenthood provisions is that legal parenthood at birth is no longer purely gendered, illustrating the concept's flexibility. I argue that this context, where legal parenthood is explicitly separated from genetics and biology, and where the legal regime employs de-gendered language for some parents, starkly illustrates how the decisions regarding trans legal parenthood are not reflective of the flexibility within legal parenthood. The Court of Appeal in McConnell argued that: ‘it cannot simply be a question of this Court substituting a word such as “parent” for the word “mother”. This is because the word “parent” has a distinct meaning which has been given to it by Parliament in other legislation’.¹⁸⁷ I do not dispute that the judgment is correct that the appropriate constitutional boundaries of the judicial role meant that such direct substitution was not open to the court.¹⁸⁸ However, the option of making a ‘declaration of incompatibility’, under section 4 of the 1998 Act, was available to the court and was not taken.¹⁸⁹ Therefore, I accept that legislative reform will be required to recognise trans legal parenthood congruently with trans identities. However, I argue that acknowledging this need for legislative reform represents a very different argument from the apparent suggestion in the judgment that the meaning of ‘parent’ in other legislative contexts precludes the use of such language to describe trans legal parenthood. As noted above, each legislative context is different, and the concept of legal parenthood is flexible. My argument here is not that the 2008 Act's descriptor ‘a parent’ should necessarily be adopted for trans legal parenthood, although such an approach would be preferable to the existing judicial decisions, and would have been acceptable to Mr McConnell.¹⁹⁰ Instead, I argue that the provision made by the law to account for the circumstances of female same-sex couples who use assisted reproduction shows that the concept of legal parenthood is capable of flexibly and pragmatically responding to parenthood formed in different ways,¹⁹¹ and that this flexibility should comfortably allow for the recognition of the specific circumstances of trans legal parenthood using appropriate gendered descriptors. Ultimately, I argue that the gendered descriptors of legal parenthood do not possess the normative or substantive significance that the judgments considering trans legal parenthood appear to imply they possess. Thus, the existing concept of legal parenthood should be capable of describing JK (and others in her position) as ‘mother’ and Mr McConnell (and others in his position) as ‘father’ without challenging the understanding of legal parenthood.

Conclusion

This paper has considered trans legal parenthood in the UK after the McConnell ¹⁹² case. As described above, trans identities have become an increasingly contentious arena of social, political and legal discourse. This paper's discussion of trans legal parenthood does not exist in a vacuum from this contemporary social and political context, and the judicial approach reflects that the recognition of trans identities through the Gender Recognition Act 2004 remains partial, rather than complete.¹⁹³ In opposition to this, the law has increasingly recognised parenthood arising in various novel familial and reproductive contexts. The law's attempts to accommodate new family forms within its existing regime and its dominant understandings of parenthood is an ongoing process.¹⁹⁴ These questions have been the focus of academic critique for some time,¹⁹⁵ and the pace of change means that the law will be continually reacting to new family forms. Trans legal parenthood is situated within both of these overarching contexts, which do not necessarily converge, but nor does either context fully explain the understanding of trans legal parenthood. Nonetheless, this paper has shown that trans parenthood provides another example of the problems caused by the continuing reliance upon the binary, two-parent model of the traditional, heterosexual, cis, nuclear family within the understanding of legal parenthood.

In this paper, I have argued that legal parenthood lacks inherent normative content, that the concept has evolved to accommodate parenthood in various circumstances, and that the concept can continue to evolve in response to subsequent developments. However, this paper accepts that the judiciary are constrained by their understanding of the boundaries of their constitutional role,¹⁹⁶ and their belief that trans parenthood is an area ‘of difficult or controversial social policy’¹⁹⁷ limiting recourse to a ‘declaration of incompatibility’ under the 1998 Act.¹⁹⁸ Consequently, legislative reform represents the only solution to address the issues raised by trans legal parenthood. I have previously observed that ‘there is a clear need for Parliament to legislate to address these issues for trans parents and to provide a comprehensive model of legal parenthood and birth registration that reflects the reality of 21^st century family life’.¹⁹⁹ Despite the obvious difficulties, and apparent unlikelihood, of such legislative reform being initiated due to the contemporary social and political discourse concerning trans identities, the pressing need for reform is echoed here. As Davis has previously commented ‘[t]rans families…should be recognized as per their social reality without having to jump through various legal hoops or societal interrogation, which would inevitably aid all families in combatting rigid norms about any “right” way to exist’.²⁰⁰ In this paper, I have argued that recognition of trans parenthood should be possible within the existing understanding of legal parenthood, a flexible and pragmatic concept that has evolved in response to different family forms and reproductive practices. I have sought to illustrate why accommodating trans parenthood and describing trans parents congruently with their identity – whether degendered legal parenthood for all parents,²⁰¹ or gendered descriptors for trans legal parenthood that align with trans identities, or a system of registering legal parenthood that allows a choice of terminology for all parents – does not require any challenges to the underlying concept of legal parenthood. Therefore, I argue that legislative reforms addressing trans legal parenthood, regardless of the potential political and cultural controversy, should not be considered controversial in terms of their impact upon the concept of legal parenthood.