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Kenya Law / Blog / Case Summary: The parental status of ‘mother’ is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth irrespective of their legal gender

The parental status of ‘mother’ is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth irrespective of their legal gender

The Queen (on the application of TT) v Registrar General for England and Wales; Secretary of State for Health and Social Care & 3 others (Interested Parties)

Case No FD18F00035

High Court of Justice

Family Division and the Administrative Court

A McFarlane, J & P

September 25, 2019

Reported by Faith Wanjiku

Download the Decision

Constitutional Law- fundamental rights and freedoms – rights of a child – best interests – what was the scope of a child’s best interests?

Health Law -reproductive health law-parenthood-mother-where a person with a different legal gender carried a pregnancy and gave birth to a child -whether the term ‘mother’ was exclusively female or whether it was a free-standing term which, in the context of a birth applied to the person who carried a pregnancy and gave birth to a child, irrespective of their legal gender-Gender Recognition Act 2004,section 12; Human Fertilisation and Embryology Act 2008, section 33

Gender Law-gender identity-trans-males-what was the status of a trans-male who had become pregnant and given birth to a child-Gender Recognition Act 2004, section 12

International law-international human rights-rights to respect for private and family life and non-discrimination-where a trans-male who had given birth was registered as the mother of the child-whether the court could issue a declaration of incompatibility in relation to the alleged breach of the rights-whether failure to be registered as the son’s father, breached the claimant’s and his son’s rights of respect for private and family life and non-discrimination under European Convention on Human Rights to the extent that the court should issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 -European Convention on Human Rights, 1950, articles 8 and 14; Human Rights Act 1998, section 4

Brief Facts

The claimant (TT) had been registered as female at birth but transitioned to live in the male gender at the age of twenty two years. He began medical transition with testosterone therapy in 2013, and in 2014, he underwent a double mastectomy. His passport and NHS records were amended to show his gender as male. In September 2016 the claimant, under medical guidance, suspended testosterone treatment and later commenced fertility treatment in England and Wales at a clinic which was registered for the provision of such treatment. The aim of the treatment was to achieve the fertilisation of one or more of the claimant’s eggs in his womb.

A certificate confirming his gender as male was issued on April 11, 2017. On April 21, 2017, the claimant underwent intrauterine insemination (IUI) fertility treatment at the clinic during which donor sperm was placed inside his uterus. The process was successful and conception occurred with the result that the claimant, a registered male, became pregnant. The claimant carried the pregnancy to full-term and, in January 2018, he gave birth to a son, (YY).

The issue in the proceedings related to the registration of the claimant’s son’s birth. Upon communication with the Registry Office, the claimant was informed that he would have to be registered as the child’s ‘mother’, although the registration could be in his current (male) name. The claimant wished to be registered as ‘father’ or, if not ‘father’, then ‘parent’ and thus on April 3, 2018 he brought a claim in judicial review to quash the decision of the Registrar General. The claimant also contended that that outcome represented a breach of his and the son’s rights under the European Convention on Human Rights (ECHR) to the extent that the court should issue a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Issues

i Whether the term ‘mother’ was exclusively female or whether it was a free-standing term which, in the context of a birth applied to the person who carried a pregnancy and gave birth to a child, irrespective of their legal gender.

ii What was the status of a trans-male who had become pregnant and given birth to a child?

iii What was the scope of thebest interests a child?

iv Whether failure to be registered as the son’s father, breached the claimant’s and his son’s rights of respect for private and family life and non-discrimination under ECHR to the extent that the court should issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 (the 1998 Act) Relevant Provisions of the Law

European Convention on Human Rights, 1950

Article 8- right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14-prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Gender Recognition Act, 2004

Section 1-Applications

(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—

(a) living in the other gender, or

(b) having changed gender under the law of a country or territory outside the United Kingdom.

(2) In this Act “the acquired gender”, in relation to a person by whom an application under subsection (1) is or has been made, means—

(a) in the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or

(b) in the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law of the country or territory concerned.

(3) An application under subsection (1) is to be determined by a Gender Recognition Panel.

Section 9 – General

(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).

Section 12 – Parenthood

The 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.

Human Fertilisation and Embryology Act, 2008

Section 33 – Meaning of “mother”

(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

Held

  1. At common law a person whose egg was inseminated in their womb and who then became pregnant and gave birth to a child was that child’s ‘mother’; The status of being a ‘mother’ arose from the role that a person had undertaken in the biological process of conception, pregnancy and birth. Being a ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child was not necessarily gender specific, although until recent decades it invariably was so. It was 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. Gender Recognition Act 2004 (GRA 2004), section 12 on parenthood could be both retrospective and prospective. If that was so then the status of a person as the father or mother of a child was not affected by the acquisition of gender under the GRA 2004, even where the relevant birth had taken place after the issue of a gender recognition (GR) certificate.
  2. Article 3(1) of the United Nations Convention of the Rights of a Child (UNCRC) on the best interests of the child being a primary consideration was a binding obligation in international law, and the spirit, if not the precise language, had also been translated into the national law. Section 11 of the Children Act 2004 placed a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.When a child’s article 8 rights on respect for private and family life under ECHR were engaged, they had to be looked at through the prism of UNCRC, article 3(1) on the rights of a child, so that article 8 had to be interpreted in such a way that children’s best interests were a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration.
  3. A child’s best interests was a threefold concept:
      1. (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests were being considered in order to reach a decision on the issue at stake, and the guarantee that the right would be implemented whenever a decision was to be made concerning a child, a group of identified or unidentified children or children in general.
      2. (b) A fundamental, interpretative legal principle: If a legal provision was open to more than one interpretation, the interpretation which most effectively served the child’s best interests should be chosen. The rights enshrined in UNCRC and its Optional Protocols provided the framework for interpretation.
      3. (c) A rule of procedure: Whenever a decision was to be made that would affect a specific child, an identified group of children or children in general, the decision-making process had to include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child required procedural guarantees. The justification of a decision had to show that the right had been explicitly taken into account. In that regard, States parties would explain how the right had been respected in the decision, that was, what had been considered to be in the child’s best interests; what criteria it was based on; and how the child’s interests had been weighed against other considerations, be they broad issues of policy or individual cases.
  4. Although the object of article 8 of ECHR was essentially that of protecting the individual against arbitrary interference by the public authorities, it did not merely compel the State to abstain from such interference: in addition to that primarily negative undertaking, there could be positive obligations inherent in an effective respect for private life. Those obligations could involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under article 8 of ECHR did not lend themselves to precise definition. The applicable principles were nonetheless similar. In particular, in both instances regard had to be had to the fair balance which had to be struck between the competing interests, and in both contexts the State enjoyed a certain margin of appreciation.
  5. The very essence of ECHR was respect for human dignity and human freedom. Under its article 8 in particular, where the notion of personal autonomy was an important principle underlying the interpretation of its guarantees, protection was given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings. In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society could not be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. The unsatisfactory situation in which post-operative transsexuals lived in an intermediate zone as not quite one gender or the other was no longer sustainable.
  6. If an event occurred where the claimant’s son’s full birth certificate had to be produced, that was very likely to be an occasion of exquisite embarrassment and confusion for both parent and child. More than that, even if such an occasion never arose, the fact that it might arise was a legitimate cause for significant anxiety and distress on the part of the claimant, and probably his son when he was older, to the extent that that on its own was an interference with their right to respect for private and family life. The focus of consideration therefore moved to whether insistence on registration as ‘mother’ was necessary, that was to say, was it proportionate to a pressing social need and did it strike a fair balance between the needs of society and the rights of others set against the admitted interference with the claimant’s and his son’s article 8 rights under ECHR?
  7. The starting point in measuring proportionality was to evaluate the importance of the rights that were the subject of interference. In approaching the issue of proportionality, a weight of a high order had to therefore attach to those rights for both the claimant and his son, such as to require clear and substantial grounds before it could be said that any interference was justified and proportionate. In assessing proportionality with respect to the claimant’s son’s article 8 rights, the position was more complicated as there were other aspects of article 8 which could themselves, in part, pull in the other direction and point towards justification. Firstly, there was the right of a child to establish the substance of his or her identity. A core element of that right had to normally include the right to know who gave birth to them. The developing case law of the European Court on Human Rights (ECtHR) also indicated that, not only was a child’s right to know their origins acknowledged, but it was also growing in importance when set against the rights of a mother who could be insistent on remaining anonymous.
  8. In the present case the outcome sought by the claimant meant that his son would not have, and would never have had, a ‘mother’ as a matter of law, he would only have a father.Although there was no extant ECtHR authority on that point, the outcome, which, at present, would mark the claimant’s son out from all other children under UK law, had to be seen as a detriment and contrary to a child’s best interests.
  9. The best interests of the child had to be a primary consideration in the overall ECHR evaluation. It was not argued that the claimant’s son was in any special category that would make his circumstances in that regard different from the general cohort of children born to a transgender male. The issue had to be looked at, therefore, in general, high level and non-case specific terms. The approach to ‘best interests’ in the evaluation had to be based on matters of principle rather than factual, case-specific, detail. When considering ‘best interests’ the fact that the court was considering the scheme as a whole affected the extent to which it was possible to determine the best interests of children in general.
  10. In establishing the scheme of registration, and in holding by GRA 2004, section 12 that the fact that a person’s gender had become the acquired gender following the issue of a GR certificate did not affect the status of the person as the father or mother of a child. Parliament had made a social and political judgment as to how the competing interests should be accommodated. In doing so, it had afforded priority to the need for clarity as to parental status. There were sound child-focused reasons in favour of striking the balance in that way. The fact that it was possible to identify other factors which might, in particular cases, be to the detriment of a child, did not mean that the outcome promoted by Parliament was not in the best interests of children or that their best interests had not been a primary consideration in striking the policy balance as it had been struck.
  11. The human existence was marked by birth at the first moment of life, and death at the last. The importance of a modern society having a reliable and consistent system of registration of each of these two events was clear. In terms of birth registration, the birth was the event that was subject of record and a birth occurred when a baby was born to the parent who had carried him or her during pregnancy. The aim of the UK birth registration scheme in requiring the identity of the person who gave birth to a child to be recorded as such was, therefore, entirely legitimate and of a high order of importance in the context of social policy. In almost all the countries within the Council of Europe a trans-man who gave birth would be registered as the ‘mother’.
  12. The number of occasions when a full birth certificate could be produced and the claimant’s status as his son’s mother, and therefore the fact that he was transgender, would be disclosed, would be small. The adverse impact upon the claimant, significant though it would be were it to occur, was very substantially outweighed by the interests of third parties and society at large in the operation of a coherent registration scheme which reliably and consistently recorded the person who gave birth on every occasion as ‘mother’. Despite the admitted interference with the article 8 rights of ECHR of the claimant and his son, such interference was justified as being in accordance with the law, for a legitimate purpose and otherwise necessary, proportionate and fair.
  13. In the context of article 14 of ECHR, a registration scheme that required each and every person who gave birth to be registered as the child’s mother did not discriminate between or against any one group or another. Examples were given in submissions of other same sex or transgender parents who were registered in specific ways, but none of those examples related to the registration of the person who had given birth. It was that feature, and the need to register that crucial piece of information, that marked registration of the ‘mother’ out from other categories of parental relationship.
  14. The case under article 14 of the ECHR was, in reality, an assertion that the GRA 2004 should have made an exception from the universal requirement to register as ‘mother’ for transgender males following the grant of a GR certificate and that, by stipulating that a GR certificate did not affect the status of a parent as ‘mother’, section 12 of GRA was discriminating against the claimant and those in like circumstances. Looked at in that way, the claim was untenable in terms of article 14 of ECHR. There was no breach of article 14. The application for a declaration of incompatibility failed.
  15. There was a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, was the status afforded to a person who underwent the physical and biological process of carrying a pregnancy and giving birth. It was now medically and legally possible for an individual, whose gender was recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender was ‘male’, their parental status, which derived from their biological role in giving birth, was that of ‘mother’.
  16. The impact of the UK legislative scheme on the claimant and his son, whilst interfering with the right to respect that they each had in relation to private and family life, was justified in ECHR terms with the consequence that there was no breach of article 8 in relation to either parent or child. There was no separate breach under article 14 in either case. In law the claimant was his son’s ‘mother’ for the purposes of the registration of the son’s birth under the Births and Death Registration Act 1953.

Application for judicial review dismissed.

Orders:

i A Declaration of Parentage under Family Law Act 1986, section 55A would be issued confirming that the claimant was his son’s mother.

ii As his son’s mother, the claimant would automatically have parental responsibility for his son under Children Act 1989, section 2(2)(a).

Relevance to the Kenyan Situation

Kenya does not have a statute similar to the Gender Recognition Act of the UK on application for a gender recognition certificate. Neither has it developed laws specific to LGBTIQ persons and specifically transgenders as is the case in the UK jurisdiction.

That’s not to say the Courts have not been apt in addressing this problem as need arises. As far as gender recognition goes, there have been cases of intersex persons and how to register their sexes. In Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others [2014] eKLR, the petitioner was born with both male and female genitalia and a Lab Report had a question mark in the column indicating the Petitioner’s gender.The petitioner alleged that thatoffended the petitioner’s rights to legal recognition, human dignity and freedom from inhuman and degrading treatment. The court held that there was an obvious lack of guidelines and regulations, in the case of intersex children, on how medical examinations and eventual corrective surgery, if needed, would be carried out.

In Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others [2014] eKLR, the applicant, Transgender Education and Advocacy, an NGO formed with the aim and objective of advocating for human rights and preventing stigma facing transsexual people in Kenya and sought for an order of mandamus to compel the 1st respondent (The NGO Co-ordination Board) to register the applicant as an NGO.The court held that to discriminate persons and deny them freedom of association on the basis of gender or sex was clearly unconstitutional and contravened the provisions of article 27(4) of the Constitution of Kenya, 2010. The 1st respondent was thus ordered to register the applicant.

In Republic v Kenya National Examinations Council & another Ex-Parte Audrey Mbugua Ithibu [2014] eKLR, the applicant was diagnosed and treated for gender identity disorder (G.I.D) and depression at Mathari hospital and was still undergoing treatment for the two conditions. The applicant then changed his name from Andrew Mbugua Ithibu to Audrey Mbugua Ihtibu. Thereafter he embarked on changing the particulars on his national identity card, passport and academic papers so as to reflect his gender from male to female. Specifically in the instant matter, the applicant sought the removal of the gender mark from his KCSE certificate so that the certificate did not have any gender mark. The court held that the imposition of a candidate’s gender mark was not a requirement of the law under rule 9 of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009. A KCSE certificate was complete without a gender mark. Examinations and marks in Kenya were not administered based on the gender of the candidate. Removal of the gender mark could not therefore dilute the quality of the certificate.

As seen above, Kenya still has a long way to go before its laws fully identify with transgender persons. Given that these are emerging issues, the UK judgment therefore acts as a judicial precedent in common law when deciding on matters relating to transgender persons.

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