Authored By: Muzamil Hasnain
UWE Bristol
- Introduction
The decision of the Court of Appeal in McConnell (on the application of) and YY v Registrar General for England and Wales [2020] EWCA Civ 559 is one of the most significant English judgments addressing the legal status of transgender parents and the interpretation of the Gender Recognition Act 2004 (“GRA 2004”). The case confronted a complex question at the intersection of gender recognition, reproductive rights, and the registration of parenthood: whether a transgender man who had obtained a Gender Recognition Certificate (“GRC”) and subsequently gave birth could be legally recorded as “father” or “parent” on his child’s birth certificate, rather than “mother”.
The Court of Appeal upheld the High Court’s decision, confirming that under English law the individual who gives birth must be registered as the “mother” of the child, regardless of that person’s legal gender under the GRA 2004. Although the Court accepted that this outcome constituted an interference with the right to respect for private and family life under Article 8 of the European Convention on Human Rights (“ECHR”), it held that such interference was justified, lawful, and proportionate.
This case note analyses the reasoning adopted by the Court of Appeal, its interpretation of ss 9 and 12 of the GRA 2004, its engagement with ECHR principles, and its implications for both domestic family law and the broader recognition of transgender rights in the United Kingdom.
- Background and Legal Framework
2.1 The Gender Recognition Act 2004
The GRA 2004 was enacted in response to the European Court of Human Rights (“ECtHR”) decision in Goodwin v United Kingdom (2002) 35 EHRR 18, which found that the UK’s refusal to recognise a post-operative transgender person’s acquired gender breached Articles 8 and 12 ECHR. The Act provides a legal mechanism through which individuals can obtain a Gender Recognition Certificate and thereby be treated for all legal purposes as having their acquired gender.
Section 9(1) of the GRA 2004 states that once a full GRC is issued, the individual’s gender “becomes for all purposes the acquired gender.” However, s 9(2) provides that this does not affect things done, or events occurring, before the certificate was issued. Section 12—the provision at the core of McConnell—states that “the fact that a person’s gender has become the acquired gender under this Act does not affect the status of that person as the father or mother of a child.” This provision thus preserves the legal parental role associated with biological parenthood, notwithstanding any subsequent gender recognition.
2.2 Birth Registration Law
Under s 1(1) of the Births and Deaths Registration Act 1953, the Registrar General has the statutory duty to maintain accurate registers of all births and deaths in England and Wales. The accompanying Registration of Births and Deaths Regulations 1987 require the registrar to record the “name and surname, occupation and usual address” of the “mother” and “father” (where applicable). The statutory language reflects a binary understanding of parentage that historically aligned with biological sex: the person who gives birth is recorded as “mother”, and the person with paternal or partner status under the Human Fertilisation and Embryology Acts (“HFEA”) 1990 and 2008 may be recorded as “father” or “parent”.
2.3 Human Rights Context
The Human Rights Act 1998 (“HRA 1998”) incorporates the ECHR into domestic law. Sections 3 and 4 of the HRA require courts to interpret legislation, where possible, compatibly with Convention rights, and to issue a declaration of incompatibility where such an interpretation is not possible. Articles 8 and 14 ECHR were the primary rights invoked in McConnell. Article 8 protects the right to respect for private and family life, while Article 14 prohibits discrimination in the enjoyment of those rights.
- Facts and Procedural History
Alfred McConnell was assigned female at birth but transitioned to male and lived as such from 2013. He underwent testosterone therapy and chest reconstruction surgery, and in April 2017 he was granted a GRC recognising him in law as male. Despite this, he retained his uterus and ovaries. Later that month, McConnell underwent fertility treatment and became pregnant through artificial insemination. He gave birth to a child, YY, in January 2018.
When registering YY’s birth, the Registrar General recorded McConnell as “mother” pursuant to the 1953 Act. McConnell sought judicial review of that decision, arguing that it unlawfully failed to recognise his legal gender under the GRA 2004 and violated his rights under Articles 8 and 14 ECHR. He contended that he should be recorded as the “father” or at least “parent” on the birth certificate.
The President of the Family Division (Sir Andrew McFarlane) dismissed the application in September 2019, holding that the Registrar had acted lawfully and that the statutory provisions did not permit the alteration sought. McConnell and YY appealed to the Court of Appeal (Civil Division).
- Issues Before the Court
The Court identified two principal issues:
- Statutory interpretation: How should ss 9 and 12 of the GRA 2004 be interpreted—do they have retrospective only, or both retrospective and prospective effect? In particular, does a GRC change how a person who gives birth is to be described on their child’s birth certificate?
- Human rights compatibility: Does the statutory requirement to record McConnell as “mother” constitute an unjustified interference with his rights (and those of YY) under Articles 8 and 14 ECHR?
- The Judgment and Reasoning
5.1 Interpretation of ss 9 and 12 GRA 2004
The Court of Appeal, affirming the High Court, held that s 12 GRA 2004 applies both retrospectively and prospectively. This means that even after the issue of a GRC, the fact of giving birth determines the legal status of “mother” for registration purposes. The Court reasoned that Parliament had expressly provided, through s 12, that gender recognition “does not affect” parental status as mother or father. The provision was therefore intended to operate in both temporal directions.
The Court rejected McConnell’s argument that s 12 should be read narrowly as applying only to children born before the issue of a GRC. A literal and purposive reading, supported by the legislative context, made it clear that Parliament intended to preserve the traditional connection between biological gestation and the legal concept of motherhood.
Lord Burnett LCJ emphasised that the Registrar General’s duty under the 1953 Act is to record biological parentage, not social or gender identity. The Registrar had therefore acted in accordance with the law.
5.2 Role of Explanatory Notes and Parliamentary Intention
McConnell relied on paragraph 43 of the GRA’s Explanatory Notes, which states that a person’s acquired gender does not affect their parental status as “mother” or “father”, suggesting that continuity of parenthood was intended only for children born before a GRC was issued. The Court, however, held that Explanatory Notes are not binding and cannot override clear statutory wording. Citing R (National Asylum Support Service) [2002] UKHL 41, Lord Steyn’s dictum was invoked that such materials may assist interpretation but cannot displace the intention of Parliament as expressed in the statute itself.
5.3 Institutional Competence
The Court stressed that any redefinition of “mother” or “father” across the statute book would have extensive legal consequences and is therefore a matter for Parliament, not the courts. Judicial re-labelling of parenthood would create inconsistency across numerous enactments—such as the Children Act 1989, which refers to “mother” over 40 times—and disrupt the established framework of parental responsibility and rights.
- Human Rights Analysis
6.1 Article 8 ECHR: Private and Family Life
The Court accepted that requiring McConnell to be listed as “mother” interfered with his Article 8 rights and those of his child. Recognition of gender identity and family relationships falls squarely within the scope of Article 8. However, the Court applied the standard three-stage analysis under Article 8(2):
- In accordance with the law: The interference was clearly prescribed by law—namely, by the 1953 Act and ss 9 and 12 of the GRA 2004.
- Legitimate aim: The objective of maintaining a consistent and accurate system of birth registration, and ensuring clarity of parental responsibilities and rights, constituted a legitimate aim within the meaning of Article 8(2).
- Necessity and proportionality: Applying the four-limb proportionality test articulated in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, the Court held that the measure pursued a sufficiently important objective, bore a rational connection to that aim, and that there were no less intrusive means to achieve it. The interference struck a fair balance between McConnell’s rights and the broader public interest in legal certainty.
6.2 Margin of Appreciation and Comparative Context
The Court relied heavily on ECtHR jurisprudence, noting that issues involving gender, reproduction, and parentage attract a wide margin of appreciation for member states, given their ethical sensitivity and the lack of European consensus. Reference was made to X, Y and Z v United Kingdom (1997) 24 EHRR 143, in which the ECtHR found no violation of Article 8 where UK law did not recognise a trans man as the father of a child conceived through donor insemination by his partner. The Court also discussed Hämäläinen v Finland (2014) 37 BHRC 55, which reaffirmed the wide margin afforded in such contexts.
The Court further noted similar outcomes in Germany, where under §1591 of the German Civil Code the woman who gives birth is the legal mother, and §11 of the German Transsexuals Act preserves this position even after gender recognition.
6.3 Article 14 ECHR: Non-Discrimination
The appellants argued that the requirement to register McConnell as “mother” amounted to discrimination on grounds of gender identity. The Court, however, held that any differential treatment pursued a legitimate aim and was proportionate. There was therefore no violation of Article 14 when read in conjunction with Article 8.
- Critical Analysis
7.1 Strengths of the Decision
The Court’s reasoning is doctrinally coherent and consistent with orthodox statutory interpretation. Section 12 GRA 2004 is expressed in unequivocal terms, and the Court was correct that the judiciary cannot re-legislate by judicial construction. From a rule-of-law perspective, the decision preserves the integrity of the statutory framework governing parentage and avoids piecemeal re-definition across multiple enactments.
The Court’s approach also respects the principle of institutional competence: matters involving social policy, moral sensitivity, and potentially broad legislative reform are more appropriately addressed by Parliament than by the courts. In doing so, the Court adhered to the constitutional boundary reaffirmed in Nicklinson v Ministry of Justice [2014] UKSC 38, where similar caution was exercised in matters of moral and ethical controversy.
7.2 Weaknesses and Critiques
Nevertheless, the decision has attracted significant criticism for its rigid adherence to biological determinism and insufficient attention to the social and psychological dimensions of parenthood and gender identity. The Court accepted that the interference with Article 8 rights was significant but arguably failed to engage in a searching proportionality assessment.
7.2.1 Conflation of Biological and Legal Parenthood
By equating gestation with legal motherhood, the Court entrenched a biologically essentialist conception of parenthood inconsistent with the broader direction of family law, which increasingly recognises intention and social role. For instance, the HFEA 2008 allows non-gestational partners (including same-sex couples) to be recorded as “parents” based on consent and intention, not biology. Denying similar flexibility to transgender parents undermines the principle of equal recognition.
7.2.2 Under-application of the Article 8 Proportionality Test
The Court’s proportionality reasoning relied heavily on administrative convenience and legislative consistency, with limited consideration of less intrusive alternatives—such as allowing registrants with a GRC to choose a gender-neutral term (“parent”) on the birth certificate. The Court assumed that even modest changes would necessitate wholesale legislative reform, an arguably overstated claim.
7.2.3 Child’s Rights and the UN Convention on the Rights of the Child
The Court briefly referred to Article 3(1) of the UN Convention on the Rights of the Child, which requires that the best interests of the child be a primary consideration. However, it did not fully consider whether the child’s right to an accurate reflection of family identity might favour a flexible registration policy. International human-rights law increasingly views the recognition of family diversity as integral to a child’s identity and well-being.
7.2.4 The Margin of Appreciation and Evolving Consensus
While reliance on the margin of appreciation doctrine aligns with ECtHR precedent, the Court’s invocation of it may be premature. There is emerging European movement toward recognising transgender parents in accordance with their acquired gender, narrowing the scope of permissible national variation. For example, recent French and Dutch reforms have permitted recognition of transgender fathers or gender-neutral parental terms. A future ECtHR decision may therefore find that the UK’s rigid approach no longer falls within the acceptable margin.
7.2.5 Legislative versus Judicial Responsibility
Although deference to Parliament is constitutionally prudent, courts remain obliged under s 3 HRA 1998 to interpret legislation compatibly with the ECHR “so far as it is possible to do so”. A more creative reading of s 12 GRA 2004—viewing it as preserving prior parenthood only for children born before the GRC—might arguably have been “possible”. The Court’s conclusion that no such interpretation could be adopted may have been unduly conservative, especially given the purposive interpretive ethos of the HRA.
- Significance and Conclusion
8.1 Legal Significance
McConnell confirms that under current English law, the individual who gives birth is always the legal “mother”, regardless of gender recognition status. This principle aligns with the long-established common-law and statutory position, reinforced in cases such as R (JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin). The judgment underscores that the GRA 2004, despite its transformative purpose, contains express limitations preserving biological definitions of parenthood.
The case also demonstrates the constrained reach of the HRA 1998 in reconciling domestic law with evolving human-rights standards. While the Court acknowledged an interference with Article 8, it deemed it proportionate, thereby declining to issue a declaration of incompatibility under s 4 HRA. The door remains open, however, for further challenge before the ECtHR, where a more dynamic understanding of family life may eventually prevail.
8.2 Socio-Legal and Policy Implications
From a policy perspective, the decision highlights the need for legislative reform to accommodate the realities of transgender parenthood. The binary terminology of “mother” and “father” in birth registration law is increasingly misaligned with social practice and advances in reproductive technology. The adoption of a gender-neutral term such as “parent” could preserve accuracy while respecting gender identity.
The judgment also carries implications for privacy and equality. The requirement that a transgender man be listed as “mother” publicly discloses his transgender status whenever the birth certificate is produced, potentially exposing him and his child to stigma and discrimination. Such outcomes arguably conflict with the protective aims of both Article 8 ECHR and domestic equality law under the Equality Act 2010.
8.3 Conclusion
McConnell is a careful yet cautious decision that faithfully applies statutory text but offers little progress toward substantive equality for transgender parents. The Court’s interpretation of s 12 GRA 2004 prioritises legislative clarity over lived experience, and its deferential stance underscores the judiciary’s limited willingness to reinterpret statutes with broad social ramifications.
Ultimately, the case exemplifies the tension between legal formalism and the evolving understanding of gender and family in modern society. While doctrinally sound, the decision underscores the inadequacy of existing legislation to address the realities of gender diversity in parenthood. The Court of Appeal left open that reform must come through Parliament, but the persuasive reasoning of cases such as Goodwin and the broader trajectory of European human-rights law suggest that a more inclusive approach may eventually be required to align the United Kingdom’s birth registration system with the principles of dignity, privacy, and equality that underpin the ECHR.
- References (OSCOLA)
- McConnell (on the application of) and YY v Registrar General for England and Wales [2020] EWCA Civ 559 (CA).
- Gender Recognition Act 2004, ss 1, 2, 9, 12.
- Births and Deaths Registration Act 1953, s 1.
- Registration of Births and Deaths Regulations 1987 (SI 1987/2088).
- Human Fertilisation and Embryology Act 2008, ss 33–47.
- Family Law Act 1986, s 55A.
- Human Rights Act 1998, ss 3, 4.
- Goodwin v United Kingdom (2002) 35 EHRR 18.
- X, Y and Z v United Kingdom (1997) 24 EHRR 143.
- Hämäläinen v Finland (2014) 37 BHRC 55.
- R (National Asylum Support Service) [2002] UKHL 41.
- Bank Mellat v HM Treasury (No 2) [2013] UKSC 39.
- R (JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin).
- Nicklinson v Ministry of Justice [2014] UKSC 38.
- Corbett v Corbett (otherwise Ashley) [1971] P 83.
- Rees v United Kingdom (1986) 9 EHRR 56.
- Whittington Hospital NHS Trust v XX [2020] UKSC 14.
