Whilst in London, I came across an interesting story about a case pending in the High Court on a legal issue that had never been raised in a court in England and Wales before (reported in The Times, September 19, 2018, thetimes.co.uk). The complaint was filed by a transgender man who is attempting to be registered as a baby’s father after giving birth.
At the time of the baby’s birth, the single parent was a woman but now lives as a man after undergoing surgery. The man had been biologically able to become pregnant and give birth but had legally become a man after the baby was born. He now wants to be identified as the baby’s “father” or “parent” on a
birth certificate.
However, a registrar told him that the law requires people who give birth to be registered as mothers. The transgender man took legal action after complaining of discrimination but it may be months before a full hearing on the merits. In the meantime, the transgender man cannot obtain child benefit because no birth certificate had been issued. The man claims that forcing him to register as the child’s “mother” breaches his human right to respect for privacy and family life. His identity was not revealed (by the media) for legal reasons.
Lawyers (in London) say that other transgender men have given birth but have been registered on birth certificates as mothers. The case has been the subject of several hearings in the Family Division of the High Court in London. Lawyers representing the transgender man are lined up against counterparts representing the Registrar General for England and Wales and government ministers.
Justice Holman, the presiding judge, was told that the baby had been given a passport because British citizenship had been established. However, Ben Jaffrey, who is representing ministers told the Judge that child benefit had not yet been granted. Mr. Jaffrey said that a birth certificate could not be issued until the judge had ruled on the complaint. Justice Holman said that the man was taking a stand and “mounting a head-on challenge to a wall of legislation.” He suggested that since the complaint involves a novel legal issue, the most senior family court judge in England and Wales (a certain Andrew McFarlane) should be the one to oversee the trial and make a decision.
At the preliminary hearing sometime in June this year, the presiding judge stated that if the man won his fight, ministers might have to consider changing the law. This novel and complicated legal challenge could result in the baby becoming the first born in England and Wales to not legally have a mother, lawyers for the transgender man argued. Since there is no mother registered in the baby’s birth certificate, no birth certificate has been issued and consequently, no child benefits have been granted to the man.
In the Philippines our Supreme Court has recently held that a transgender woman cannot have his birth certificate changed to reflect his gender as female since at the time of birth his gender was male. Reconstructive surgery is not a ground for correcting the birth certificate since there was no “error” in the entry in the birth certificate, which is merely a recordal of the facts at the time of birth of the child. The Supreme Court’s ruling is clear that the gender one is born as will remain his/her gender in the birth certificate forever.
If a similar legal challenge like the London case were to be brought to our Supreme Court, it would be a more complicated legal issue. If the father of the child were to undergo reconstructive surgery after the child was born, would it result in the child having two mothers instead of one. The Supreme Court ruling to the effect that you cannot alter the recorded facts at the time of birth (unless mere clerical or typographical error) would seem to indicate that the transgender man would always remain the father of the child in the child’s birth certificate even if he were to subsequently become a transgender woman.
Our Constitution is clear when it states that there shall be no discrimination on account of gender. Our laws are, likewise, clear on the parental rights and duties of a father and mother over a child. The legal hiatus it seems would be a situation when a child has two mothers or two fathers on account of a subsequent sex transformation of the father or mother.
Legislators should review our existing laws to take into account the rights of transgender parents. Our Anti-Discrimination laws should be revisited. Although our courts have been mandated by law to always rule “in the best interests of the child,” the transgender parent issue has not yet been challenged before the Supreme Court.
My personal view is that a good mother or father would always be a good mother or father—transgender or not! And a child deserves the love of parents—whether that be a mother and father, or two mothers or two fathers!
Bottom line, what is paramount is the best interest of the child and the parental love of the parents—transgender or otherwise!