A man who has his gender reassigned to female has failed in a legal challenge at the High Court to a requirement that she must be recorded as the “father” of her two children on their birth certificates.
A judge ruled that the UK’s birth registration scheme, which requires that the woman, JK, be recorded as the father is lawful and justified.
Mr Justice Hickinbottom ruled the requirement did not, as JK claimed, unlawfully interfere with her article 8 right, as well as her children’s, under the European Convention on Human Rights (ECHR) to keep her transexuality a private matter.
In addition, the judge ruled the requirement did not, under article 14, discriminate against JK “on the basis of her transgender characteristic”.
He said: “The ability to change a child’s birth certificate would be contrary to the coherence of the birth registration scheme, and in particular the principle that a birth certificate shows the relevant details of a child at his or her birth, and those details cannot be changed.”
The judge added: “There is no country in Europe or elsewhere that enables a person to make such a change as the claimant seeks.”
He added that the case gave rise “to important issues concerning the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.”
JK had two children, AK and PK, from her marriage to KK, all of whom were named as interested parties in the case.
When the registrar general for England and Wales refused to show JK on the children’s birth certificates as “parent” or “father/parent”, JK challenged the decision.
KK gave birth to daughter AK in July 2012 and JK was recorded on the birth certificate as the father using her former male forename.
However, JK, at this point, “felt the desire to live as a woman” the judge said.
A doctor referred her to a gender clinic and she changed her name by deed poll in June 2012, living from that period as a woman.
She was diagnosed with gender identity disorder as well as concomitant gender dysphoria.
JK then began a course of hormone treatment and was put on a waiting list for surgery.
The judge said: “However, before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant.”
JK asked the local registrar for births to re-register AK’s birth either right away or following the grant of a gender recognition certificate (GRC) – with JK being recorded as the “parent” rather than “father”.
In addition, JK asked that she be referred to as the “parent” of the second child when it was eventually born. PK was born in the Spring of 2013.
However, a superintendent registrar made it clear that, as the law stood, JK required to be recorded as the father in both cases.
The registrar offered to include JK’s former male name, the judge said, but JK thought that inappropriate “in view of her transition”.
Dan Squires, representing JK, said at Birmingham Civil Justice Centre in December that the birth certificates would reveal that JK is a transsexual.
His argument was that the registrar general had erred in law by not using his discretion to register JK as a parent or father/parent.
But Mr Justice Hickinbottom said the scheme of the Registration Services Act 1953 did not afford the registrar such discretion.
He said that “while gender is an important element in an individual’s fundamental identity”, the interference with JK’s article 8 rights would be small.
The judge added that varying the birth certificates would actually have the effect of interfering with each child’s article 8 right “to have his or her fundamental identity recognised”.
He said: “In some cases, such alteration may be adverse to the best interests of the relevant children.”