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Transgender birth certificate fight

Published 20/04/2015

A woman who underwent gender reassignment has lost a High Court battle over her children's birth certificates
A woman who underwent gender reassignment has lost a High Court battle over her children's birth certificates

A man who underwent gender reassignment to become a woman has failed in a High Court challenge to a legal requirement that she must be recorded as the "father" on the birth certificates of her two children.

A judge ruled that the UK's current birth registration scheme, which requires JK to be identified as the father, is both lawful and justified.

Mr Justice Hickinbottom rejected JK's claims that the requirement unlawfully interferes with her rights, and those of her children, to keep her transexuality private under Article 8 of the European Convention on Human Rights (ECHR).

The judge also ruled the requirement did not discriminate against JK "on the basis of her transgender characteristic" under Article 14.

He declared: "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."

The judge said 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 naturally conceived children - AK and PK - from her marriage to KK. All three family members were named as interested parties in the case.

JK challenged a refusal of the Registrar General for England and Wales to show her on AK and PK's birth certificates as "parent" or "father/parent".

JK had married KK in August 2007, and in early 2012 KK had given birth to daughter AK, with JK recorded on the birth certificate as the father under his former male forename.

But by this time JK "felt the desire to live as a woman", said the judge.

She was referred by her doctor to a gender clinic and changed her name by deed poll in June 2012 and dropped the title of "Mr" for "Mrs" and lived from that date as a woman.

At the clinic she was diagnosed with gender identity disorder and concomitant gender dysphoria. She started a course of feminising hormone treatment, which was still ongoing, and she was 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 wrote to his local registrar for births asking for AK's birth to be re-registered, either immediately or when a Gender Recognition Certificate (GRC) had been granted, with the registration referring to JK as "parent" rather than as "father".

JK also asked for the birth certificate of the second child, when born, also to refer to "parent". PK was born in Spring 2013.

A superintendent registrar made clear in correspondence that the law, as it stood, required JK to be registered as the father of both children.

Following PK's birth, the parents met the superintendent registrar at their local register office and JK asked to be registered as the children's "parent" or, if that was not possible, as "father/parent".

But the registrar confirmed that was "not legally possible".

The judge said the registrar suggested that JK's former male name be entered on the certificate as a previous name, but JK did not think that was appropriate "in view of her transition" and the declarations in her deed poll.

Dan Squires, representing JK, argued at a hearing at Birmingham Civil Justice Centre last December that the full birth certificates would readily reveal to anyone who sees them that JK is transsexual.

Mr Squires also argued that the Registrar General had erred in law by not exercising his discretion to record JK as parent or father/parent.

Disagreeing, the judge said the scheme of the 1953 Registration Services Act, as amended, and relevant regulations, did not give the registrar a discretion.

The judge said that, "while gender is an important element in an individual's fundamental identity", the interference with JK's Article 8 rights, and those of his children, would be "small".

That was counterbalanced by the fact that, if birth certificates were altered in the way JK wished, "that itself would interfere with the the child's article 8 right to have his or her fundamental identity recognised".

The judge said: "In some cases, such alteration may be adverse to the best interests of the relevant children."

Disputes could be provoked that were contrary to the public interest in gender change being a non-adversarial process.

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