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 Births and Deaths Registration Act 1953 and the Children Act 1989 attaches to the person who gives birth, and the Court declined to substitute the word parent [64]–[65]. 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 a wide margin of judgement for Parliament [81]. 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 the statutory word mother is a functional description of the person who gives birth, which is what an inclusive-terms question in a family-leave or antenatal policy turns on. 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 — 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] 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.