R (on the application of McConnell and YY) v Registrar General for England and Wales [2020] EWCA Civ 559

In brief

Court of Appeal (Lord Burnett of Maldon LCJ, King LJ, Singh LJ), 29 April 2020, dismissing the appeals of Alfred McConnell, a trans man holding a gender recognition certificate who gave birth to YY, against the Registrar General's registration of him as YY's mother. The critical question was statutory: whether section 12 of the Gender Recognition Act 2004 (which provides that a certificate does not affect the status of a person as the father or mother of a child) is retrospective only, or also prospective. The Court held it is both [28]–[29], so that s.9(1)'s general rule that the acquired gender applies for all purposes is displaced where the s.12 exception applies [54]; the Registrar was therefore correct to register Mr McConnell as the mother [39]. The word mother in the Children Act 1989 (s.2(2)(a)) attaches to the person who gives birth, and the Court declined to substitute the word parent [64]–[65]; the Births and Deaths Registration Act 1953 does not itself define mother or father, except in relation to an adopted child [17]. The interference with Article 8 was justified: a legitimate aim in protecting the rights of others, including children born to a transgender person, and the coherence of the registration scheme [58], within the margin of judgement afforded to Parliament [81]–[82]. Disposal: appeals dismissed; no incompatibility between the GRA and the Convention [89]. Toolkit posture: the record keeps its native specificity (trans man, GRC, birth registration) — it is the appellate authority that, where the s.12 exception applies, the person who gave birth is registered as the mother despite a gender recognition certificate and is still treated as having their gender at birth [39], [54]. How that bears on an inclusive-terms question in a family-leave or antenatal policy is our analysis, not the Court's reasoning. Decision-support, not legal advice.

Key provisions

• §39 — Holding — registered as the mother under the ordinary interpretation of GRA s.12 : [39] "The Respondent was correct, applying the ordinary interpretation of section 12 of the GRA, to register Mr McConnell as the mother of YY."
• §28–29 — GRA s.12 is both retrospective and prospective : [28] sets out the critical issue of statutory interpretation; the Respondents submitted, and the Court accepted [29], that s.12 has both retrospective and prospective effect: "The Respondents submit that it has both retrospective and prospective effect."
• §53–54 — Section 9(1) (acquired gender for all purposes) is displaced where the s.12 exception applies : [54] "where an exception applies, they are still to be treated as having their gender at birth". The Court declined to treat Parliament as having de-coupled the word mother from gender.
• §64–65 — The word parent cannot be substituted for mother : [64]–[65] The word mother is the term used across the Children Act 1989 (s.2(2)(a)) and the registration scheme; [65] "it cannot simply be a question of this Court substituting a word such as" the word parent, which has a distinct legal meaning.
• §56–58, §81–82 — Article 8 interference justified — legitimate aim and margin of judgement : [56] interference under Article 8(1) accepted; [58] "It consists of the protection of the rights of others, including any children who are born to a transgender person"; [81]–[82] the margin of judgement afforded to Parliament rests on institutional competence and democratic legitimacy.
• §89 — Disposal — appeals dismissed; no incompatibility : [89] "The legislative scheme of the GRA required Mr McConnell to be registered as the mother of YY, rather than the father, parent or gestational parent." … "In the result we dismiss these appeals."

When relevant

Any inclusive-terms question in a gendered-life-event policy — maternity, antenatal accompaniment, paternity, shared parental leave, adoption — where a handbook uses the words mother, father or partner: this is the appellate authority on what the word mother means in law for a trans man who gives birth, and on the limits of GRA s.9(1) where s.12 applies. Also relevant to birth registration, parental status after a GRC, and as background to FWS-UKSC-2025 on the pregnancy and maternity provisions.