McConnell & Anor, R (On the Application Of) v The Registrar General for England and Wales

Gender Recognition Act 2004, section 12, applies both before and after the issue of a gender recognition certificate. It preserves the status of a person as a child’s mother or father notwithstanding their acquired gender. A person who conceives, carries and gives birth to a child is therefore registered as that child’s mother, even if that person has a male acquired gender.

That requirement interferes with private and family life under Article 8, but the interference is justified. It protects children’s interests and maintains a coherent statutory scheme of parentage. The difficult policy choices involved fall within Parliament’s margin of judgement, and judicial substitution of new parental terminology would amount to legislation.

A transgender man with a full gender recognition certificate gave birth to YY after fertility treatment. The Registrar General required him to be entered on YY’s long-form birth certificate as YY’s mother, although in his current male name.

The President of the Family Division, sitting in the Administrative Court, refused judicial review and rejected the proposed declaration of incompatibility. In related Family Court proceedings, he declared that the first appellant was YY’s mother and had parental responsibility: [2019] EWHC 2384 (Fam).

The appellants appealed against both orders. The central issues were whether section 12 of the Gender Recognition Act 2004 was confined to children born before a certificate was issued and, if not, whether the resulting registration requirement was incompatible with Articles 8 and 14 of the Convention.

1. Appeals dismissed. Section 12 of the Gender Recognition Act 2004 has both retrospective and prospective effect. Its ordinary language is not confined to events before a gender recognition certificate. A contrary construction would make section 9(2) otiose, because that provision already addresses events occurring before the certificate.
2. Section 12 is an exception to the general effect of section 9(1). It preserves parental status by reference to the reproductive role undertaken in conception, pregnancy and birth. Accordingly, a person who gave birth to a child remains the child’s mother for this purpose, although that person has an acquired male gender. Construing “mother” as “father”, or substituting “parent” or “gestational parent”, would not be statutory interpretation.
3. The Explanatory Notes were admissible contextual material but could not alter the enacted words. Parliamentary materials were neither relied upon nor admissible under the relevant gateway. A Convention-compatibility challenge concerns the objective compatibility of legislation at the time of adjudication, not the adequacy of ministerial or civil-service consideration during the legislative process.
4. The registration requirement significantly interfered with the appellants’ Article 8 rights. It was nevertheless in accordance with law and pursued legitimate aims: protection of children’s rights, including knowledge of their origins, and a clear and coherent system of birth registration and parentage. Applying proportionality, the court held that the statutory scheme fairly balanced those interests with the appellants’ rights. The interlocking policy questions, including automatic parental responsibility for the person who gives birth, fell within Parliament’s margin of judgement.
5. There was no Strasbourg authority requiring the appellants’ proposed outcome and no European consensus. Article 14 added no separate issue because any difference in treatment was objectively justified. The court expressed no view on the lawfulness of the fertility treatment under the human fertilisation legislation.

• Court of Appeal (Civil Division): dismissed the appeals and upheld the requirement to register the first appellant as the child’s mother: [2020] EWCA Civ 559.
• High Court, Family Division and Administrative Court: the President refused judicial review and the proposed declaration of incompatibility, and declared in related proceedings that the first appellant was the child’s mother: [2019] EWHC 2384 (Fam).