Transgender and the Family Courts

More than 250,000 people in England and Wales identify as transgender, according to the Census 2021 data which gave us the first true picture of gender identity in Britain.

Awareness of transgender issues in the Family Court is gradually increasing however the law of England and Wales is evolving slowly. Family Courts are a very stressful arena for transgender parents and children as there are still many obstacles to accessing justice. The Family Court has some distance to go and has not yet caught up with the changing social attitudes.

The legal change of gender is completed via a Gender Recognition Certificate which is governed by the Gender Recognition Act (GRA) 2004. Section 9 of the act sets out that: “Where a full gender recognition certificate is issued to a person, the person’s gender 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 and, if it is the female gender, the person’s sex becomes that of a woman).”

The requirements for a Gender Recognition Certificate are as follows:

• Lived in the acquired gender for 2 years – section 2(1)(b) of the GRA 2004.
• Intend to live in the acquired gender until death – section 2(1)(c) of the GRA 2004.
• Have a diagnosis of gender dysphoria – section 2(1)(c) of the GRA 2004.
• Must be 18 years old or over -section 1(1) of the GRA 2004.
• If married/civilly partnered, the spouse/civil partner must consent; otherwise, the marriage is annulled on issue – section 3(6-6D).

It is worth noting that gender confirmation surgery/medical intervention is not a requirement and foreign gender change is not automatically recognised; an application in England and Wales must be made.

Legal Parenthood:

Section 33 of the Human Fertilisation and Embryology Act 2008 states the person who carries the child is the mother.

Section 12 of the GRA 2004 affirms the fact that a person’s gender has become the acquired gender does not affect the status of the person as the father or mother of a child.

A child must legally have a mother named on their birth certificate. Much campaigning is underway to get rid of the titles of mother and father and to replace them with parent. In the case of TT, the applicant was born female however obtained a gender recognition certificate confirming that he is male. His gender when undergoing fertility treatment was registered as male. The issues arose when he went to register the birth of his child. He wanted to be recorded as the child’s father or parent but he was informed by the Registrar that he would be recorded as the mother. The applicant applied for judicial review but it was refused. He appealed this decision but it was unsuccessful. The President of the Family Division set out in his decision that mother is no longer a gender specific term and there can be male mothers. The issue for the applicant was section 12 of the GRA 2004.

Transgender children:

Section 2 of the Births and Deaths Registration Act 1953 sets out that parents must register their child’s birth within 42 days of the child’s arrival, to include the child’s given forename.

Documents that require a person’s legal name to be displayed even where the person is known by a different name include: passport; driving licence; National Insurance Number Card; DBS Check Certificate; Utility Bills; bus pass; NHS Health records; dental records; NHS medical card; optician records, school records; examination certificates; bank statements; child benefit; Post Office savings account; and housing benefit.

A legal change of name is completed via a Deed of Change Name referred to commonly as a “Deed Poll”.

If there is a dispute regarding a child’s name or pronoun changes, this will be dealt with via a Specific Issue Order application to the court under section 8 of the Children Act 1989. The court will consider the welfare checklist and in particular the wishes and feelings of the child, the child’s commitment to and consistency in their gender identity and the emotional harm to the child if any.

In public law cases where children’s service are involved, the applicable sections of the Children Act 1989 are sections 9, 33 and 100. Again the court will apply the same welfare checklist as in private cases.

The following medical interventions have age restrictions:

• Puberty blockers: no age requirement;
• Cross-sex hormones: aged 16 and over; and
• Sexual affirmation surgery: aged 18 and over.

If you would like more information or any advice please do get in contact with us.

Phone: 020 7101 3090

email: contact@beckfitzgerald.co.uk