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LGBT+ History Month: Identification and transgender rights in family law - for adults, parents and children

Posted on 4 February 2022

February is LGBT+ History Month in the UK – a month-long observance to promote equality and diversity, while highlighting issues affecting the LGBTQI+ community. Transgender people, whose gender identity is not the same as the sex they were born with, make up part of this community.

In 2021 small steps were taken by international communities to improve the rights of transgender people – with the UK reducing the fee for a person to change their legal gender under the Gender Recognition Act 2004; the European Court of Human Rights finding that Russia's denial of a transgender woman's right to maintain contact with her children violated her rights to family life and freedom from discrimination; and New Zealand enacting a law that allows a person to change the sex recorded on their birth certificate without providing evidence of a medical procedure.

However, with police recording 2,129 transphobic offences in January to August 2021 in the UK (up from 1,606 in 2020) what cannot be contested is that the transgender community remain a target of abuse and violence, and still face discrimination. This article explores the current family law implications for those affected by gender identity issues – specifically parental rights and self-identification.

An adult's right to identify

Currently the law in the UK allows a person to change their legal gender, providing that person is over 18 years old and meets other criteria. Two of these criteria are that the person has been diagnosed with gender dysphoria (discomfort with the gender they were born with) and can provide evidence that they have been living as their acquired identity for (in most cases) two years. They then apply to the Gender Recognition Panel for a Gender Recognition Certificate (GRC), and if approved that person may also apply for a new birth certificate or marriage/civil partnership certificate.

The UK recently reduced the fee for this in a move to lessen financial barriers. While there have been calls to overhaul the process to prevent it taking as long as it currently does to gain a certificate (some applicants have waited five years) with the government wishing to 'de-medicalise' and streamline the procedure in 2017, no other amendments have yet taken place. In December 2021, the Women and Equalities Committee released a report into reform of the Gender Recognition Act with significant recommendations detailed. These include fully digital applications for GRCs, calls for faster and more thorough engagement by the Government to the consultation, removal of the requirement to have lived for a set period of time in the acquired gender for a GRC, and the removal of the requirement for spousal consent to a GRC.

However, the process does not end there for full gender recognition. Once a person has a GRC, issues remain for identification. Freddy McConnell, a transgender man, has given birth to two children – his most recent child was born last month. Mr McConnell was granted a GRC prior to his first child's birth, but was registered as the 'mother' on the birth certificate. He has been fighting to change that since 2018 – with the Supreme Court in 2020 refusing permission to appeal a finding that, while Mr McConnell was a man by law, having a GRC he could not be registered on his child's birth certificate as either the 'parent' or the 'father'.

The Court found, while considering Article 8 of the European Convention on Human Rights (the right to private and family life), on balance, the right of a child born to a transgender parent to know the reality of their birth trumped the parent's right to be recognised on the birth certificate as their legal gender, and a coherent system of recording parentage was needed.

Therefore, while both the law and the courts have developed a recognition of modern family issues – there remain hurdles to gain what is seen by many as full gender recognition.

A child's right to identify

There continues to be much debate about a child's right to gender recognition, but little case law on the matter. While there are concerns from many parts of society about children with gender dysphoria and the age at which they should be able to make a decision as to their gender identity (whether from a legal, medical or social perspective), the Courts have intervened under certain circumstances to enable a child to explore or protect their gender identity, and indeed consent to treatment.

The 2016 case of Re J (A Minor) involved a care order made in respect of a 7-year-old boy who had lived with his mother after the parents relationship broke down. His mother refused contact with the child's father on various grounds, including that the father was resistant to the child's gender variance. While in the mother's care the child presented as a girl. However, professionals and local authority investigations showed that there was no independent or supportive evidence that the child identified as a girl.

The High Court found that there was no evidence to support the mother's claims. The Court found that significant emotional harm flowed from the mother's rigid approach to gender identity and her resistance to engaging with professional advice, and that the child's needs were best met by moving to live with his father. In this case the Court placed the child's emerging identity at the heart of the case and found that the mother had caused significant emotional harm in forcing him to live as a girl – something that he, at that time, did not want to be.

A more recent case in 2021, Bell v Tavistock, revolved around whether a child under the age of 16 could competently consent to taking puberty blockers. The Divisional Court provided guidelines as to when a child will be deemed to have the competence to provide informed consent to puberty blockers. It recommended that a clinician should seek court authorisation prior to the treatment of any child under 18 years old, further finding a 13-year-old was "highly unlikely" to give informed consent, and it was "doubtful" whether a 14 or 15-year-old could. The Court of Appeal found it was not appropriate to generalise as to the capabilities of persons of different ages, nor to provide a checklist for clinicians where there was some evidential conflict. The Court of Appeal's judgment makes it clear that it is for the clinicians, the child and their parents to ensure the advantages and disadvantages have been properly presented "in light of evolving research and understanding of the implications and long-term consequences of such treatment." The Court did add a warning that clinicians must ensure there is informed consent, or potentially face both personal and professional recriminations.

These cases show that the Courts, while willing to intervene, take a cautious but child-focussed approach to gender dysphoria issues – placing professional input at the heart of decisions.

Comments

It is clear that the law, Courts' and public's views on transgender rights are still developing. While the law is willing to recognise that a person, whether a minor or an adult, may identify as the gender they feel reflects their true self – it does not go so far as to allow "full" gender recognition for either children or adults. While controversy surrounds much of the conversation taking place, these are issues faced by many individuals and families seeking to navigate their way through the legal, social and medical systems. The transgender community no doubt awaits developments with keen interest, as do the legal and medical communities.

For support for UK based gender-diverse children, young people and their families, the charity Mermaids offers a helpline, local support groups and training.

February is LGBT+ History Month – a month dedicated to the remembrance and celebration of LGBTQI+ lives, reflection on the historic progress of the LGBTQI+ community, and raising awareness of contemporary issues facing the LGBTQI+ community today. Mishcon de Reya LLP has long been committed to ensuring and promoting equality and diversity. In 1957 our founder, Lord Mishcon, sat on the Wolfenden Committee which recommended that homosexual activity between consenting adults should be decriminalised, ultimately leading to a change in the law. Today, we run Pink Law, a LGBTQI+ legal advice centre, support the LGBTQI+ film festival BFI Flare, have an active and vibrant Pride Network for both colleagues and contacts, and support a range of LGBTQI+ clients with both their business and personal needs.

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