JK, R (on the application of) v The Secretary of State for the Home Department & Anor  EWHC 990 (Admin) (20 April 2015)
The UK High Court of Justice has held that the right to have one's private life respected under article 8 of the European Convention of Human Rights (ECHR) does not extend to the right of a transgender woman to amend her children’s birth certificates to reflect her transition.
JK’s sex at birth was recorded as male. JK married KK and, together, they had two children: AK and PK. KK gave birth to AK in 2012, prior to JK beginning hormone treatment as part of her transition. After PK was born in 2013, JK requested the Registrar General for England and Wales (the Registrar) amend AK’s and PK's birth certificates by substituting “father” for either “parent” or “father/parent" and to record her new name.
The Registrar refused JK's request, stating that the law required JK to be registered as “father” along with her original name of CK. JK brought proceedings against the Registrar for a breach of her right to have respect for her private life under article 8 of the ECHR and, when read alongside article 14, for discrimination on the basis of her transgender identity.
The legal framework
The right to respect for private life
A public authority in the UK may not act in a manner incompatible with a right enshrined in the ECHR (section 6 of the Human Rights Act 1998). Article 8(1) of the ECHR provides that a person has the right to respect for his private and family life, his home and his correspondence.
Article 8 is a qualified right and is therefore capable of being subjected to interference by the state on lawful and necessary grounds, as reflected by article 8(2). Article 14 provides that the ECHR rights must be secured without discrimination, including discrimination on the basis of transgender identity (Goodwin v United Kingdom (2002) 35 EHRR 18 and PV v Spain (11 April 2011) (Application No 35159/09)).
Registration of births
JK claimed that article 8 requires there to be a scheme in place with respect to children of transgender parents to amend a child's birth certificate to appropriately reflect the identity and gender of that child's parents.
Under the Births and Deaths Registration Act 1953 (the 1953 Act), a birth certificate can only be altered to correct minor errors or when parents marry or enter into a civil partnership following the birth (sections 29,14 and 14A of the 1953 Act). The Registrar has no discretion with respect to the categories recorded on the birth certificate (section 29 of the 1953 Act). Parentage can be recorded under the following categories: “child”, “father”, “mother” and “informant”.
After the passing of the Human Fertilisation and Embryology Act 2008 (the HFE Act 2008), parents who are not biological parents can be recognised for children conceived by assisted reproduction. For example, a man who is not the sperm donor can be treated as the “father” of the child, where “agreed fatherhood conditions” are met, the mother is not married, and both parties consent to the man being the “father”. The term “parent” is used for arrangements where there is a second female parent.
Part 2 of the HFEA 2008 and the Adoption and Children Act 2002 provides a scheme for the issuing of parallel birth certificates for children born through surrogacy and adoption cases, enabling children to obtain information about their biological parents upon turning 18.
Justice Hickinbottom dismissed JK’s application on the basis that the interference with the article 8 right was not material and that, even if it was, the interference was justified as it fell within the state's margin of appreciation.
As the interference was justified, Justice Hickinbottom held that, in the absence of any alternative submissions, the article 14 claim (the discrimination argument) must also fail.
The interference was not material
Justice Hickinbottom accepted that JK’s rights under article 8 had been interfered with by the requirement that she be listed as “father” on AK’s and PK’s birth certificates. However, his Honour considered that this was not a material interference, as it is only in rare situations that JK and her children would be required to produce a detailed birth certificate that recorded that sensitive information. Furthermore, in those circumstances, the information is likely to be received by people who are prohibited from disclosing the information. There was also evidence that JK had publicly advertised her status as transgender through her twitter and facebook account, which undermined her position regarding her desire for privacy.
The interference was justified
First, JK submitted that the interference was not in accordance with the law. JK claimed that the Registrar has discretion whether to classify a person as a “parent”, “father” or “father/parent”. Justice Hickinbottom rejected this argument. For the purposes of the HFE Act 2008, “father” and “parent” are mutually exclusive terms. There is no discretion conferred to the Registrar, but rather a requirement to delete one or the other terms depending on the scheme relevant to the particular case. In JK’s case, the 1953 Act required JK to be recorded as AK's “father”.
The Registrar claimed the following were legitimate aims of the 1953 Act that justified interference with JK's rights:
- having an administratively coherent system for the registration of births; and
- respecting the rights and interests of other people, notably those of the partner and children of the person living in an acquired gender, including the right of a child to know the identity of his or her biological father.
Justice Hickinbottom agreed that these aims were legitimate and justified a limitation of JK’s rights. JK could not propose an alternative scheme that would adequately protect the rights of transgender parents and the rights of their children. If discretion were conferred upon the Registrar to allow the amendment of birth certificates, it could be disputed by the child, the parent's partner or another adult. Justice Hickinbottom said there is "a substantial public interest in ensuring that the scheme (for recording parents on a birth certificate) is, so far as possible, non-adversarial."
Justice Hickinbottom placed significant weight on the rights of JK's children. It should be noted that while the applicant’s two children (independently represented) fully supported the application, the Court paid regard to the potential for offspring in other cases in the future to hold different views. His Honour considered that, given AK’s birth certificate sets out her position as at birth, for JK to have a unilateral right to change that certificate would amount to a serious infringement on AK’s right to have her fundamental identity respected. The Gender Recognition Act 2004, which allows transgender persons to obtain a new birth certificate, expressly precludes gender reassignment from altering the status of the person as the father or mother of a child.
This case is the first of its kind. No international judgments or declarations of the Strasbourg Court make any explicit reference to the issue of amending the birth certificates of children of transgender persons. This is also largely absent from academic discussion or law reform proposals, reflecting that progress on transgender rights in many jurisdictions is still in its infancy. The only jurisdiction where such an amendment is possible is Portugal, where the child must consent to the change and be above 18 years of age.
Broadly speaking, this case illustrates a shift in transgender human rights jurisprudence from dealing with elementary questions of whether or not certain rights are held by transgender people, to dealing with complex inquiries as to the extent of those rights and how they are to be balanced with the rights of others.
The Victorian Charter of Human Rights and Responsibilities 2008 does not provide a right to respect for private life. However, a case such as this may be dealt with as a right to privacy issue under section 13 of the Charter, given that the right to privacy has underpinned much of transgender human rights jurisprudence.
The full decision can be found online here:
Rohan Nanthakumar is a Law Graduate at Allens.
Additional commentary by Anna Brown, HRLC Director of Advocacy & Strategic Litigation:
The outcome in this case was disappointing, particularly given that the option of describing the applicant as ‘father/parent’ appeared to be available and would have retained both an accurate reflection of the biological relationship between the child and parent as well as accommodating the applicant’s desire to be identified in her affirmed gender identity. It was also concerning that the Court was so quick to dismiss the potential for safety and security risks to transgender people and their families when producing documents for overseas travel.
However, future cases in other jurisdictions may be decided differently given the outcome appears to have been significantly influenced by the drafting of various UK statutes governing parentage (adoption, assisted reproductive technology and surrogacy); the detail of the exact administrative arrangements for types of birth certificates; and the UK’s gender identity legislation, which specifically contemplates that history will not be ‘rewritten’ in a number of respects following the successful application for a gender recognition certificate. It is also interesting to consider the potential outcome had the factual situation been slightly different (for example, a transgender man had given birth to a child) or the applicant’s arguments had focussed less on the practical risk of potential disclosure of the applicant’s gender history and had been based more on the need to respect an individual’s self-identified gender as a matter of principle.
Despite significant differences between the UK and Australian gender recognition schemes and parentage laws, this decision has usefully highlighted the need for legislators and transgender rights advocates to carefully consider the interplay between gender recognition reforms and pre-existing statutes governing parentage; and the need to also consider rights and interests of children and spouses of transgender people. For example, these issues should be squarely considered in the development of reforms to the Births, Deaths & Marriages Registration Act 1996 (Vic) committed to by the incoming Victorian Government that are set to improve the ability for transgender, gender diverse and intersex people to access birth certificates in their affirmed gender.
Given the relatively new obligations in relation to discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth) and growing trend towards the recognition of gender diversity (for example, identities outside the male and female categories), we can expect to see greater accommodation of the rights of transgender and gender diverse in this area in Australia as compared to the United Kingdom. Even in the UK, the trend towards gender neutral terms in laws and policies (for example, the availability of Mx as a third category on official documents) will hopefully continue and ultimately assist transgender parents, whether those with non-binary gender identities or those who have changed their sex marker from male to female such as the applicant in this case.