A recent Court of Appeal case has brought children disputes involving a transgender parent to the fore. This is a complicated area of family law, despite the existence of legislation designed to protect the rights of transgender parents.
Here at BLB we have seen an increase in transgender clients and recognise the importance of being familiar with the legal issues faced by all our clients.
The Current Law
Section 12 of the Gender Recognition Act 2004 states: “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 mother or father of a child.”
While this guarantees that a transgender adult will remain their child’s parent after their transition, it does not completely protect them against possible complications in issues of residence or contact. The waters also remain a little muddied for parents who conceive after transition, although generally the partner who gives birth is legally the mother and the partner who provides sperm generally the father. If you are married and in a civil partnership and your partner carries a child, you will automatically become the other legal parent, regardless of biology – although parenthood can be reassigned via a parental order.
It is the view of the court that it is in a child’s interests to have contact with both parents, and the first principle of the Children Act 1989 is that a child’s welfare is paramount. As the charity GIRES points out in its ‘Court information for Trans parents’ document, this must be balanced against Article 8 of the Human Rights Act, which requires that courts respect an individual’s private life, in theory preventing gender transition being used against them in court.
The issue for transgender parents, however, is that if a party chooses for whatever reason to argue that a parent’s transgender status has jeopardised a child’s wellbeing, a judge could agree. That is not to say such an argument is right or just, but it could be made – and could be accepted.
Indeed, the fact that so many elements of law depend on a court’s interpretation has a wide-reaching impact on many who contest custody or access, including fathers who believe they still face bias from a system that institutionally favours mothers. Transgender parents can often face similar struggles, particularly when one party has opposed transition or continues to believe that it has been a mentally damaging process for a child.
The issue of privacy
While the 2004 Gender Recognition Act affords privacy to anyone whose gender has been legally reassigned, section 22(4) of the Act does permit disclosure of such information “for the purposes of proceedings before a court or tribunal”, again opening the door for opposing parties to use the information. There is also the added complication that Gender Recognition Certificates cannot be obtained by those who were married before they transitioned without both parties agreeing to convert to a same-sex marriage.
There have also been instances, such as T (A Child) 2008, where parties have been forced to inform their children about an upcoming gender reassignment even when they had preferred not to do so until the transition had been completed. In this case, Family Law Week says that while Lord Justice Wall was “sympathetic to the applicant”, he ultimately believed that it was in the child’s best interests “to be told at as early a stage as is consistent with his or her welfare that this is what has occurred, so that the child can adjust to the change and, it is hoped, maintain a relationship with the parent who has undergone the change”.
Perhaps the most important note, however, is that the court in the case of T (A Child) 2008 did not order that contact be resumed, although the fact that there had been no contact for the previous five years was undoubtedly a very influential factor.
Mum or Dad?
Note that a trans partner who has annulled their marriage retains any previous parental responsibility, although a child’s birth certificate cannot be altered to reflect gender changes. Indeed, this was tested by the courts in 2015 when a UK transgender woman, referred to only as JK, failed to have her status as a father removed from her child’s birth certificate. The judge ruled that while refusing such a change only had a “small impact” on the Article 8 rights of JK, the impact for the child’s rights to identity under Article 8 would be impacted to a greater extent.
Wall of resistance
Unfortunately this does not escape the fact that it can in many cases be argued that the gender transition of one parent can present extreme emotional challenges for a child. For the time being, this means the door will always remain open to those who argue that contact with a transgender parent threatens a child’s wellbeing, especially in cases where the other parent has reacted negatively to the transition.
Family Law Week states that “many transgendered parents will have to overcome a significant amount of emotional and practical resistance from their ex-partners”. It cites the case of Re L (Contact: Transsexual Applicant) 1995 where a father began to undergo gender reassignment while she, then a he, still maintained contact with the child. In this case, the applicant presented as female in public but reverted to a male role in contact situations. It eventually reached the point where this was no longer sustainable, and the mother blocked all access for nine months, during which time the transition was completed.
The court ultimately ruled that “the applicant had clearly displayed sufficient commitment and attachment to warrant a parental responsibility order”, although the applicant chose to drop her pursuit of contact until such a time that the mother could accept the change – something she was adamant would never occur.
The judge in that case added that “transsexuality is a huge challenge for any family, particularly when its emergence postdates the breakdown of the relationship and when its progress is so rapid and when its disclosure is through antagonistic and not co-operative channels of communication” and that “the strength of the mother’s emotional rejection of what has happened and any therapeutic assistance was entirely understandable”.
The case of J v B (Ultra-Orthodox Judaism: Transgender)  EWFC 4,  WLR(D) 142 presented challenges of its own as it concerned a family living within a strictly Orthodox Jewish Community. In that case, the judge did not grant contact to the transgender father because it was feared that the strictly Orthodox Jewish community in which the child lived in Manchester would ostracise the children if it were permitted.
The judge delivered the verdict “with real regret”, granting what he described as the “loving father” the right to send just four letters a year to her children. The judge said he had “reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised 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”, adding that the decision was a “bleak conclusion for others facing these issues in fundamentalist communities“.
However, last month saw the same father’s appeal being allowed by the Court of Appeal, which means the case will return to the family court for a further hearing.
The Court of Appeal judges commented: “In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives”.
However, they accepted that “These are difficult areas for the holders of faith, which underscores the need for broadmindedness and tolerance in our diverse society”.
In situations where all parties are comfortable with a gender transition, the law allows for the award of full rights and responsibilities for both parents. However, in situations where one party is unhappy with reassignment, the outlook for the transgender parent remains, for the time being, an uncertain one.
Should you wish to discuss any of the issues raised in this article in the strictest confidence, please contact, multi-accredited, specialist solicitor and family mediator, Sarah Jackson, on 01225 462871 or by email at email@example.com