U.K. High Court Calls Trans Woman ‘He’ But Won’t Allow ‘Father’

U.K. High Court Calls Trans Woman ‘He’ But Won’t Allow ‘Father’

If this all seems totally bats, it’s because it is. If someone is woman enough to conceive, gestate, and birth live young, she, he, or they should have no issue using the word mother as an identifier.
Libby Emmons
By

The United Kingdom’s High Court recently denied transgender female Freddy McConnell’s petition to be listed as “father” on the birth certificate for a child she birthed after artificial insemination. Before pregnancy, McConnell had been injecting testosterone, undergone a double mastectomy, and presented in appearance as male.

McConnell had also legally changed her listed gender from female to male. But although McConnell wanted to be called a father, she also wanted to carry the child using her female reproductive system. After a 16-month lawsuit, the government denied her request to be listed as father, and defined the term mother not only as a person, but as a verb.

The United Kingdom’s Gender Recognition Act of 2004 gave trans people the right to legally change their listed sex on identification documents. The next U.K. census will include the question “Is your gender the same as the sex you were registered at birth,” allowing trans persons to self-identify their gender.

The U.K. has some of the farthest-reaching regulations to accommodate trans people who want to be recognized according to their gender identity as opposed to their sex. Yet when faced with the question of whether a legally identified man who gave birth could be labeled “father,” the High Court ruled this a step too far.

Calling the Womb-Bearer ‘Father’ Somehow a Step Too Far

In its 61-page decision, the High Court went through the facts. McConnell transitioned to “live in the male gender” at age 22. Testosterone injections began in 2013, and in 2014, the double mastectomy was performed. Both her passport and National Health Service documents identify McConnell as male. Presumably, the NHS—the nation’s government-run health care system—is aware of McConnell’s female reproductive organs.

The Court notes that in September 2016, McConnell and her doctors suspended her testosterone injections “and later commenced fertility treatment… The aim of the treatment was to achieve the fertilisation of one or more of [McConnell’s] eggs in his [sic] womb.”

While attempting to generate a child in her womb, McConnell filed an application in January 2017 for a “Gender Recognition Certificate.” In April 2017, it was granted, and she was legally labeled male. Per the court, “the legal effect of a GR certificate is that the person to whom the certificate relates ‘becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man …).’”

Despite claiming to be male, McConnell successfully underwent intrauterine insemination, “during which donor sperm was placed inside his [sic] uterus. The process was successful and conception occurred with the result that [McConnell], a registered male, became pregnant. [McConnell] carried the pregnancy to full-term and, in January 2018, he [sic] gave birth to a son…”

Yes, the High Court actually wrote that, despite it being entirely nonsensical. But the Court could not rule that Freddy McConnell was father to the son she gave birth to after sperm fertilized an egg in her womb.

Can’t Imagine Why There’s No Precedent for This

The court did its work, and looked into every precedent, applicable laws, and cases. The decision tracks through the Human Fertilisation and Embryology Acts of 1990 and 2008, and the questions that arose with regard to surrogacy and trans identity. Referenced are the Registration of Births and Deaths Regulations 1987, and Children Act 1989, as well as domestic case law in how a man living as a woman should be listed on his pre-existing children’s birth certificates. The decision, in that case, was father.

McConnell’s journey to and through pregnancy was public. She was the subject of Jeanie Finlay’s documentary “Seahorse,” which documented the difficulty she experienced as a pregnant trans person claiming to be male. “This is a film about me having a baby,” she says in the film. “But what I feel like I’m going through isn’t me having a baby, or pregnancy. It’s like a total loss of myself.”

This is actually a beautiful description of motherhood. When a woman knows she is pregnant, and welcomes that new life into her body, it feels just like McConnell describes. Motherhood feels like a total loss of self, because it is.

A mother feels like she is not the most important person in the world, that the primacy of her body is no longer, that her morphing, changing body is not her own. The growing child can blot out a woman’s identity, change it from “individual” to “mother.” It happens quickly, fully, and can be extremely jarring and off-putting, even if the child was wanted very badly.

What Is a Mother, Indeed

The High Court had to decide what would be best for McConnell, and for her son. Was it more important that McConnell’s gender identity be affirmed, or that her child had an accurate birth certificate, and a mother?

But what is a mother? Before defining “mother,” the court had to consider the morphing definition of “woman.” It was also noted that if McConnell was not actually a woman at the time she received fertility treatments, “…then the treatment that he [sic] received at the clinic would have been entirely outside the regulatory scheme of the [Human Fertilisation and Embryology Acts].” Thus, the fertility clinic provided fertility treatments to someone claiming to be a man in order to impregnate her, while her NHS card states that she is male.

If this all seems totally bats, it’s because it is. If someone is woman enough to conceive, gestate, and birth live young, she, he, or they should have no issue using the word mother as an identifier. In fact, once a mother, that becomes the primary, inescapable identifier.

Common Sense Out the Window Long Ago

This would be common sense, and prior to recent changes about the legal status of gender usurping the biological status of sex, it was common knowledge, as well. The court states that “the position at common law, prior to recent legislative changes, is, therefore, that the person who carries a pregnancy and gives birth to a child is that child’s ‘mother’. The attribution of motherhood is a consequence of the individual’s unique role in the biological process of pregnancy and birth.”

In short, if gender and biological sex are different matters entirely, then perhaps gender is not the main factor in determining parentage, but biology is. The court continues:

it is pertinent to ask whether the role of ‘mother’ is… entirely gender specific… It is undoubtedly the case that throughout history the role of being a gestational mother has been undertaken by females, but is being female the essential or determining attribute of motherhood? There is a strong case to be made for the role of ‘mother’ being ascribed to the person, irrespective of gender, who undertakes the carrying of a pregnancy and who gives birth to a child. In that regard, being a ‘mother’ is to describe a person’s role in the biological process of conception, pregnancy and birth; no matter what else a mother may do, this role is surely at the essence of what a ‘mother’ undertakes with respect to a child to whom they give birth. It is a matter of the role taken in the biological process, rather the person’s particular sex or gender.

This means that “mother” is also a verb. To “mother” is to bear a child. If one does “mother” in this sense, then, according to High Court and everything that is rational, that person, despite her presentation, the drugs she is taking, her chosen pronouns, or her expressed identity, is a mother.

McConnell may appear as father, may teach her son to shave, or do other things associated with fatherhood, but she also will be mother, for she has “mothered” the child. One imagines that a child so hard fought for, so urgently wanted and sacrificed for, has a loving, doting, capable parent in McConnell.

For McConnell, the want to mother outweighed the desire to be father, and notwithstanding the potential further effects on her dysphoria, the child, as for so many mothers, is worth the often difficult effects on ourselves. McConnell undertakes the act of mothering; therefore, she is a mother. While she will undoubtedly appeal, the High Court ruling was just and sound.

Libby Emmons is a Senior Contributor to The Federalist. She is a writer and mother living in Brooklyn, NY. Follow her on Twitter @li88ynyc.

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