The article deals with the recent judgment of the England and Wales High Court about the definition of the ‘mother’, those who come under the said definition and the repercussions of the same on the transgender community.
For the first time, in any case, a legal definition of ‘mother’ has been given under the common law. In the case of England and Wales, a transgender man was denied the right to be registered as a father on the birth certificate of his child. The court held that motherhood pertains to giving birth. The person giving birth may be a man or a woman that does not matter. The court heavily relied on the Gender Recognition Act, 2004. The case is majorly being criticized for violating the rights to choose and identity for transgender people. Even the judge said that the case is an issue of public policy rather than law.
The man named Freddy McConnell currently aged 32 had experienced gender dysphoria since childhood and realised that he was a trans at the age of 23. He was born a female but he had transitioned to the male gender after undergoing chest reshaping surgery. After that, in 2016 he wanted to get pregnant and thus his hormone treatment was suspended which left him destabilized and resulted in a restart of his menstrual cycle. He became pregnant in 2017 using the sperm from a donor and gave birth in 2018. After the birth of the child, he wanted to get himself registered as the father of the child but his claim was rejected despite him having a gender recognition certificate. Hence, he moved for a judicial review against the order of the Registrar General.
McConnell contended that recognizing him as a mother breaches his and the child’s right to respect their family and private life under the European Convention of Human Rights (ECHR). The Court rejected his contentions and held that being a ‘mother’ is a status afforded to the person who undergoes the physical and biological process of pregnancy and giving birth. Therefore, a person’s gender may be ‘male’ but their parental status because of the biological role will be that of ‘mother’.
McConnell’s journey has also been captured in a recent feature documentary titled ‘Seahorse’. It is a reference to the fish that gives birth through male pregnancies. It shows his entire journey about how he underwent pregnancy and the issues that he had to face. He even calls the process of giving birth as ‘wondrous’. It is very difficult for a person from the community to fight against the odds of society and do something for themselves. Transgender men who give birth have to already fight against social stigma. The judgement has become another impediment in their life. The court could have looked at the examples of Canada and Sweden where there are gender-neutral birth certificates.
The judgment has been highly criticized in the LGBTQI+ community and by the other LGBTQI+ advocates alike. Some have rightly termed the judgment as ‘deeply disappointing’ while the others have said that the judgment yet again shows that the laws are still not developed properly and also contradicts the little equality trans people currently have but the legal framework plays a major role in what society perceives to be a right. This is also in violation of human rights like the right to privacy protected under Article 12 of Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.
Even if something is new or different, people eventually get accustomed to that. Furthermore, the changes are required at the policy level. It is shocking to note that there is no treaty protecting the rights of transgender people. It was only in 2011 that a resolution was passed to focus on the human rights violations against transgender persons. Such lack of laws governing the gender identities itself shows how concerned the governments are regarding the rights of the community.
This piece has been contributed by Amrashaa Singh, a third-year student at National Law University Odisha.