MODERN FAMILIES: Transgender identities in family law

In the 2021 census (the most recent available), 45.7 million people (around 94% of the UK population aged 16 years and over) answered the question “is the gender you identify with the same as your sex registered at birth?”. Some 93.5% answered yes, 2.9 million (6%) didn’t answer, and 262,000 people (0.5%) answered no.

People who identify as transgender, therefore, make up only a very small number of the UK population, yet the issues that can impact them within a family law context are wide ranging and often hotly contested. The public discourse itself remains heated and is often described as “toxic”. As family lawyers we must be alive to how these issues can impact our cases so that we can advise our clients in a sensitive and informed manner.

The law

The Gender Recognition Act 2004 (GRA 2004) came into force on 4 April 2004 and introduced Gender Recognition Certificates (GRCs). It was preceded by two significant decisions of the European Court of Human Rights against the UK: Goodwin v the UK (Application No 289574/95) [2002] 2 FLR 487 and I v the UK (Application No 25680/94) [2002] 2 FLR 518, which found that existing domestic law breached Articles 8 (right to private and family life) and 12 (right to marry) of the ECHR as it denied transgender persons the right to change their birth registration to record their reassigned gender and denied them the right to marry a person of the opposite sex in their reassigned gender.

Trans people had already been able to change their gender on their passport and driving licence without having a GRC, but a GRC allowed them to amend their birth certificate as well.

An application for a GRC is made under section 1 of the GRA 2004 (note that there is no power to issue a GRC to a non-binary person ). The applicant must be 18 years of age or older and:

• have or have had gender dysphoria (verified with medical evidence),
• have lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
• intend to continue to live in the acquired gender until death.

If the applicant is married or in a civil partnership, the spouse or civil partner must confirm their consent to the marriage or civil partnership continuing after the issue of the full GRC. If they do not consent, that must be declared. If there is consent, the Gender Recognition Panel must give notice to the spouse or civil partner once the application is made. Once the GRC has been granted, a new marriage certificate will be issued. If the spouse does not consent, the person transitioning will have to end the marriage before they can apply for a full GRC and will only be granted an interim GRC until the marriage has ended. Issues regarding financial provision and regarding any children will be dealt with in the usual way by the family courts.

The Equality Act 2010

The Equality Act 2010 (EA 2010) was designed to protect minority groups (those with protected characteristics) from being treated unfairly by discrimination. Gender reassignment is one of the protected characteristics under section 7 of the EA 2010. The definition is somebody: “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

“Proposing to undergo” can cover a person at any stage in the process of transition. It does not need to be medicalised and the person does not have to have actually made the decision to transition to be protected.

In 2020 the Employment Tribunal suggested that gender fluidity may be covered by the provisions of the EA 2010 (Taylor and Jaguar Land Rover Case No 1304471/2018).

In January 2023 (in AA & ors v NHS Commissioning Board Case No CO/4311/2021) the Administrative Court addressed the application of section 7 to children stating that there is: “no reason of principle why a child could not satisfy the definition in Section 7 provided they have taken a settled decision to adopt some aspect of the identity of the other gender”, whilst also emphasising that the definition of gender reassignment does not require medical intervention and can include actions such as changing “one’s name and/or how one dresses, or wears one’s hair, or speaks, or acts”. In order to acquire protection under the EA a person can simply choose to live in the acquired gender regardless of whether they have a GRC.

The protection of the EA 2010 extends to family members and friends of a person with a protected characteristic and not just that person themselves.

Parents who transition later in life after having children

Some of the first cases to grapple with the question of gender involved parents who later transitioned after having children, and the issues involved whether and when to tell their children of their transition and whether there should be contact.

The issue of whether a transgender father could see their children was considered in the case of J v B (Ultra-Orthodox Judaism Transgender) [2017] EWFC 4, heard by Peter Jackson J (as he then was). The case involved five children (aged 12, twins aged 8, 5 and 2) who were brought up in the North Manchester Charedi Jewish community. The father (F) left the marriage and the community in June 2015 to live as a transgender woman and had had no contact with the children following leaving. F wanted to be sensitively reintroduced to the children and for them to be helped to understand the new way of life for F and that the opposition from the Charedi community should be faced down. M opposed direct contact because it would lead to her and the children being ostracised by the community to such an extent that they would have to leave.

Jackson J identified 15 “formidable” arguments in favour of direct contact with F and only two arguments against contact, namely F’s dependability and the community’s reaction to direct contact. In relation to F’s dependability, he said that if this were the only obstacle to contact it could probably be overcome. The central question was the reaction of the community. Having considered the evidence he concluded:

“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 marginalised 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.”

He therefore refused F’s application for direct contact and ordered indirect contact four times a year and a 12-month Family Assistance Order.

F appealed and that case is reported as Re M (Children) [2017] EWCA Civ 2164. F succeeded on all three grounds of appeal.

Munby P, giving the lead judgment, held that Jackson J had given up too easily and the best interests of the children were served by them having more contact with F. The courts must persevere and “never say never”. However, despite this success and trying to arrange contact, in 2020 F withdrew the application.

Issues with the UK birth registration system for trans parents

The first case to address the issue of the UK’s birth registration system for a trans parent was the case of R (JK) [2015] EWHC 990 (Admin). JK transitioned from male to female in between the births of her two children. JK was named as the father on both their birth certificates, in her “deadname” on child one’s and her new name on child two’s. She sought to challenge the lawfulness of the UK’s birth registration system by judicial review, arguing that the requirement to be named as the father breached both her and the children’s Article 8 and 14 (protection from discrimination) rights.

The court dismissed the application, finding that the UK had a relatively large margin of appreciation to produce a birth registration scheme that properly reflected the choice of trans people to live in a different gender. The UK’s scheme was held to be well within that margin of appreciation and the state was entitled to conclude that the interference with the Article 8 rights of people in JK’s position was outweighed by the interference with the rights and interests of others that would be caused by not having such a system.

The court also had to conduct a balancing act in respect of the alleged breach of the children’s Article 8 rights, in that there was a right to protect their privacy by not disclosing their parent’s trans status, but also the right to know their own identity, and have their birth certificate reflect the “true” position at birth.

The court recognised that Article 14 applied as trans people are a group of protected individuals, but it added nothing of substance to the Article 8 claim and both were dismissed.

The court was keen to emphasise that whilst a primary consideration would be the best interests of the children, this was a judicial review and the fact that her children’s interests might be best served by altering the birth certificates, did not make the scheme unlawful. The scheme could favour these children but damage the interests of others.

We then had the 2018 case of R (TT) [2019] EWHC 1823 (Admin), involving a transgender male who had conceived using his own eggs and a sperm donor through a UK licensed clinic and who gave birth. Prior to insemination, TT had obtained a GRC, yet the Registrar General insisted on registering him as the mother on the child’s birth certificate. TT sought a judicial review of that decision and a declaration that he was the father of the child.

The central issue in this case was whether the registrar had discretion to register him as a father (ie as with same-sex cases), and if not was it a breach of his and/or the child’s Article 8 and Article 14 rights? A guardian was appointed to represent the child, and supported TT’s application for a declaration on the basis that the child would be likely to face confusion and social stigma if the birth certificate did not reflect the true family position.

The President of the Family Division conducted a thorough analysis in coming to his determination. He identified that the common law position is that a person whose egg was inseminated in their womb and who then became pregnant and gave birth to a child was known as the child’s mother. He found that being a father or mother was not necessarily gender specific although until recent decades it invariably was. He acknowledged the careful legal, social and psychological consequences for children born to transgender parents and the changing landscape on gender identity and legal parentage, particularly in relation to a wider public policy debate on children born to trans parents.

He went on to note that, within the context of certain fertility methods, the law had begun to distinguish between genetic mother and the carrying or gestational mother and so there was some movement towards recognising the development in modern society. He stated that: “there would seem to be a pressing need for government and parliament to address square on the question of the status of a trans male who has become pregnant and given birth to a child”.

In April 2020 the Court of Appeal considered the matter further on Mr McConnell’s application (his identity having been revealed following the earlier lifting of the reporting restrictions), in R (Alfred McConnell) [2020] EWCA Civ 559. The Court of Appeal looked in detail at section 9(1) of the GRA 2004, which states that once a full GRC is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, subject to certain exceptions, set out in section 12. The relevant exception in this case being that a person will retain their original status as either father or mother of a child, despite being legally regarded in their acquired gender. At first instance, the President found that the exception in section 12 was both retrospective and prospective, and the Court of Appeal was therefore required to consider the interpretation of these sections in detail, before considering their compatibility.

In interpreting sections 9 and 12 together, they rejected Mr McConnell’s challenge and upheld the decision that s12 was both retrospective and prospective in effect and concluded that the correct literal interpretation of section 12 was that Mr McConnell had to be registered as the mother.

The Court of Appeal then went on to consider the compatibility of s9 and s12 with Articles 8 and Article 14 of the ECHR. They accepted that there was an interference with Mr McConnell’s Article 8 rights by virtue of the section 12 exception to the general principal in section 9(1), but that it was justified as it accorded with the law and the legitimate aims of maintaining a coherent birth registration system scheme and protecting the rights of others.

The judges noted that many interlinked pieces of legislation would be affected if the word “mother” would no longer be used to describe the person who gave birth to a child. For example, they discussed section 2(2A) of the Children Act 1989 which gave the mother of a child automatic parental responsibility from the moment of birth – nobody else, not even a father, was entitled to that automatic PR.

They rejected the submission that it could simply substitute the word parent for mother on the basis that the word “parent” had a distinct meaning conferred by parliament in other areas of legislation such as surrogacy and adoption.

The legal position for trans people who create their family through assisted reproduction

Trans people who have transitioned before they become parents and who use assisted reproductive techniques to start their family will need to understand the complex rules of legal parentage.

Section 33(1) of the Human Fertilisation and Embryology Act 2008 states that “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”. The act of carrying and giving birth to a child makes that woman the legal mother, as demonstrated in the case of TT above.

It must follow, presumably, that if in the next decade or two a trans woman was to have a successful uterus transplant, have IVF treatment and give birth via caesarean section, whether they had a GRC or not, would be legally considered the mother as they had given birth. It will be interesting to see how the law develops if this were to be a medical possibility.

In relation to non-birthing trans parents who conceive with their partners through artificial insemination or embryo transfer, the provisions of the HFEA 2008 will apply and the assumption amongst practitioners and clinicians is that a trans person with a GRC would be able to be recognised as the father/second legal parent in their acquired gender. However, the Registrar General’s position is that, following section 12 of the GRA, a trans person “must be recorded in the entry in line with their birth sex” (quoted from HM Passport Office’s current handbook). This is ripe for legal challenge.

Trans people who become parents through surrogacy have it easier as, whether they have a GRC or not, following the making of the parental order, both parents will be legal parents and named as a non-gendered “Parent” on the birth certificate, regardless of whose gametes were used or whether donor gametes were used (provided there is a biological link to at least one of them).

Children who wish to transition and the administration of puberty blockers

As family lawyers, we may be instructed in cases where there is a dispute as to whether a parties’ child can transition and, specifically, whether they can be prescribed so-called puberty blockers (PBs). These cases are almost always likely to involve older children who will have their own views.

This is a controversial area, which was discussed in detail in Bell v Tavistock [2020] EWHC 3274 (Admin), where a young person who had been prescribed PBs sought to challenge the practice of the Gender Identity Development Service (GIDS).

There were three stages of physical intervention at GIDS:

1. administration of PBs which could in theory be prescribed to children as young as 10;
2. administration of cross-sex hormones (CSH) which could only be prescribed from around the age of 16; and
3. gender reassignment surgery, which is only available via the adult services once somebody acquires the age of 18.

The evidence suggests that most children and young people who took PBs would progress to CSH. GIDS asserted that they only referred a young person for PBs if they were Gillick competent (as per Gillick v West Norfolk and Wisbech AHA [1986] AC 112). Therefore, the principle issue in the case was whether a child or a young person under 16 could achieve Gillick competence (ie to understand, retain and weigh the information) in respect of the decision to take PBs for gender dysphoria. The court felt that a child would need to understand not just the implications of PBs blockers but those of progressing to CSH, and produced an eight-point list:

1. the immediate consequences of the treatment in physical and psychological terms
2. the fact that most patients taking PBs went on to CSH and potential greater medical interventions
3. the relationship between taking CSH and subsequent surgery
4. that CSH could lead to a loss of fertility
5. the impact of CSH on sexual function
6. the impact on future and lifelong relationships
7. the unknown physical consequences of taking PBs
8. that the evidence base for the treatment was highly uncertain

The court held that it would be difficult for a child under 16 to understand and weigh up such information. They felt that most would not be able to and that there was no age-appropriate way to explain what losing fertility or full sexual function in their later years might mean to a child. The court went as far as to say that it was “highly unlikely” that a child aged 13 or under would “ever” be Gillick competent to give consent to being treated with PBs, and that it would be doubtful that a child aged 14 and 15 could understand the long-term risks in such a way as to have sufficient understanding to make such a decision. The court therefore felt it was appropriate to give clear guidelines as to the application of the Gillick test.

Section 8(1) of the Family Law Reform Act 1969 inserted a presumption that those aged 16 or over had the capacity to consent to surgical and medical treatment. However, the court held that even that should be questioned given the significant long-term consequences of such treatments and suggested that doctors may wish to consider obtaining court approval prior to commencing any clinical treatment on those aged 16 and 17.

As a result of that initial ruling NHS England immediately stopped the Tavistock, the UK’s only GIDS clinic for children and young people, from accepting any new referrals and also froze access to PBs and CSH for under 16s.

Trans youths were essentially left in limbo, unsure as to whether treatment they had started already would continue or treatment they had desperately been waiting for (in some cases regarded as lifesaving treatment) would ever be available, despite having the support of their parents in many cases.

In September 2021 the Court of Appeal in Bell v Tavistock [2021] EWCA Civ 1363 overturned the decision of the Divisional Court. In doing so it stated that it had been wrong to declare what relevant information a child under 16 would have to understand, retain and weigh up in order to give informed consent to taking PBs. Gillick had made it clear that any decision was treatment- and person-specific, to that particular child with that particular proposed treatment at the time. The ratio decidendi of Gillick was that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment. Nothing about the nature or implications of treatment with PBs allowed for a real distinction from the consideration of contraception in Gillick.

The Court of Appeal said the Divisional Court had been wrong to imply findings when the complaint was based on areas of disputed fact, expert evidence and medical opinion, and it had been inappropriate for the court to provide guidance about when a court application should be made. It had imposed an improper restriction on the Gillick test.

In between the initial Bell case and the Court of Appeal case, the matter of AB v CD & ors [2021] EWHC 741 (Fam) was heard by Lieven J.

This was an application by AB, the mother of XY, for a declaration that she and the father, CD, had the ability to consent on behalf of XY to the administration of PBs. XY was born a boy and was aged 15 and had started PBs in July 2019.

The issue was whether the parents could consent to the treatment or whether it required an application to court, either as a matter of legal requirement or as a matter of good practice. XY’s GP was still willing to prescribe PBs but it was not clear whose consent was being relied on for that prescription to be lawful, post-Bell.

The court found that whether XY was Gillick competent or not, the parents retained the right to consent to treatment. In relation to whether the prescribing of PBs should be in a special category of medical treatment requiring court authorisation, the court held that there was no such requirement or best practice obligation to seek court authorisation where parental consent is given to PBs.

Two further PB cases were heard in 2024: Re J (Transgender: Puberty blockers and hormone replacement therapy) [2024] EWHC 922 (Fam) and O v P & anor [2024] EWHC 1077 (Fam). Both cases involved Gender GP, an online and offshore private gender clinic. Both cases involved natal female to male adolescents and in both cases the adolescent had a diagnosis of autism. A UK expert could not be found to give evidence in either case, so one was sourced from Australia.

In Re J the mother was in favour of PBs, the father was against. The child, J, was aged 16.5 and had started cross-hormone treatment with testosterone injections every three months. In the end, F accepted that J would undergo an assessment with a new clinic in London, Gender Plus, which would take six months. As such, the judge was not prepared to consider F’s arguments that the court should overrule J’s consent to treatment by exercising the inherent jurisdiction or to declare that, irrespective of the consent of a capacitous child and/or one parent, treatment with PBs or hormones should only be authorised with the approval of the court.

In O v P the mother and father were separated, and it was the mother who opposed PBs, and the father who approved. The child, Q, was aged 16. As with Re J, the opposing parent in this case (M) accepted that Q could undergo a six-month assessment with Gender Plus. F invited the court to dismiss the proceedings as Q should be left to make their own decision about treatment. M invited the court to adjourn and to make the declaration she sought that any proposed prescribing of PBs or gender affirming hormones to a person under 18 by a private provider must be subject to the oversight of the court – following publication of the Cass Review . She argued that the Court of Appeal decision of Bell v Tavistock and the decision of Lieven J in AB v CD could not survive the findings of the Cass Review.

Whilst Judd J rejected the criticisms of M for pursuing the proceedings, remarking that M’s concerns were shared by others, she was not able to depart from the decisions in Bell and AB v CD. She held that Q was competent to consent to their own treatment whether the parents agreed or not.

She therefore declined to make the declaration sought by M but said “Given the advice from the Cass Review any doctor will have to exercise great caution before prescribing hormones to a minor…”.

Cass Review

The Cass Review was commissioned by NHS England and NHS Improvement in Autumn 2020 and the final report was published in April 2024. Of interest to family lawyers will be the findings on PBs: that there is weak evidence regarding the impact on gender dysphoria, mental or psychosocial health; the effect on cognitive and psychosexual development remains unknown; and the lack of long-term follow-up data on those commencing treatment at an earlier age means there is inadequate information about the range of outcomes for this group.

The Cass Review recommended that children/young people referred to NHS gender services must receive a holistic assessment of their needs to inform an individualised care plan, which will be overseen by a paediatrician/child psychiatrist. This should include screening for neurodevelopmental conditions, including autism spectrum disorder, and a mental health assessment, and there should be a clear clinical rationale for providing hormones at this stage rather than waiting until an individual reaches 18.

It is clear that the law and the debate around trans issues is still evolving. Clarity is needed as to legal parentage for trans people conceiving children via artificial reproductive techniques and birth registration laws need to be reviewed. The issue of whether young people should be prescribed PBs will likely remain controversial. It will be interesting to see whether, following the findings of the Cass Review, judicial decisions relating to PBs and hormone treatment will change, putting the provision of PBs and hormone treatment into a “special category” of medical treatment which requires court authorisation in every case.

The issue of PBs also continues to have political and legal ramifications. Following the recent change in government, Health Secretary Wes Streeting has said that he plans to make permanent an emergency ban on the supply of PBs which was brought in by the previous Tory government. The emergency ban was to last from 3 June to 3 September 2024 and applied to UK private prescribers registered in the EEA or Switzerland. The NHS had already stopped routine prescription of PBs following publication of the Cass Review. However, there is currently a legal challenge on the ban in the High Court brought by the campaign group TransActual working with the Good Law Project. The judgment is awaited.

tammy.Knox@penningtonslaw.com

nataliesutherland@burgessmee.com