Before we start, however, we must get the terminology surrounding gender identity correct.
Gender Identity Terminology
• Cisgender – When your assigned sex at birth matches your gender identity.
• Transgender – When your assigned sex at birth doesn’t match your gender identity.
• Non-binary – When you don’t wholly identify with male or female genders – regardless of biological sex.
• Trans man – A man who was assigned female a birth but now identifies as male (avoid FTM).
• Trans woman – A woman who was assigned male at birth but now identifies as female (avoid MTF).
• Transition – The period when a trans or non-binary person, socially, medically, and/or legally, begins living according to their gender identity.
What Is The Meaning Of LGBTQIA+?
In short, LGBTQIA+ is an acronym that stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, and the + holds space for the expanding understanding of different parts of the diverse gender and sexual identities.
History Of Transgender Cases In Family Law
Cases concerning transgender parents most commonly occur in private law proceedings. It may be that one parent has undergone a transition, or simply that there is a dispute concerning contact. This is a relatively new area of law, as it presents new challenges to preconceived ideas on the generic view of the ‘family’.
One of the key cases in this area is J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4
The case was before Peter Jackson J (as he then was), and the matter concerned an Orthodox Jewish family, whereby Father transitioned (trans woman) and left the community. Father then sought contact with the children.
The first Judge determined – ”So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalized or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.”
This case then went to appeal. The appeal, was referred to as Re M (Children) [2017] EWCA Civ 2164. The father successfully appealed to the Court of Appeal and the Court concluded, inter alia, that the trial judge “gave up too easily”. It was determined that the judge’s function is to act as the ‘judicial reasonable parent’; The judge has a positive duty to attempt to promote contact and must consider all available alternatives; Contact must be stopped only as a last resort and once it is clear that the child will not benefit from continued efforts.
The final hearing was heard by Mr Justice Hayden, under the reference A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2020] EWFC 3 (20 January 2020) –
9. The father does not pursue her application now. She recognises that it would be not only counter-productive to pursue it, but emotionally harmful. The Guardian considers this to be a shaft of insight into the children’s needs and a very powerful contribution to their future well-being and stability.
10. This case presented important issues of public interest. Mr Farmer, on behalf of the press, argues that the public is entitled to know, in outline form at least, the outcome of the proceedings. The parallel analysis of the competing Article 8 and 10 rights, in the context of Article 9, all point to the correctness of that argument. All the advocates before me have agreed to such a course.
11. In delivering this short, ex tempore judgment, I am intending to bring closure to this difficult and challenging case, in the hope that this courageous family may move forward without the added burden of public comment. I have also made specific orders restricting the father’s campaign on social media. It must be highlighted that she has submitted these orders without any opposition.
Another key case in this area is the case of R (on the application of TT) v Registrar General for England & Wales [2019] EWHC 2384 (Fam).
In this matter, the applicant trans man, had had intra-uterine insemination with donor sperm. He became pregnant and gave birth to a child. He wished to register as the child’s father, or as its “parent”. The registrar general believed that he had to be registered as the child’s mother.
The matter was considered by the President of the Family Division, Sir Andrew McFarlane, who examined the definition of parent.
“… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.”
Ultimately, based on the above, there is still a long way for the law to go. However, it is clear, that steps are being taken in the right direction. For the law to become more progressive, all parents need to feel confident and comfortable, in pursuing their parental rights. The notion of family is ever-changing, and every child needs their family.
How Can Family Lawyers Support Transgender Parents?
Whatever the circumstance behind your family, it is important you take specialist family law advice concerning your rights as a parent, or as a person heavily involved in a child’s life.
As family lawyers, we can consider the circumstances of your family, and advise on parental responsibility, along with the most appropriate application to make, in the event agreements concerning contact or decisions in the child’s life, cannot be agreed upon. In certain circumstances, we may need to seek permission in the first instance, however, this is again very case-dependent.
It is important to note, however, that unless you meet one of the exemptions, mediation is a prerequisite to most children’s applications. As family lawyers, and as a part of the resolution, we will encourage you, and guide you to reach a resolution which is best for you and your family, putting the child at the forefront of any decision-making, as our paramount consideration.
If you, as part parent or as part of a child’s family, can make a joint decision, with the other family member, this will always be preferable to a court application. Children benefit from family members who can set aside their differences and work together.
Whilst this isn’t always possible, we as family lawyers will do our best to preserve, and sometimes rebuild, your relationship as family members.
How We Can Help
At Harding Evans, our solicitors have undertaken specialist training on the rights of transgender parents in family law.
If you need advice in this area, please contact us to arrange an appointment.
