30th Jun 2022

Transgender Parenthood: The Current Legal Position

By Rory Collett

Transgender Parenthood: The Current Legal Position

With Pride Month 2022 drawing to a close today, this blog by FLiP Associate Rory Collett will explore the current legal position in relation to parenthood within the transgender community.

The adult trans population in the United Kingdom equates to roughly between 200,000 and 500,000 people; 24% to 49% of whom are believed to be parents. With growing public awareness of this form of family unit and trans parents becoming increasingly more visible, it is vital to recognize that most issues trans parents face on a daily basis are problems facing every parent. However, in some instances and as demonstrated here, the law is still behind the curve with mainstreaming important developments and providing for families who do not conform to binary heteronormativity.

I use ‘trans’ as an umbrella term throughout this blog to describe all individuals who, in broad terms, cross the conventional boundaries of gender and whose gender identity does not correspond to the gender assigned to them at birth.

Will I still be Mum or Dad after I transition?

It is understandable that trans parents may want to better understand how a change in gender may affect their legal status as their child’s parent.

When an individual transitions to their acquired gender, the status of the individual as the father or mother of the child does not change – this is protected under Section 12 of the Gender Recognition Act. The person who carried the child, will still be legally recognized as the mother, even after they have acquired a different gender or have started to identify as non-binary.

The intention behind this is to protect the existing legal rights of parents who have children before they change legal gender and to ensure that the State retains a consistent birth registration scheme. Whilst this legal requirement does not reflect how the individual identifies within the family, nor is it any way an expression of a parent’s relationship with their child, it ensures that the parent does not lose any legal status and their parental responsibility is unaffected. In other words, a parent will remain the children’s legal father if they become female, or their mother if they become legally male.

It should also be noted that a parent cannot change their child’s birth certificate to include their revised name or to state that they should be listed as solely the ‘parent’ after they transition. The reason for this is that the law records parental status subject to how the individual became a parent, and it is based on the circumstances of the conception. A birth certificate, in other words, is not viewed as a living, evolving document, which can be regularly amended. Moreover, the courts tell us that a birth certificate is not a public record and would only be shown to people who are precluded from discussing gender publicly. Consequently, the advantage of changing a birth certificate in these instances is, currently, in the eyes of the law, unbeneficial.

This has caused some consternation amongst the trans community, but this is a relatively new area of law which we can expect to continue to evolve in the future.

I am transgender, can I become a Mum or a Dad?

With widespread recognition that post-gender transition parenting can lead to well-adjusted and very happy children, it is important for trans parents to understand the legal position for conceiving after having transitioned. The registration of children after birth is often a momentous event for parents, but it can be challenging for transgender parents who wish to avoid any gendered binary presumptions.

An individual who transitions from female to male may well maintain the biological ability to conceive and give birth to a child. However, recent case law has highlighted difficulties for new trans parents, as one such parent was recently denied the chance to register his child’s birth as a ‘father’ on the birth certificate after he had given birth. This is significant for trans parents who may wish to conceive children and be registered on the birth certificate in accordance with their gender as per their Gender Recognition Certificate.

A further case which has recently made its way through the court system involved a transgender male, who gave birth to a child as a result of IUI fertility treatment with his own eggs. The court found that it was possible for an individual who is legally male to give birth to a child. However, due to carrying the child, the court found that the legal parental status of this individual should be defined as the ‘mother’.

Moreover, if a surrogate carries the child on behalf of trans parents, she is treated as the legal mother. A soon-to-be trans parent will need to apply for a Parental Order to reassign parenthood and parental responsibility to them once the child is born. This is the case, even if the surrogate is not the biological mother and is also the norm with heterosexual couples. Furthermore, if the surrogate is married or in a civil partnership, her spouse is legally the father or the ‘other’ legal parent, and this will not be fully extinguished until the Parental Order has been applied for. The application for a Parental Order in relation to surrogacy will also lead to the birth certificate being reissued in the name of the trans parent, and it will record the trans parent with the gender-neutral parental title of ‘parent’.

One, final, consideration for all new transgender parents is to consider openly discussing with their children how they were born and the experience of transitioning as a parent. The decision to be proactive and talk with children from a young age, might help to ensure that the child will always remember being part of a transgender family and will feel connected to their history. When explained simply and in an age-appropriate manner, this will become part of the child’s background and identity and will ensure that the child feels confident when talking and answering questions about such topics, both inside and outside of the family unit.

To conclude, there are plenty of legal issues for the trans population to consider, both when starting a family or when they already have children and are commencing their journey towards transition. It is of the utmost importance for many trans parents to safeguard the legal relationship with their children, and, as demonstrated here, the courts are still very much trying to feel their way forward in developing this area of law.

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