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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McConnell & Anor, R (On the Application Of) v The Registrar General for England and Wales [2020] EWCA Civ 559 (29 April 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/559.html Cite as: [2020] WLR(D) 254, [2020] HRLR 13, [2020] 3 WLR 683, (2020) 173 BMLR 1, [2020] 2 All ER 813, [2020] 3 FCR 387, [2021] Fam 77, [2020] EWCA Civ 559, [2020] 2 FLR 366

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION AND ADMINISTRATIVE COURT
Sir Andrew McFarlane P

[2019] EWHC 2384 (Fam)

B e f o r e :

THE RT HON THE LORD BURNETT OF MALDON
LORD JUSTICE CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LADY JUSTICE KING
and
THE RT HON LORD JUSTICE SINGH

____________________

Between:

____________________

Ms Hannah Markham QC and Ms Miriam Carrion Benitez
(instructed by Laytons LLP) for the First Appellant

Mr Michael Mylonas QC, Ms Susanna Rickard and Ms Marisa Allman
(instructed by Cambridge Family Law Practice) for the Second Appellant

Mr Ben Jaffey QC and Ms Sarah Hannett (instructed by the Government Legal Department) for the Respondent and Interested Parties

Ms Samantha Broadfoot QC and Mr Andrew Powell
(instructed by Pennington Manches Cooper LLP) for the Intervener

Hearing dates: 4 and 5 March 2020

____________________

HTML VERSION OF JUDGMENT APPROVED

____________________

Crown Copyright ?

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30 a.m. on Wednesday, 29 April 2020.

?

The Lord Burnett of Maldon CJ, Lady Justice King and Lord Justice Singh:

Introduction

• The central question on this appeal is whether the First Appellant, Alfred McConnell (whose name was at one time anonymised to TT), a transgender man and holder of a gender recognition certificate, is entitled to be registered as the “father”, or otherwise “parent” or “gestational parent”, on the birth certificate of his son, YY, to whom he gave birth. YY is the Second Appellant. An anonymity order remains in place in relation to YY.
  
• The Respondent, who is responsible for maintaining the register of births and deaths, decided that Mr McConnell had to be registered on the birth certificate as YY’s “mother”. Mr McConnell applied for judicial review of that decision, which was refused on 25 September 2019 by the President of the Family Division, sitting in the Administrative Court.
  
• In addition, an application was made on behalf of YY for a declaration of parentage under section 55A of the Family Law Act 1986. On that application the President, sitting in the Family Court, made a declaration that Mr McConnell is YY’s mother and accordingly has parental responsibility for him for that reason by virtue of section 2(2) of the Children Act 1989. This declaration followed inevitably from the reasoning of the President in refusing the claim for judicial review.
  
• The President granted permission to appeal to this Court against both orders generally.
  

Factual background

• About a decade ago, Mr McConnell, who had been registered as female at birth and who was then aged 22 years, transitioned to live in the male gender. He began medical transition with testosterone therapy in 2013. He then, in 2014, underwent a double mastectomy. His passport and NHS records were amended to show his gender as male.
  
• In September 2016, Mr McConnell, under medical guidance, suspended testosterone treatment and later commenced fertility treatment at a clinic registered for the provision of such treatment under the Human Fertilisation and Embryology Act 1990 (“the HFEA 1990”). The aim of that treatment was to achieve the fertilisation of one or more of his eggs in his womb. Records from the clinic show that his gender was registered as “M” for male.
  
• In January 2017, he issued an application under the Gender Recognition Act 2004 (“the GRA”) to obtain a gender recognition certificate confirming that he was male. Determination of an application for such a certificate is made by a panel constituted under the GRA. The panel evaluates paper applications without a hearing. In addition to the application form and historical medical reports confirming diagnosis of gender dysphoria, Mr McConnell submitted a pro forma declaration stating that he “intend[ed] to continue to live in the acquired gender until death”. The GRA panel granted his application. A gender recognition certificate confirming his gender as male was issued on 11 April 2017. The legal effect of a certificate is that the gender of the person to whom the certificate relates “becomes for all purposes the acquired gender”: see section 9(1) of the GRA. This is, however, subject to exceptions, to which we will return.
  
• On 21 April 2017, Mr McConnell underwent intrauterine insemination fertility treatment at the clinic, during which donor sperm was placed inside his uterus. The process was successful and Mr McConnell became pregnant. He carried the pregnancy to full-term and, in January 2018, gave birth to a son, YY.
  
• Mr McConnell was required, and sought, to register YY’s birth. Upon communication with the Registry Office, he was informed, by a decision dated 22 January 2019, that he would have to be registered as the child’s “mother”, although the registration could be in his current (male) name.
  
• He challenged the Registrar’s decision by bringing a claim for judicial review on 3 April 2018. His primary claim was for a declaration that as a matter of domestic law he was to be regarded, and hence entitled to be registered, as YY’s “father”, or otherwise “parent” or “gestational parent”. His secondary and alternative claim, on the basis that domestic law requires his registration as “mother”, was for a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the HRA”) on the ground that the domestic regime is incompatible with his and/or YY’s Convention rights under Articles 8 and 14 of the European Convention on Human Rights (“the Convention”).
  
• YY issued an application for a declaration that Mr McConnell is YY’s “father” under section 55A of the Family Law Act 1986. There was a further informal application for the Court to make an order under the Children Act 1989, granting him parental responsibility for YY (this was contingent on the judicial review/declaration applications).
  
• Mr McConnell has made no secret of his identity. Indeed he has sought to raise public awareness of the situation in which he finds himself as a man who gave birth to a child by making a documentary called ‘Seahorse’, which has been shown at a number of film festivals and was broadcast by the BBC in September 2019. His anonymity order was varied in a separate judgment issued by the President on 11 July 2019:
  [2019] EWHC 1823 (Fam).

Decisions under appeal

• The President considered both Mr McConnell’s claim for judicial review, with an appended application for a declaration of incompatibility, and YY’s application for a declaration of parentage at the hearing before him. The facts were not in dispute and the Court did not have to hear oral evidence.
  
• After setting out the factual background, the relevant legislation and the parties’ submissions, the President began his analysis of the issues in domestic law at para. 123. He set out his provisional conclusions on those issues at para. 149. They were provisional in the sense that he wished to revisit them in the light of his consideration of human rights law. He did so from para. 245 and concluded that there was no incompatibility between his provisional views and the Convention rights: see para. 273 (in relation to Article 8) and para. 277 (in relation to Article 14). He therefore confirmed that his overall conclusions remained the same at para. 280, where he set them out as follows:
  

i) At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s “mother”.

ii) The status of being a “mother” arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth.

iii) Being a “mother” or “father” with respect to the conception, pregnancy and birth of a child is not necessarily gender-specific, although until recent decades it invariably was so. It is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female.

iv) Section 12 of the GRA is both retrospective and prospective. By virtue of that section the status of a person as the father or mother of a child is not affected by the acquisition of gender under the GRA, even where the relevant birth has taken place after the issue of a GRC.

Relevant provisions of the Births and Deaths Registration Act 1953

• Section 1(1) of the Births and Deaths Registration Act 1953 (“the 1953 Act”) requires the birth of every child born in England and Wales to be registered by the registrar for the sub-district where the child is born by entering such particulars in a register as may be prescribed.
  
• There is both a long form of the certificate and a short form. It is only the long form which will contain particulars about parentage, since the short certificate must not do so: see section 33(2) of the 1953 Act.
  
• The 1953 Act itself does not require the name of a father or mother to be inserted on a birth certificate, nor does it define those words. It does, however, define the words “father” and “mother”, in the context of an adopted child, as being the child’s “natural father” and “natural mother”: see the interpretation section, section 41(1).
  
• Regulations have been made under the 1953 Act: see the Registration of Births and Deaths Regulations 1987 (SI 1987 No. 2088). Regulation 7(1) requires the particulars which must be put in a birth certificate to be those set out in a prescribed form. Regulation 7(2) provides that, except as otherwise provided in the Regulations, “the particulars to be recorded in respect of the mother, father or other parent of a child shall be those appropriate as at the date of its birth.”
  

Relevant provisions of the GRA

• A person of either gender who is aged at least 18 may apply for a gender recognition certificate on the basis (so far as material) of living in the other gender: see section 1(1)(a) of the GRA. The application is to be determined by a Gender Recognition Panel: see section 1(3). Sch. 1 makes further provision in relation to such panels.
  
• Section 2 sets out the criteria for the grant of a gender recognition certificate. In the case of an application under section 1(1)(a), section 2(1) provides that those criteria include that the applicant (a) has or has had gender dysphoria; (b) has lived in the acquired gender for at least two years; and (c) intends to live in the acquired gender until death.
  
• Section 4(1) provides that, if a Gender Recognition Panel grants an application under section 1(1), it must issue a certificate. Section 4(2) provides that this must be a full gender recognition certificate if the applicant is neither married nor in a civil partnership.
  
• The provisions which lie at the heart of these appeals are sections 9 and 12 of the GRA. They read as follows:
  

“9 General

(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).

(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

[?]

12 Parenthood

The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.”

Ancillary matters

• There are two matters which we mention briefly in order to put them to one side, since, in our view, they are not germane to the essential issues which arise on these appeals.
  

• The first is that there was some debate, both in the evidence and in the parties’ submissions, around the question whether the decision taken by the Respondent in this case was different from other decisions which have been taken in the past. On behalf of the Appellants it was submitted that there had been a “volte face”. On behalf of the Respondent this was denied, although it was accepted that there may have been erroneous decisions made in the past. In our view, this debate cannot affect the true issues which arise for this Court to determine, which are issues of law. Those issues relate, first, to the correct interpretation of the legislation, in particular sections 9 and 12 of the GRA; and, secondly, to the compatibility of that interpretation with the Convention rights.
  

• The second matter is this. Before the President, and to some extent before us, there was argument about the HFEA 1990 and the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”). In particular there was debate about whether the infertility treatment which was given to Mr McConnell could lawfully be given to a man as opposed to a woman. The President addressed this issue, in particular at paras. 150-169 of his judgment. He was troubled by the fact that, despite an invitation to take part in the proceedings, the Human Fertilisation and Embryology Authority (“the Authority”) had not done so.
  

• In all the circumstances we do not consider it necessary or appropriate to comment on the question whether treatment was lawfully provided under the HFEA 1990 and HFEA 2008 for the following reasons. First, there is no dispute about this in the present case between the parties. Secondly, neither the clinic nor the Authority has taken part in these proceedings, so it would not be right to comment on their conduct. Thirdly, a similar issue of law may arise in future cases, in which it does have to be determined and it would only be right to do so after hearing full argument. Fourthly, as the President noted at para. 129 of his judgment, the issues of law which do arise in these appeals cannot turn on the happenstance of whether conception took place naturally or by means of treatment under the HFEA 1990 and HFEA 2008.
  

• It is therefore to those issues that we now turn:
  

i) The correct interpretation of the GRA, in particular sections 9 and 12.

ii) If the Court would otherwise reach an interpretation of that legislation which would be adverse to the Appellants, whether it is required to give a more favourable interpretation from their point of view as a result of an incompatibility with the Convention rights, in particular Article 8. If there would otherwise be an incompatibility with the Convention rights, the obligation in section 3 of the HRA is clear: so far as possible, the legislation must be read and given effect in a way which is compatible with the Convention rights. If a compatible interpretation is impossible, then the Court has the power (although not a duty) to make a declaration of incompatibility under section 4 of the HRA.

The issue of interpretation

• Although there has been much discussion, both in the High Court and in this Court, as to the meaning of “mother” at common law and in the relevant legislation, the critical issue which this Court has to decide as a matter of statutory interpretation is whether section 12 of the GRA is retrospective only in effect or whether it can also have prospective effect. The Appellants submit that it can only have retrospective effect, i.e. that the issuance of a gender recognition certificate does not affect the status of a person as being either the mother or the father of a child if that child was born before the certificate was issued. They submit that in a case like the present, where YY was born after the certificate was issued to Mr McConnell, section 12 can have no effect. The Respondents submit that it has both retrospective and prospective effect.
  

• In our judgement, the Respondents’ (and the High Court’s) interpretation of section 12 (namely that it is both retrospective and prospective in its effect) is clearly the correct one. This is for the following reasons.
  

• First, that is its ordinary meaning: on its face the provision is not limited to events occurring before a certificate was issued.
  

• Secondly, if it were interpreted as having only retrospective effect, that would render otiose the provisions of section 9(2). The birth of a child is clearly capable of being an event occurring before a certificate was issued. Section 9(2) therefore already caters for that situation and makes it clear that the certificate does not affect what has happened already.
  

• Thirdly, the wording of section 12 is very similar to the wording (including the tenses used) in other sections of the GRA which (as the Appellants accept) mark out exceptions to the general effect of a certificate pursuant to section 9(1). An example can be found in section 16, which deals with peerages and titles: it is clear (and the Appellants accept) that that provision has both retrospective and prospective effect after the issue of a gender recognition certificate.
  

• Fourthly, where Parliament in the same Act wished a provision to have retrospective effect only, it made that clear through express language: see the words of section 15 of the GRA. That section, which has the side note “Succession etc.”, provides that the fact that a person’s gender has become the acquired gender does not affect the disposal or devolution of property under a will or other instrument “made before the appointed day”, in other words the date when that provision was brought into force.
  

• On behalf of the Appellants it was urged upon us that we should give an interpretation to the legislation which is in keeping with contemporary moral and social norms. Reliance was placed on the well-established principle of statutory construction that statutes are “always speaking”: see Owens v Owens
  [2018] UKSC 41; [2018] 3 WLR 834, at para. 30 (Lord Wilson JSC), citing R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 387, at para. 9 (Lord Bingham of Cornhill). As Lord Bingham put it there:

“If Parliament, however, long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not considered as dogs when the Act was passed but are so regarded now.”

• We confess that we find it difficult to see how that principle of statutory construction assists in resolving the issue which arises in the present context, which is whether section 12 of the GRA has only retrospective effect. If, and in so far as the argument is that that the word “mother” is no longer to be regarded as it would have been many years ago, or even at the time that the GRA was enacted in 2004, it seems to us that is precisely what the President sought to do in his judgment, when he construed that concept to mean the person who gives birth to a child rather than a gender-specific word like “woman”. Secondly, if and in so far as the argument is that the word “mother” should be construed as “father”, that would offend against the principle as enunciated by Lord Bingham that the word “dog” cannot be construed to mean “cat”. Thirdly, if and in so far as the argument is that the word “mother” should be replaced by a new term such as “parent” or “gestational parent”, that would not be an exercise in interpretation at all but would amount to judicial legislation.
  

• On behalf of Mr McConnell Ms Hannah Markham QC invited the Court to give a more restrictive interpretation to section 12 by reference to what was said in the Explanatory Notes which accompanied the GRA. In particular, she relied on para. 43, which said of section 12 that:
  

“This provides that though a person is regarded as being of the acquired gender, the person will retain their original status as either mother or father of a child. The continuity of parental rights and responsibilities is thus ensured.”

Ms Markham emphasised that the evident purpose of section 12 was thus to ensure “continuity” but no more.

• In principle the Explanatory Notes to an Act of Parliament are an admissible aid to its construction: see R (Westminster City Council) v National Asylum Support Service
  [2002] UKHL 38; [2002] 1 WLR 2956, at para. 5 (Lord Steyn). However, as Lord Steyn said, this is in so far as the Explanatory Notes “cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed”. We do not consider that the Explanatory Notes to the GRA are inconsistent with what we regard as the correct interpretation of sections 9 and 12 but, in any event, if they were, those Notes could not alter the true interpretation of the statute. Our task is to construe what Parliament has enacted, not what the Explanatory Notes say it enacted.

• At one time it was intended by Mr Michael Mylonas QC, on behalf of YY, to take the Court to statements in Parliament, in accordance with the rule in Pepper v Hart
  [1993] AC 593. During the course of the hearing, however, he abandoned any such intention, so we need say no more about that save for this. We would observe that the provisions of sections 9 and 12 of the GRA are not ambiguous nor do they otherwise fall into one of the gateways in Pepper v Hart which would have justified reference to statements made in Parliament.

• The Respondent was correct, applying the ordinary interpretation of section 12 of the GRA, to register Mr McConnell as the mother of YY.
  

• We must therefore address the second main issue which arises in this appeal: whether the otherwise correct interpretation of sections 9 and 12 of the GRA would give rise to an incompatibility with Convention rights.
  

• In doing so we emphasise the true nature of the exercise in which a court engages when asked to assess the compatibility of primary legislation with Convention rights. There were times during the hearing before us when it appeared that there may be a misunderstanding about the nature of that exercise. For example, it was suggested to us that, when enacting the GRA, Parliament had not given any, or any sufficient, thought to the issue which now arises in this appeal and that therefore no margin of appreciation should be afforded to Parliament in this respect. It was also suggested that we should have regard to various documents such as submissions by civil servants put before ministers in the last few years, which it was said show that insufficient consideration has been given to the issues which now arise. Such suggestions are contrary to fundamental principle.
  

• The true nature of the exercise which the courts must perform when assessing the compatibility of primary legislation with Convention rights was set out by the House of Lords in Wilson v First County Trust Ltd (No. 2)
  [2003] UKHL 40; [2004] 1 AC 816, in particular at paras. 61-67 (Lord Nicholls of Birkenhead). The following propositions are apparent from that passage. First, the court’s task is an objective one, to assess the compatibility of the legislation with Convention rights, by reference to the well-known criteria, such as whether it has a legitimate aim and whether it conforms with the principle of proportionality. Secondly, that task has to be performed at the time when the issue comes before the court, just as it would be performed by the Strasbourg Court at the time when a case comes before it. Thirdly, the court is not concerned with the adequacy of the reasons which were put forward by ministers or others for the legislation as it proceeded through Parliament; indeed that would infringe the principle in Article 9 of the Bill of Rights 1689, that a court may not question proceedings in Parliament. It follows that the court is not concerned with the adequacy or otherwise of what may have been said by civil servants advising ministers at the time of the legislation being considered, still less subsequently. What matters is whether the legislation enacted by Parliament is or is not compatible with the Convention rights.

• Before we turn to consider whether the natural interpretation of sections 9 and 12 of the GRA is incompatible with Convention rights, as was submitted on behalf of the Appellants, we will summarise the development of the case law in the European Court of Human Rights which led to the enactment of the GRA.
  

The development of the case law in the European Court of Human Rights

• The traditional rule in English law was that a person’s sex was determined once and for all at the time of birth: see Corbett v Corbett [1971] P 83. It followed therefore that people who were then called transsexuals could not marry in their new gender since, at that time, a marriage required there to be a union of one man and one woman. That remained the law until Parliament permitted same-sex marriages in 2013.
  

• The traditional rule of English law was the subject of challenge under the European Convention on Human Rights in a series of cases beginning with Rees v UK (1986) 9 EHRR 56. Initially the Court found that English law was not incompatible with the Convention, because there was no consensus in Council of Europe states and the matter fell within the margin of appreciation afforded to those states. The margin of appreciation, however, narrowed. The series of cases culminated in the decision of the Grand Chamber of the Strasbourg Court in Goodwin v UK
  (2002) 35 EHRR 18, in which for the first time that Court held that there was a violation of the Convention, in particular Article 8. It was that decision which led to the enactment of the GRA.

• It is important to appreciate, however, that the sort of case which the Strasbourg Court had in mind was “the case of fully achieved and post-operative transsexuals”: see para. 93 of its judgment. In enacting the GRA Parliament took a different course. It did not impose a requirement for surgery or for there to be a transition physiologically to the new gender. Parliament went further than the judgment of the Strasbourg Court strictly required. We were informed at the hearing that in many states it was necessary for a trans person to be sterilised before being recognised in their acquired gender and that the most obvious physical attributes of the former gender had to be extinguished. In that context we note the decision of the Strasbourg Court in AP, Gar?on and Nicot v France (App Nos. 79885/12, 52471/13 and 52596/13), in which the Court held that a requirement that a trans person be sterilised in order to receive legal recognition breached Article 8 of the Convention. In any event, that is not the position which Parliament took in enacting the GRA. It is that fact which has led to the physical possibility that a trans man such as Mr McConnell can conceive, become pregnant and give birth to a child. He is by no means unique. The material before the Court shows that there are other trans men who have been able to bear children in both this country and abroad.
  

• Furthermore, as the Strasbourg Court made clear in Goodwin, at para. 93, the UK could no longer claim that the matter fell within the margin of appreciation “save as regards the appropriate means of achieving recognition of the right protected under the Convention.” That caveat was and remains important.
  

• It is also important to appreciate that Goodwin itself did not conc