Celeste E. Orr criticizes the UK ruling that denies a trans father, Freddy McConnell, the right to be named as a father on his child’s birth certificate after giving birth.
Recently, Freddy McConnell lost the right to be named as a father on his child’s birth certificate in a historic court battle in the UK.
McConnell, a trans man, gave birth to his child in 2018 and, like any father would, wanted to be listed as the child’s father on their birth certificate. Given McConnell is a man, naming him as the child’s father would be correct and logical; having him listed as the father reflects the child-parent relationship, the reality of the situation, their family, and McConnell’s gender.
Naming him a father would also be legally accurate. “Freddy is legally a man and his legal papers display the same,” writes Karen Holden, McConnell’s lawyer.
Nevertheless, Sir Andrew McFarlane, the president of the high court’s family division, ruled that motherhood is about being pregnant and giving birth, regardless of one’s legal gender status. McFarlane’s ruling grossly undermines McConnell’s gender and legal recognition as a man and reveals that cissexism is the only motivating factor of the ruling.
Taken to its logical conclusion, McFarlane’s ruling would also deny motherhood status and birth certificate rights to adoptive cisgender mothers. However, once a child is adopted in the UK, the child’s original birth certificate is replaced, reflecting the adoptive parents’ legal genders and recognizing them as mothers or fathers. Of course, motherhood status and legal parentage will not be stripped from adoptive women simply because they were not pregnant and did not give birth to the child. To be clear, I do not propose that these women’s status as mothers and birth certificate rights ought to be challenged or removed because of this ruling. Rather, I note this logical discrepancy to highlight the fact that the ruling is clearly and simply about maintaining and stoking cissexist discrimination and re/marginalizing trans people.
In addition, the ruling does not reflect our knowledge of biomedical science, gender, or sex. Though we have been taught to understand bodies as innately and strictly female, male, or “disordered,” bodies are not inherently sexed or gendered. Moreover, biological sex is not a binary, but rather exists on a spectrum. No body part definitively and unproblematically renders a person male or female. Ideas about sex, like ideas about gender, are created and re-created in, through, and by culture. In other words, dominant socio-political ideas about gender precede or influence how sex is defined and understood. As such, pregnancy is not inherently feminine and does not necessarily render one a mother. This is especially the case if the person who gave birth is a man, genderqueer, non-binary, or intersex, or if the person plans to give the child up for adoption and does not conceptualize themselves as a mother or a parent.
Ultimately, McConnell’s pregnancy and subsequent delivery of the child does not in any way negate his masculinity and ought not deny him his rightful claim to fatherhood. Denying him this right is both discriminatory and anti-science.
The British Medical Association recognizes that some trans men, intersex people (including intersex men), and genderqueer and non-binary individuals may become pregnant and give birth. This guideline recognizes that not only cis women can get pregnant and give birth. As a result, medical professionals are called to use more inclusive language: “pregnant people” instead of “expectant mothers.” The term “pregnant people” “widens the discursive space, allowing those who don’t ascribe to motherhood discourses to feel less threatened and unrepresented in medical(izing) spaces.” It also implicitly urges legal realms to support, reflect, and document pregnant people, people who gave birth, and parents’ identities accurately on legal forms like birth certificates.
Stonewall’s director of campaigns, policy, and research, Laura Russell, notes of the case, “this ruling is a missed opportunity to send a positive message and recognize all parents, including LGBT parents, for who they are.” Not only is the ruling a missed opportunity, it contradicts current legal precedents as well as biomedical knowledge and terminology at the expense of trans and other people’s rights and well-being. Holden argues that the ruling “highlights how the law is slow to keep up to modern society.” However, it seems to me, the law is not simply slow to change, it actively resists change to reflect, uphold, and re-institutionalize cissexism to the detriment of an already margined and culturally devalued group of people.
Celeste E. Orr is a faculty member at St. Lawrence University specializing in intersex, disability, and queer studies.