A High Court Judge Has Ruled That "Mother" No Longer Means "Woman"
In an exclusive interview, Freddy McConnell, a trans man who has lost his legal case to be named as the father, not mother, on his baby's birth certificate told BuzzFeed News: “I will carry on fighting. This slams the brakes on progress in a way that should scare people."
Freddy McConnell thought that for him to become a father, the hardest fight would be personal — medical. First, to transition into the man he knew himself to be; then to cease testosterone treatment so that he could conceive; and finally, to give birth when right to his marrow he felt male.
But this would not even make his fight unique — other transgender men have been pregnant before.
It was where it led.
In order to be recognised as the father of his child, McConnell would have to sue the British government. This spiralled into a 16-month-long lawsuit reaching the High Court, a media stampede unleashing yet more legal action, and a landmark clash over definitions fundamental to society. All prompted by what should have been the most mundane obstacle on his path to fatherhood: a piece of paper.
Despite UK law already recognising McConnell as male “in all circumstances” before he conceived, the authorities — specifically, the Registrar General — said he must register as the “mother” on his child’s birth certificate. McConnell’s baby would grow up experiencing him as their father, but official records would deny this.
For that to change, McConnell fought to make legal history. At stake was, initially, his family — to ensure his child’s personal and legal reality were aligned — and a principle: that recognition of gender should operate as the law promised, not just until you have children.
But McConnell did not know that it would explode far beyond this.
On Wednesday, the judge, Sir Andrew McFarlane, president of the High Court's family division, ruled against McConnell and in favour of the government. Transgender men who give birth will have to register as “mother” on the birth certificate — even if they were recognised as male prior to conception.
But the ruling has implications for almost anyone. According to the judgment:
- “Mother” is no longer a gendered term. “Mother” therefore does not equal “woman”.
- A “mother” is a person who gives birth, regardless of whether she has a genetic link to the child (for example, if the eggs are from another woman).
- A "father" is also "not necessarily gender specific".
- Transgender people may now only be recognised in their acquired gender until they have children.
- It may have been unlawful for McConnell to be given fertility treatment designed for women — therefore trans people may no longer be able to access it.
The judge said “there is a material difference between a person’s gender and their status as a parent". He outlined why he concluded that mother does not mean woman.
"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’.”
There can be, he said, "male mothers and female mothers" and that "the term 'mother' is free-standing and separate from consideration of legal gender". But he also acknowledged that for McConnell to have to register as the mother would "adversely impact upon [his] human dignity and his human freedom".
According to McConnell’s legal team at The 36 Group, the judgment has “significant and far-reaching implications”. These include: Previous legal protections for trans people, as outlined in the Gender Recognition Act, could be unpicked. Proposed reforms to surrogacy laws which would allow mothers who use a surrogate to be on the birth certificate will be halted. Same-sex parents would, similarly, be blocked from birth certificates. Fertility clinics will not be able to offer treatment to trans people. And an entire legal consultation on surrogacy by the Law Commission could be under threat.
The judge has, in effect, redefined motherhood. By denying that women are the gender that constitutes mothers, his ruling could unite trans rights campaigners, anti-trans activists, and feminists of all persuasions against it.
Family law experts have already criticised the judgment. Hannah Saxe and Scott Halliday at Irwin Mitchell said: "It cannot be right that a person can be legally recognised as male in some respects, such as on a Gender Recognition Certificate, but not in others." They said the "birth certificate should reflect the reality of their family situation. We allow individuals a legal route to acquire gender; we must not then fall short when they wish to use those rights in practice. Otherwise, why bother in the first place?"
McConnell will appeal. In an exclusive interview with BuzzFeed News, he and his lawyers said they will take it to the Supreme Court, that there is too much at stake now.
“It is bigger than us,” he said. “I will carry on fighting because this is threatening to set things back for LGBT people — as well as for society, gender, and how families are created. This slams the brakes on progress in a way that should scare people.”
From the outset of the case last year, what electrified interest in McConnell’s story was how many reporters had framed it: that because he is single, and not in a relationship with a woman (on account of him being gay), the box for mother on the birth certificate would be left blank. If successful, therefore, his would be the first child born in the UK without a named mother. Or, as some have expressed it, inaccurately: the first baby without a legal mother.
The resonance of which is profound, regardless. The implications are vast. And the definitions quake, too: What do we mean by mother?
In a case that spans family law, human rights law, fertility rights, and transgender rights, the arguments within would expose a new landscape in the developments surrounding gender identity.
It would expose McConnell, too.
Two months before the judgment, McConnell, 32, stood in his lawyer’s office in central London awaiting news. Slight and skinny — the stress drained fat from his cheeks — he hunched over his phone to show BuzzFeed News a video clip. It is his child, from behind, dancing to music, hips jiggling in time with the beat. McConnell beamed, incredulous, as if witnessing magic.
The moment of relief was brief. The following day, McConnell emailed to say he had lost the battle to protect his identity. Four newspaper groups who had challenged the anonymity granted to him and his child (by the judge) had won and were now free to publish his name and photograph, although not his baby’s. He said he feared for his family’s safety.
McConnell has declined the requests to discuss the case from every other news outlet over the past year, including from the Guardian, the newspaper for which he works as a multimedia journalist. British newspapers either have an “explicit agenda to defame trans people”, he said, or an ideological stance preventing accurate, balanced reporting. “That’s all I want. A fair hearing.”
We talked for many hours, over six months. It was heated at times; fraught at others, as stress or painful memories intrude. He seemed, once or twice, close to breaking. For far beyond the legal arguments and the implications of this case is, in the end, the life of the person who brought it, and therein the most revealing question of all: Why?
It is early March the first time we meet. McConnell sits with his lawyer in the firm’s stark central London office, remembering the moment that upended everything. He had joined an online birthing group for transgender people.
“Someone posted, ‘Does anyone know what can be done about the fact that I’m going to have to register as the mother?’” he says. Like the commenter, McConnell had kept his uterus, making pregnancy possible, and desperately wanted children.
“I remember reading it and thinking, Oh fuck, seriously? Almost immediately I was like, No, no, no — this real sense of, that’s not fair.”
He did not know then, before he had even tried to conceive, where this would all end. But before we reach the escalating consequences, we reverse to the very beginning.
McConnell tilts back in his chair a little. “From a very young age, I felt what I now see as gender dysphoria,” he says, referring to the intense discord between the inner self and outer body that leads trans people to transition. His voice is gentle and cello-deep. Reddish facial hair punctures neat features and a snowy complexion. He smiles a lot but is serious, earnest, with a benign, almost geeky air.
McConnell grew up in Deal, a small town on England’s south coast, where he still lives.
“I was gender nonconforming, was always read as a tomboy,” he says, “and when much younger, I would talk about being a boy or wanting to be a boy, and then stopped that once I realised it was socially unacceptable.” Whenever he would play make-believe, the characters he chose “would always be male”, he says. Some were long-running, enabling him to live in his head in a way that was manageable. “That’s where I felt most comfortable.”
Beyond this, McConnell struggles to convey fully what such dysphoria is like, aware how hard, perhaps impossible, it is to explain what being trans really is. The alienation between mind and body that most will never experience. Its profundity. Like explaining grief to an innocent.
What he can retell more easily, however, is how the world around him responded. He was bullied for being masculine. “I certainly got the message it wasn’t OK,” he says. Terrified, he buried everything until university. “I didn’t know that transgender men existed,” he says. Only in adolescence did he have a burgeoning sense of what a trans woman was and “that being shameful and scary”. Later still, by chance, he saw a documentary about a trans teenage boy.
“I had this moment of intense and incomparable realisation — an epiphany,” he says, his face brightening. There was a future.
As a young adult, and with support from his mother Esme, he began living as a man. He was referred to a gender identity clinic at 25, which provided him with testosterone. Often referred to as “T”, it’s the standard hormone given to trans men that makes the voice break, hair grow, and the face and body masculinise. It enabled for McConnell the most valuable thing of all: His physical self was beginning to align with his sense of self.
“Your life is on hold until you transition,” he says.
Without realising it, his posture reveals the difference it made. When talking about the period pre-transition he stoops, arching in on himself, but when recalling the hormonal and physical shifts, he rises, a released jack-in-the-box. He had “top” surgery, the reconstruction of breasts to form a male chest, at 26.
Beyond his gender, however, there was another unshakeable feeling that led him here to this room: the desire for children. “As early as I can remember,” he says, smiling, “I’ve always been an enthusiastic babysitter. I find it easy to communicate with them, to be on their level.” As a teenager, however, he was split between imagining lots of children and not being able to envision himself in that picture.
“You can’t be what you can’t see,” he says.
Only a few years ago, it was common for doctors to believe that for trans men, taking testosterone led to infertility. One doctor told McConnell this, so he considered delaying transition to become pregnant. But this seemed unmanageable, he says. “As much as I wanted to be a parent one day, I also knew [transition] was what I needed to do first — to be settled and happy in myself before I could become a good parent to someone.”
After transition, pregnancy seemed, in both senses, conceivable. “I felt so clear about who I was that I actually wanted to do it that way,” he says. He also knew he wasn’t alone. There was the case of Thomas Beattie, the American who, in 2007, became the first trans man to give birth after gender affirmation surgery, and others whom McConnell discovered and spoke with online.
It was around this time that he also discovered the forum featuring the comment about having to register as the mother. “I thought, I’m going to have to try to change this,” he says, and so he sought out a law firm that might help. He found the oddly named A City Law Firm who agreed to work for free.
But why was it so important? Why consider suing the government to ensure you are recognised as the parent or father?
“Because that is who I am,” he says, “and that is our reality. On the basic, primal level, that feels true and important. If birth certificates weren’t important, then their status wouldn’t be enshrined in law.”
It is, he explains, much more than a piece of paper. It’s about the future relationship between him and his child — how that will feel to both of them, how his baby will know him: as their father. He sued today to safeguard tomorrow.
But he was also not expecting to win. “I need to be able to turn to that child when they see their birth certificate and see that it’s wrong and say, ‘Look, I’m really sorry but I tried’,” he says. At this, and for the first time, McConnell’s eyes fill.
He stops for a moment and breathes, before continuing in the tenderest of voices, as if imagining the conversation he would have to broach with his child: “‘This is your birth certificate, it’s incorrect, and this is why and isn’t that unfair? It’s one of the things you have to deal with — that we have to deal with.’” His voice cuts out.
Before we explore the legal arguments surrounding his situation, there is the pregnancy to discuss. It was considerably more complicated than McConnell feared.
He came off testosterone — the very drug that had transformed his life — because of the advice about it preventing conception, and in April 2017, in quick succession, he received both the gender recognition certificate and artificial insemination from a sperm donor. It worked. McConnell, a man by law, was now pregnant.
The physical effects — endless nausea — were dwarfed by the psychological.
“The lack of testosterone in my system immediately plunged me back into a world of dysphoria and wanting to hide away from the world,” he says. “When I got a positive pregnancy test I was relieved but nervous, [thinking], This is about to get a lot harder. Am I strong enough? There’s still such a tiny number of trans men who do this.”
But he continued. “On the one hand, I loved the sensation of growing this life inside of me,” he says, but the hormonal storm was unlike many have ever encountered: a plummet in testosterone colliding with a spike in progesterone and oestrogen.
What that meant at bedroom-floor level was “being a mess”, he says. “A total mess. I will never be able to pick apart what of that is about the hormones surging through your body because you’re pregnant, or the hormones that weren’t surging through my body because I was a pregnant trans man. Whatever it was, made it incredibly difficult — and for those around me. I was feeling all that but making quite a big effort to not show it.”
Being pregnant also meant being in environments that assumed, understandably, he was a woman. “It’s not anyone’s intention, but you can’t access any information or advice online where it doesn’t feel like it’s not talking about you,” he says. “You just feel invisible and exhausted and dysphoric.”
McConnell’s body also changed, obviously, albeit not as much as it could have done; his bump was relatively small. He wore baggy clothes. “Men with beer bellies look very similar to pregnant trans men,” he says. His mother would text to reassure him: “I’m looking at a man with a beer belly and he could definitely be a trans man!” McConnell laughs.
The swelling bump, gender dysphoria, and hormonal Catherine wheel became increasingly unbearable, making him retreat as much as possible. Because of the lack of testosterone, he noticed slight changes in his voice, too, meaning that for the first time in years, people would mistake him for a woman.
Throughout the nine months, no one in his small town thought he was a pregnant man. They either assumed he was a man who was not pregnant, or a woman. “I just kept it within a very small group of people,” he says.
There was something else, though, ensuring McConnell became more isolated. Over the last two years, British newspapers have published multitudinous anti-trans stories, prompted in part by the government’s consultation on the Gender Recognition Act. The effect on McConnell, pregnant and trying to cope, was profound.
“I recognised how damaging it was for my mental health,” he says. “I felt so vulnerable and fragile, and my sole priority was the health of this baby I was carrying.” Because such material then becomes reposted by the well-intentioned to alert others, it could become inescapable. “So I deleted my Twitter account, changed my name on Facebook, and unfollowed most of my trans community. I lost access to a lot of my community because I was worried about being exposed to that.”
He took parental leave early and began making arrangements: meeting with the midwife, visiting the birthing centre, and providing a birthing plan for staff so they understood his situation.
Initially, McConnell thought he wanted to rattle through childbirth as quickly as possible — aware of the psychological complexities — but when labour began, something else surfaced: He wanted to experience it fully. “To leave space for all of that stuff to exist together,” he says.
He doesn’t normally talk about the delivery itself. “But I gave birth in the water and it was amazing,” he says, eyes flickering up in almost ecstatic recall. “Nothing will ever beat that.” Dysphoria melded with euphoria. “For me,” he says, “it was the pinnacle of human experience.”
As McConnell lay in the hospital with the baby in his arms, the new parent realised how important it was to savour everything. “To honour the fact that I have this incredible bond with my child because I gave birth to [them],” he says. “I’m not like other dads, but that doesn’t mean I’m any less of a dad.”
He frowns after saying this, in case it could offend mothers. “This is not about erasing the fact that it’s usually women who go through this,” he says, “I don’t ever want to be seen to be coopting this experience away from women. It’s just that someone like me can also go through this and it can be wonderful.”
The first two weeks, he says, were blissful — carrying the baby in a sling, strapped to him constantly.
But then he had to register the birth.
There was a small chance, he thought, that the online system might let him register as the father, so he put his name in the father box on the form, and marked “XX” under mother. (In Britain, the mother space cannot be left empty, but the father one can be.)
Soon after, McConnell received a phone call from the register office. An email followed, clarifying: He would have to register as the mother.
He phoned Andrew Spearman, his solicitor. Spearman confirmed McConnell’s fears: The only way around this was to take the Registrar General to court.
The legal process began. The baby was only 2 weeks old. “I had to muster strength I didn’t really have,” he says. Having his and his child’s anonymity protected by the court helped, however. He would be referred to only as TT and his baby as YY.
McConnell did not know then that anonymity wouldn’t last — even though it was almost inevitable. He had begun filming a documentary about his personal experience of becoming a father, called Seahorse. It would not mention the legal case and, he expected, wouldn’t be released until long after the case concluded. “I thought I could keep them separate,” he says. The calculation would prove flawed.
But before he had to face that, there were two preliminary proceedings for the birth certificate lawsuit in 2018, which led to a full hearing at the High Court in February this year. The legal arguments fanned out from four sources: McConnell’s legal team, the government’s legal team, representatives of McConnell’s baby, and independent experts.
The arguments were, initially, straightforward. McConnell’s team said that because the British government had already officially recognised him as male with a gender recognition certificate before he conceived, and because the law states that this is “for all purposes”, then it must cover parenting. A recognised trans man who has a child is therefore the father. To deny that would be to discriminate on the grounds of gender and pregnancy.
They argued that forcing McConnell to register as the “mother” would out them both, as a child with a trans parent, forever revealing this to any authority that requested the certificate.
The baby’s legal team agreed: that the current situation is a breach of the baby’s right to a private and family life. “The government has produced no evidence that registering the Claimant as YY’s father would not be in YY’s best interests,” papers submitted to the court concluded.
The independent experts added that making McConnell register as mother would constitute “profound incongruence with the child’s familial reality” which “has the potential to have a harmful impact on the children of transgender parents”.
But the government— lawyers for the Registrar General — replied that the current system simply does not allow McConnell to be declared the father or parent because in law “father” means the sperm provider or the male partner of the mother. And “parent”, meanwhile, can only be used for the female partner of a woman who gives birth.
The arguments then became messy. Because McConnell conceived through artificial insemination, a row ensued over the Human Fertilisation and Embryology Act 2008 because of how it defines mothers who receive such treatment. McConnell didn’t fit the description, as he used his own eggs, but for the government that mattered not: He gave birth.
From here, the case began to fling open doors in family and human rights law, exposing behind each one a series of jolts.
Jolt one: Many would assume that the government was defending the traditional idea of what a mother and father are — but it was McConnell’s team who argued that a “mother” is female, that it is a gender-bound legal term just as “father” is. (Furthermore, they reasoned, a trans man whose wife gives birth is registered as the “father”, so why not if they themselves give birth?) Yet the government stated the opposite. “A man can be, and in this case is, a mother,” argued Ben Jaffey QC.
The second jolt was what a birth certificate really is. It is commonly considered a record of biology or genetics. But the case exposed the extent to which this is no longer true: that since the 1990s, when surrogacy and same-sex adoption became more routine, the certificate has become a legal record.
Through this, McConnell’s position looks less unorthodox, his team argued. Not only are there babies in other countries registered with a father and no mother (two recent cases in Sweden, for example), there will also be children in the UK already in this situation — who were born to a surrogate in a country such as the US where the mother need not be named on the birth certificate.
The third jolt was the extent to which nowhere in the law had anyone considered that a transgender man might become pregnant. Twelve years after the first known case of a man giving birth after transitioning, there was still no legal provision — a no (trans) man’s land.
But finally, the government’s lawyer fought on a different front altogether: the hypothetical. What if the child grows up and disagrees that McConnell is their father? Would they be able to change the birth certificate? And what if McConnell had a partner who disagreed that McConnell should be registered as the father?
In his lawyer’s office after the hearing, McConnell scorns this argument. “It’s a bit like saying, ‘What if two gay parents’ child grows up and is homophobic and doesn’t think gay people exist?’ They’re still your parents and they’re still gay.”
Even so, the emotional resonance encircling this case will be impossible for many to ignore: mother, motherless. Previously, our depictions of the latter, aside from orphans, are in Greek mythology: the primordial deities born from Chaos — the abyss. To be motherless is to be from the void. Loveless.
Except that, says McConnell, many babies already do not have a mother, even though all were delivered: children raised by two fathers or one father, or whose mother is a surrogate or is dead. Children who are abandoned.
“That idea of sacred motherhood is quite sexist,” says McConnell. “Where does that leave women who don’t want children? What does that say about gay fathers? And men who raise children?”
Instead, he says, objections to a birth certificate with no named mother are a smoke screen for something darker, “a front for a more visceral, slightly ickier reaction people are having when they see any man raising a child single-handedly or in a gay relationship.”
McConnell doesn’t mind whether he is allowed to register as the father or the parent on the birth certificate: For him, either is right. “Ultimately, we’re all parents, and that’s what matters. There needs to be a solution for everyone.”
But he is aware how tectonic some of this feels to some. “I’m sure this seems like a huge, bizarre change,” he says, “but maybe 50 years ago people would have said the same thing about equal marriage.”
It is also standard for those at the vanguard to be confronted. While McConnell thought he could protect himself and his child by making the film while anonymously suing the government, the newspaper groups were, as a result, able to mount a strong challenge: that the public might well assume it was the same person in the documentary and in the court case, so why shouldn’t they link it?
In July, the day after the papers (including the Daily Telegraph, the Sun, Daily Mail, and Daily Mirror) won, the Telegraph splashed his picture on the front page and commissioned a writer to accuse him of “misogyny” for imposing “motherlessness” on a child, implying that it was all for McConnell’s selfish desires. The writer had not spoken to him.
That night, a screening for Seahorse, his documentary, was held in Soho. It provides, in its domestic intimacy, a further surprise: how relatable his extraordinary life is. At a dinner party, the camera closes in further and further on his face, eyes sinking, collapsing, a thousand miles from the chatter. The alienation pierces. Enough to make you flinch.
Afterwards, Esme, his mother, approaches BuzzFeed News. She talks about hers and McConnell’s lifelong feminism, and how horrified she is by those who wish to exclude and demonise trans people like her child. She has a great line in the film: “Everyone should experience pregnancy. Especially men.”
Two months later, the judgment comes through, and as we sit again in his lawyer’s office, the ramifications of him losing begin to hit.
First: The Gender Recognition Act, as clarified by this judge, now only recognises a trans person’s gender if they do not have children. If they do and register as the parent in their acquired gender, they will be doing so unlawfully, even if they have a Gender Recognition Certificate. In other words, a trans man whose wife gives birth cannot be listed as father. Similarly, a trans woman will have to be listed as father.
“The identities of trans people get invalidated as soon as they become parents,” says McConnell. This is a “farce,” he says, and “de facto sterilisation”. British transgender people would have to knowingly forego their gender identity if they want children.
Second: Because “mother” is, from today, defined as the person who gave birth, a consultation currently underway into surrogacy reforms is under threat. The review is being conducted by the Law Commission, a statutory, independent body designed to ensure laws are fair and effective. A key proposal under consideration is to enable those who become parents through surrogacy to be named on the birth certificate as mother and father. That cannot now happen because only the surrogate could be registered. And the certificate would have to name a mother, thereby precluding same-sex male couples. The entire review will likely be halted.
Third: The judge questioned the lawfulness of McConnell receiving fertility treatment after being legally recognised as male. In so doing, this could effectively bar transgender people from fertility clinics as they would now only be allowed to have treatment in the gender they have legally acquired. McConnell, for example, would only be entitled to men’s fertility treatment, which would have no effect. The law would treat him as a man when he walked into the clinic, but if he were to father a child, he would then be considered the mother.
“Now that we’ve opened this can of worms we have a responsibility to fight it to the bitter end to make sure these ideas, interpretations, and definitions aren’t allowed to stand,” says McConnell. “I feel angry and disappointed. The judgment has caused an even bigger problem. The archaic system presumes to understand people better than they understand themselves.”
The judge also made no ruling on whether trans fathers could use the term “parent” on the birth certificate, despite the case that was brought arguing that either “father” or “parent” would be a satisfactory resolution. This may also form part of McConnell’s appeal.
His case, still unfolding, will be studied not only by law students but also by judges, politicians, and policymakers for years to come as its tentacles unfurl. A further hearing at the Court of Appeal or the Supreme Court is possible within months.
The stress of it all, however, has struck just when McConnell needed it least: the first year of his baby’s life. He does not complain. “Ultimately,” he says, “I just care about what’s right for me and my child.” And that feeling, emboldened by a sense that it could help other trans people, that “fundamental ‘this is right’ has carried me through.”
Is it worth it? Not just the case but what prompted it? Is parenting what he hoped?
“Way, way more,” he says, suddenly transported. He smiles and looks out the window onto a quiet London street. “It’s just… I love it. Every tiny thing that [the baby] does.”
One question remains, then — perhaps the most complicated of all: With everything that has happened, the court case, the coverage, the psychological and physical storm, will he become pregnant again?
McConnell looks flummoxed. “I cannot imagine ever voluntarily putting myself through this again,” he says. “Going off testosterone. Losing my sense of self…”
There is a “but” coming. His shoulders sink. The birth was “such a profound experience”, he begins, eyes darting back to that moment, before lowering. “It makes me sad to think I would never experience that again.”