JK, R (on the application of) v The Secretary of State for the Home Department & Anor

The claimant, a transgender woman who had been the biological father of two children, challenged the requirement that she be recorded as "father" on their long-form birth certificates and the refusal of the Registrar General to record her as "parent" or "father/parent". The claim alleged breaches of article 8 (right to respect for private and family life) and article 14 (non-discrimination) of the European Convention on Human Rights, and sought re-registration or amendment of a child’s certificate to reflect the claimant’s acquired name and to avoid disclosure of her prior gender.

The court held that gender identity engages article 8 and that the registration requirement interfered with the private life of the claimant and potentially her children. However, having assessed proportionality and the legitimate aims (administrative coherence of the birth registration scheme, protection of others' rights including the child's interest in accurate records of parentage), the court found the interference justified. The Gender Recognition Act 2004 scheme, its parallel Gender Recognition Register and the statutory protection against disclosure of protected information (section 22) were material to that conclusion.

Accordingly, the claim was dismissed: the birth registration scheme which requires a person who was the biological father to be recorded as "father" remained compatible with articles 8 and 14.

Background and parties:

• The claimant, a male-to-female transgender woman (referred to as JK), is the biological father of two children (AK and PK) born during her marriage to KK. The claim was brought against the Registrar General and joined interested parties included the Secretary of State for the Home Department and the children (represented by the Official Solicitor).

Nature of the claim:

• The claimant sought declarations and remedies to allow her to be shown as "parent" or "father/parent" (and to have AK’s certificate amended to show the claimant’s new name) on the children’s birth certificates, asserting breaches of article 8 and article 14 ECHR.

Procedural posture:

• The claim was a first instance judicial review application in the Administrative Court. It was stayed pending the birth of the second child and later treated for some purposes as if the claimant had a full Gender Recognition Certificate once an Interim GRC had been issued; the hearing took place 11 December 2014 and judgment was given 20 April 2015. The Official Solicitor joined the children as interested parties and Professor Richard Green was instructed as a joint expert.

Issues framed:

• Whether the Registrar General’s practice and the statutory birth registration scheme engage article 8 and, if so, whether the requirement to record the claimant as "father" materially interferes with the right to private and family life;
• Whether any interference could be justified under article 8(2) and whether the measure amounted to unlawful discrimination under article 14 read with article 8;
• Whether the registrar had an unlawful or arbitrary discretion in applying the forms and headings in the registration regime.

Court’s reasoning (concise):

• The court accepted that gender identity is integral to private life and that article 8 is engaged. Recording a transgender parent in a way that reveals prior gender can interfere with privacy.
• On construction of the registration statutes and regulations, "father" and "parent" operate in mutually exclusive statutory contexts; "parent" in the birth registration form is limited by the Human Fertilisation and Embryology Act 2008 scheme to particular non-biological parentage scenarios. Where the claimant was the biological father, the statutory scheme required listing as "father"; there was not an unfettered discretion to substitute "parent".
• On proportionality, the court applied recent guidance on rigorous four-stage proportionality analysis. It accepted the Registrar General’s legitimate aims: administrative coherence, accuracy of registers as at birth, respect for the rights and interests of spouses and children (including a child’s interest in accurate recording of parentage), and protection of others from adverse consequences of retroactive changes. The State’s scheme, which includes the Gender Recognition Register and criminal sanctions on improper disclosure of protected information (section 22 GRA 2004), struck a fair balance in the court’s view and fell within the State’s margin of appreciation.
• The court emphasised the children’s best interests as a primary consideration; it noted competing risks (risk of stigma if a parent’s prior gender is disclosed versus possible harm in concealing parentage) and concluded the statutory scheme properly balances these competing rights.

Result: The claim was dismissed. The court found no breach of articles 8 or 14 in the Registrar General’s application of the birth registration scheme to the claimant’s children.

The claim is dismissed. The court held that although article 8 is engaged by the requirement that a transgender parent who was the biological father be recorded as "father" on a child’s long-form birth certificate, that interference is justified. The statutory birth registration scheme (including the Gender Recognition Act 2004 provisions and protections such as section 22) and the legitimate aims of administrative coherence and protection of others’ rights mean the scheme falls within the State’s margin of appreciation and is proportionate; there was no breach of articles 8 or 14.