As Mother’s Day fast approaches here in the U.S., the British have already celebrated “Mothering Sunday” on March 22 – nine months before Christmas.
Due to a lawsuit from a mother who identifies as male, British courts are ruling on what it means to be a mother – and whether someone who becomes pregnant and has a child can be registered as a child’s “father.”
A British court of appeals recently decided that Freddy McConnell must be listed as “mother” on the child’s birth certificate. McConnell is a 34-year-old journalist who was born female, but began living as a man at age 25, having a double mastectomy and taking testosterone, but retaining female reproductive organs. McConnell went off testosterone and was artificially inseminated.
The issue is complicated by competing claims – McConnell, by British law, is recognized as male. But the law also says that the person who gives birth is a mother to the child.
The United Kingdom’s Parliament passed the “Gender Recognition Act” (GRA) in 2004, giving citizens the ability to apply for a “gender recognition certificate” (GRC) – confirming their chosen “gender identity.” McConnell applied to register as a male in January 2017. According to the court decision, this required that he “intended to continue to live in the acquired gender until death.”
McConnell’s certificate stating his gender was “male” came through on April 11, 2017, just ten days before undergoing “intrauterine insemination fertility treatment at the clinic, during which donor sperm was placed inside his uterus” – in the court’s words.
So legally, McConnell was recognized as male – although a male with a uterus who was now pregnant.
McConnell gave birth in 2018. The pregnancy was the subject of a documentary titled Seahorse by The Guardian, a British newspaper, where McConnell has worked as a journalist. In a YouTube trailer (caution: language) for the film, McConnell said, “Male seahorses give birth and carry their babies. Trans dads who give birth call themselves ‘seahorse dads.’”
McConnell also said, “Being pregnant doesn’t change me being a trans man.” Participation in the documentary led to a request for privacy being denied and the court case being widely publicized in the media.
McConnell then asked to be listed as “father” on the baby’s birth certificate but was denied by the registrar. McConnell filed a lawsuit, and the most senior judge and president of England and Wales Family Court, Sir Andrew McFarlane, also denied McConnell’s request, in September 2019.
The judge said “that motherhood was about being pregnant and giving birth regardless of whether the person who does so was considered a man or a woman in law.” Among other statements, MacFarlane, ruled:
- At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s “mother”.
- The status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth.
- Being a “mother” or “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female.
McConnell appealed this ruling to a three-judge tribunal, which upheld MacFarlane’s decision and denied McConnell’s request to be labeled a “father.”
The appeals court tribunal said that the Untied Kingdom’s Children Act of 1989 superseded McConnell’s desire to be listed as “father,” emphasizing that the child’s right to a mother, who gives birth and has “automatic parental responsibility for a child from the moment of birth,” was more important.
McConnell is appealing this decision to the U.K. Supreme Court.