What Rights Do Transgender Individuals Have In The Family Courts?

What is LGBTQIA+?

In short, this is an acronym that stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, and the + holds space for the expanding understanding of different parts of the diverse gender and sexual identities.

What are the different gender identity terminologies?

Cisgender – relates to a person whose gender identity corresponds with the sex registered for them at birth

Transgender – relates to a person whose gender identity is different from the sex they were assigned at birth

Non-Binary – relates to a person who does not wholly identify with male or female genders regardless of their biological sex

Trans man – relates to a person who is a man who was assigned female at birth

Trans woman – relates to a person who is a woman who was assigned male at birth

Transition – The period when a trans or non-binary person, socially, medically, and/or legally begins living according to their gender identity.

The history of transgender cases in family law

These types of cases commonly occur within private law proceedings. It may be the case where one parent has undergone a transition, or simply that there is a dispute concerning how much time the child lives or spends with that parent.

One of the key cases in this area is J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4

Background

This case concerned an Orthodox Jewish family, whereby the father transitioned (trans woman) and left the community. The father then sought contact with the children.

The first judge stated:

‘So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalized or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.’

Following on from this judgement, and as one can suspect, the case then went to appeal. The appeal was referred to as Re M (Children) [2017] EWCA Civ 2164, where the father successfully appealed the previous decision and the Court of Appeal concluded, inter alia that the trial judge ‘gave up too easily’.

The Court of Appeal determined that it was a judge’s function to act as the ‘judicial reasonable parent’, and that it is a judge who has a positive duty to attempt to promote contact and must consider all available alternatives. The most important consideration being that contact must only be stopped as a last resort and once it is clear that the child will not benefit from such contact.

The final hearing was heard by Mr Justice Hayden, A (Children) (Contact: Ultra Orthodox Judaism: Transgender Parent) [2020] EWFC 3 (20 January 2020) where the following was determined:

“9. The father does not pursue her application now. She recognises that it would be not only counter-productive to pursue it, but emotionally harmful. The Guardian considers this to be a shaft of insight into the children’s needs and a very powerful contribution to their future well-being and stability.

10. This case presented important issues of public interest. Mr Farmer, on behalf of the press, argues that the public is entitled to know, in outline form at least, the outcome of the proceedings. The parallel analysis of the competing Article 8 and 10 rights, in the context of Article 9, all point to the correctness of that argument. All the advocates before me have agreed to such a course.

11. In delivering this short, ex tempore judgment, I am intending to bring closure to this difficult and challenging case, in the hope that this courageous family may move forward without the added burden of public comment. I have also made specific orders restricting the father’s campaign on social media. It must be highlighted that she has submitted these orders without any opposition.”

Another case in this area is R (on the application of TT) v Register General for England & Wales [2019] EWHC 2384 (Fam), where the Applicant trans man, had an inta-uterine insemination with donor sperm as a result of which he became pregnant and gave birth to a child. The applicant wishes to register as the child’s father or as the child’s parent, but the registrar general believed that he had to be formally registered as the child’s mother.

The case and issue were considered by the President of the Family Division, Sir Andrew McFarlane, who examined the definition of parent:

“… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.”

It can be agreed that there has been a move in the right direction, but it is very important for all parents, notwithstanding their gender identity to feel confident in pursuing their parental rights.

Comment

Whatever the individual family circumstances are it is extremely important for you to take specialist family law advice concerning your right as a parent, or as an individual who is heavily involved in a child’s life.

As specialist family lawyers we aim to consider your family circumstances, advise on parental responsibility, along with the steps and process of any application that may be deemed necessary where there is no agreement.

It is important to note however that Non-Court Dispute Resolution (NCDR) must be considered in the first instance, which includes mediation, arbitration, evaluation by neutral third parties, and collaborative law. The list is non exhaustive to accommodate other methods of resolution and prevent any Court action from being pursued. The only way in which this can be bypassed is if you have an exemption from attending mediation or any other form of NCDR. We aim to guide our clients in the most amicable manner to encourage a Non-Court resolution to be achieved whilst also putting the child at the forefront of any decision-making as our paramount consideration. Children will always benefit from parents who are able to work together and make decisions without Courts intervention.

How can Nelsons helpTransgender Rights Family Courts

Rina Mistry is a Senior Associate in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children’s law and children matters.

If you need further advice on the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.

For more information or advice, please call Rina or another member of our team in DerbyLeicester or Nottingham on 0800 024 1976 or contact us via our online form.

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