Transgender birth, birth registration and the rights of the child, by Julia Sloth-Nielsen and Rachel Sloth-Nielsen

Our article, Mothers and others: Transgender birth, birth registration and the rights of the child, with a focus on the United Kingdom and South Africa, centred around the case The Queen (on the application of TT) v. Registrar General for England and Wales [2019] EWHC 2384 (Fam). TT, the applicant and a trans man, brought his claim for judicial review in order to be registered as the father, alternatively as the parent of the child he had given birth to. TT was ultimately unsuccessful both in the court a quo and in his subsequent appeal. This paper started with the intent to merely analyse the abovementioned case and position in the United Kingdom with the juxtaposed hypothetical position which we conclude would occur should a case such as this ever be brought in South Africa. However, through the course of our research we found cases similar to TT in various other jurisdictions. In these different cases, Courts have taken different approaches and used differing reasoning in coming to their conclusion of whether a trans man who gives birth post transition (or trans woman who conceives using their own sperm post transition) should be registered on the child’s birth certificate in accordance with their birth assigned gender or their legally acquired gender (that being in line with their gender identity). What was interesting is that commitment to human rights did not determine which way a judiciary would lean in this question. Germany and the United Kingdom, both being known for their commitment to LGBTQ rights, both ruled that the trans parent had to be registered in line with the birth assigned gender of the parent, despite the legal gender transition having already been recorded. By contrast, a court in Brazil (where LGBTQ rights violations are well documented) ruled that a trans woman who conceived a child using her own male gametes with her cis female partner should be registered in accordance with her legally acquired (new) female gender, and thus as mother of the child.

In terms of children’s rights, the court in TT concluded that every child must have a mother, and that the motherhood was established by the act of giving birth, or ‘parturition’, and a person who became pregnant and gave birth was a ‘mother’. As a result of South Africa’s progressive Constitution which enshrines a prohibition on discrimination on the ground of sexual orientation, and case law surrounding gay rights, it is common cause that a child can instead have 2 fathers and no mother (same-sex commissioning parents) or even just 1 father (single male commissioning parent), especially in surrogacy cases.

Where the parent is to be registered on the child’s birth certificate in accordance with their birth assigned gender, it would seem that the rights of the child to know their biological origin or genetic identity (article 8 of the UN Convention on the Rights of the Child) was found to outweigh the consequences experienced by the child of having a birth certificate which does not align with child’s lived reality (having the person they know as ‘dad’ being identified as the mother on their birth certificate or vice versa) and of the possibility of having those around them know of their parents status as trans. There is obviously a tension between the consideration of the ‘best interests of the child’ requirement, as when here the social reality and the factual reality diverge. The view we support is that the best interests of the child of TT (YY) are better served by protecting the child’s social reality, given that this will serve to align the child’s identity with his social reality for his entire childhood, and that the best interests of the child has a temporal (longer term) dimension beyond the immediate decision as to how his parental details are recorded on his birth certificate. However, differing approaches taken by Courts in various jurisdictions are leading to diverse and conflicting consequences for trans parents and their children in foreign jurisdictions.

The main challenges experienced by us in our comparative research was gaining access to judgements in foreign jurisdictions, along with official English translations. In our reading of the German case, BGH, Order of 6 September 2017 – XII ZB 600/14 – Berlin Court of Appeal, we were assisted by a German colleague and friend, Dr Sabine Witting, in order to ensure we properly understood the reasoning of the Court. In dealing with the Swedish law, we were assisted by email by Jameson Garland from the University if Uppsala, as the Swedish cases were not only not available online, but the law was also not available in an official English version. With regards to our Brazilian case, it came to us quite by chance. A colleague who knew of our interest in this topic sent us a picture of an article published in a Brazilian newspaper which reported on the ground-breaking judgement. Without this thoughtful act, there is a good chance we would not have been able to include Brazil in our comparison. While the full judgement could not be found, we subsequently found articles on the case which could then be translated for our use. In essence, without the help of our esteemed colleagues, the comparative aspect of our paper would not have been as comprehensive as it was in our final article.

Julia Sloth-Nielsen (Professor, Western Cape and University of Leiden) and Rachel Sloth-Nielsen

The paper has been published in International Journal of Discrimination and the Law (Vol 20, Issue 4, 2020).