By Ruth Pearce, Sally Hines, Carla Pfeffer, Damien W Riggs, Elisabetta Ruspini and Francis Ray White. An article based on this piece has been published in The Conversation.
On Wednesday 25th September the UK’s High Court ruled that Freddy McConnell, a man who gave birth to his child, does not have the right to be registered as a “father” on his child’s birth certificate. The court also ruled out the possibility of registering him simply as the “parent”. McConnell, who is trans, has indicated his intention to appeal.
We feel that this is a disappointing outcome, with concerning consequences for the dignity of trans parents and the safety of their children. The law will continue to require that people who give birth to a child in the UK are always registered as the “mother” – even if they are legally men. For example, McConnell’s legal team noted that, “Freddy is legally a man and his legal papers display the same.”
Most importantly, the verdict wrongs the human rights of the complainant and his child, through failing to provide them with consistent legal documentation and intruding on their privacy. More widely it is wrong in terms of its failure to legally recognise diverse family forms and contemporary practices of intimacy, which question traditional gendered reproductive certainties.
Yet, paradoxically, the ruling brings into being a new legal category of “mother”, which is based on reproductive experience, rather than the traditionally sex/gendered body. From today, a ‘mother’ is not defined through binary sexed characteristics. And so, a man may be a a mother as much as a woman.
Judge Sir Andrew McFarlane is explicit on this point in his ruling. For example, in his concluding comments, he states that, “the term ‘mother’ is free-standing and separate from consideration of legal gender, thus in law there can be male mothers and female fathers” (noteably, there is no distinction between “sex” and “gender” in UK law).
This is why legal cases around gender recognition are so important. Even when they seem to fail the individuals who bring them to court, they very often also radically chip away at normative understandings of gender in unforeseen and unintended ways. Such paradoxes and contradictions are subsequently brought to light, unpacked and, very often, readdressed at appeal stages.
McFarlane’s ruling, then, may be seen as the first step in the legal undoing of binary understandings of reproduction and gender, sex and the body, wherein all families of all genders and all bodies will be recognised.
This is particularly important for the trans and non-binary birth parents we have spoken with for this research project, who seek forms of legal recognition that are consistent with how they experience gender in their everyday life.
Promotional image from the film Seahorse. Photo by Mark Bushnell.
How can a man give birth?
Many trans people undertake a social or medical transition that does not involve surgery to remove their reproductive organs. Therefore transition does not necessarily take away the ability or desire to reproduce. As Jonathan*, a participant in our research, argued:
I do want a child that’s biologically mine and I can get pregnant … I do have the ability to do that, so why should I not make use of that?
It is not just trans men who might choose to become pregnant. This can also be an option for many non-binary or genderqueer people: that is, individuals whose gender is partly or entirely separate from the binary options of female and male.
Trans people may conceive in a variety of ways: through intercourse, sperm donation, or assisted reproductive technologies. If a trans person is taking testosterone, it is typical for them to pause their medication regime some months before they conceive. There are, however, cases of people becoming unintentionally pregnant while undergoing hormone therapy, as testosterone is not a reliable contraceptive.
How common is this?
There are no firm statistics available on the number of trans and non-binary people who become pregnant and give birth. However, our research indicates that a growing number of trans people are choosing to start their own families in this way. As research participant Joseph* explained:
It’s not a new story, it’s not sensational.
More than 4,500 people worldwide are members of a private social media group for trans people who give birth. In Australia, the only country known to collect statistics on male birth parents, 205 men are recorded to have given birth between 2013 and 2018.
Can a child be born without a mother?
Some of the reporting on McConnell’s case in the British media has used quite emotive language. In stating that his child may be “without mother”, the implication was that something important might be lost.
But many children have been born to men and non-binary people. Some are in relationships with women who become the mothers of their children while others are single, or in relationships with other men or non-binary people. More broadly, there are many ways in which a child might grow up without a mother – if their mother dies in childbirth, if they are raised solely by male relatives, or are adopted by a male couple or single male parent.
What is missing from the reporting on the McConnell case is an account of what has been gained, regardless of what parents call themselves. As research participant Pete put it:
I’m proud to be their Papa.
Children gain a loving parent, and their parents gain an addition to their family.
What is at stake for trans parents?
Participants in our study reported a range of different experiences and views on matters such as gender, parenthood and being trans and/or non-binary. Nevertheless, all emphasised the importance of recognising that some people who give birth may be fathers or non-binary parents.
Trans and non-binary birth parents want fair and equitable access to social and healthcare services, and respect for their experiences. When pregnancy is conceptualised as something that can only affect women, then men and non-binary people can be excluded from services and legal protections, with potentially tragic consequences.
Many participants emphasised their fears around registering their child’s birth. It is possible for a birth parent to be registered as the “father” or simply the “parent” of their child in countries such as Sweden, and in some Canadian provinces and US states.
However, participants in countries such as the UK and Germany described difficulties associated with being forced to register as the “mother” of their child. For example, Stefan described his conversation with the registrar while recording his son’s birth:
I asked her how I should demonstrate or prove or verify that he’s my son with this birth certification, because nobody would believe me.
Similarly, Lewis* explained his family’s experience:
It was supposed to be the day she got registered and I was trying to be happy and positive but…you have to be put as mother. And that’s really crap. Because that’s her official documentation for the rest of her life. And not everyone’s gonna understand that. So, her safety is put into question.
For these people, having their gender appropriately recorded on their child’s birth certificate is a matter of basic dignity. But mostly importantly, it is a matter of respect and safety for the child. Parents such as Stefan and Lewis echoed McConnell, who has stated that “protecting my child has always been … my number one concern”. In expressing fears for the future of their children, they note the potential confusion that can arise from a child’s documentation being inconsistent with that of their parents.
Family forms and structures have changed many times through history and are still changing. Families with trans parents exist and they are here to stay. It is incumbent upon us to do what we can to best understand and by led by the unique characteristics, needs, challenges and strengths of these 21st-century families.
* All names of research participants have been changed to protect their privacy.