R ( Alfred McConnell) v The Registrar General for England and Wales [2020] EWCA civ 559

Court:

Court of Appeal (Civil Division)

Judges:

Lord Burnett, King and Singh LJJ

Parties:

Appellants:

1) Alfred McConnell

2) YY

Respondent:

Registrar General for England and Wales

Material Facts:

The appellant, Mr. McConnell, was born female and chose to transition to a male gender identity. As
part of his medical transition, he began testosterone therapy in 2013. Following that, he underwent
double mastectomy. A few years later, he discontinued testosterone therapy and started the process of
fertility treatment. In 2017, the appellant applied for his Gender Recognition certificate (GRA) as a male
and obtained his GRA male certificate after which he was officially recognised as male. The appellant
successfully got pregnant on April 21, 2017. He gave birth to a child named “YY” in January 2018. Even
though he was recognised as a male on his passport and the NHS reports, he was informed that he
would be registered as the child’s mother and not the father. Mr. McConnell filed an appeal to be
registered as the child’s father, but his appeal was rejected. He sought judicial review in the High court,
which was dismissed. Then he appealed in the Court of Appeal, which was also dismissed.

ISSUES:

1. Whether there was a correct interpretation of section 9 and section 12 of the GRA 2004, and
whether section 12 of the GRA 2004 has prospective and retrospective effects or does it solely
have retrospective effect.
2. Whether a declaration of incompatibility can be issued under section 4 of the Human Rights
Act?

DECISION:

Mr. McConnell appeal was rejected and he was required by the GRA's regulatory system to register as
YY's mother rather than the father or gestational parent.
DETAILED REASONS FOR THE DECISION

Addressing the first issue, the President stated that statutory construction would not aid in the
resolution of the problem. Instead of using gender-specific language like "woman”, it embraced the
solicitor's view that a mother is a human who gives birth to a child. Lord Bingham's decision that the
phrase "dog" never means "cat" was mentioned by the court. Finally, they rejected the argument that
altering the term "mother" to "parent" or "gestational parent" would amount to judicial intervention.
(Paragraph 35). Although the ordinary interpretation of Section 12 is that it does not refer to events that
occurred before the event (paragraph 30), the provisions of Section 9 would be null and invalid if it were
interpreted as having only retroactive effect, Therefore, section 12 is an exception to the general rule in
section 9. (Paragraph 31) Moreover, if the legislature wanted a law to be retroactive exclusively, it would
have stated so explicitly, as it was stated in the case of Owens v Owens that ‘the statutes are always
speaking’. Explanatory comments are an effective construction assistance, but they cannot change the
real reading of the statute, according to the court (paragraph 37). The Court rejected the Appellant's
position that the rule in Pepper v Hart should be applied and a reference to the remarks in Parliament
should be made, stating that section 9 and section 12 are not ambiguous and the wording is clear,
allowing for a reference to writings in Parliament (paragraph 38). The respondent's registration of
McConnell as the mother was proper, according to the court (paragraph 39).

The second issue was regarding an incompatibility of statute with Convention rights under section 4 of
the Human Rights Act. The judge is unconcerned about the sufficiency of the justifications presented for
the law by officials or others as it moved through Parliament; in fact, doing so would be a violation of
Article 9 of the Bill of Rights of 1689, which states that a court may not question Parliamentary
proceedings. The House of Lords described the true nature of the examination that courts must do when
deciding whether primary law is consistent with Convention rights in the case of Wilson v First County
Trust Ltd. (No.) First, the court's duty is objective: it must assess whether or not the law complies with
Convention rights, including whether or not it has a genuine goal and meets the balancing criterion. As a
result, the court is indifferent about the correctness or otherwise of what civil workers and assisting
ministers may have said during the discussion of the law, let alone afterward. (Paragraph 42)

Before assessing whether the reasonable interpretation of sections 9 and 12 of the GRA is inconsistent
with Convention rights, as indicated on request by the Complainants, we will review the history of legal
precedent in the European Court of Human Rights that led to the establishment of the GRA. (Paragraph
43)

Margin of appreciation- It denotes that a government has certain latitude in terms of law, economic
activity, or legal activity in the sphere of Convention rights. This idea allows the tribunal to take into
account the fact that the agreement will be interpreted differently in different countries due to
differences in structural and regulatory procedures.

The Grand Chamber of the Strasbourg Court found for the first time in Goodwin v UK (2002) 35 EHRR 18,
R (McConnell and YY) v Registrar General that the Convention, namely Article 8, had been breached.
Initially, the Judge determined that English law was not in conflict with the Article because no
agreement between Council of Europe states existed and the subject was beyond their scope of
assessment. In a series of decisions starting with Rees v UK (1986) 9 EHRR 56, the established rule of
English law was called into question under the European Convention on Human Rights (para 45)

UK vs. X, Y, and Z (1997) 24 EHRR 143 is the only ruling in which the Strasbourg Court considered the
status of a transgender child. It was about the law governing, example, a transsexual person's birth
certificate. Even that case differed from the current one in that the Trans man (X) did not bear the child
(Z). (para 48)

According to the trial, it is an infringement on McConnell and YY's right to honour for personal sphere
under Article 8 because the sovereign explains their relationship as a mother and son on the paper
version of their date of birth, despite their relationship being that of a father and son in socialisation.
The court acknowledges that Mr. McConnell's right under 8 is in conflict (1). (paragraph 52) Describe the
two sorts of certifications that are issued (para 56)

The essential question posed by Art. 8(2) is whether the intervention is "legally allowed." Because this
topic is handled by laws, the courts consider that this interference is plainly acceptable (para 57)

The second point to consider is if intervention has a reasonable objective. Is there a sufficiently
important purpose that the legislation aims to achieve? Is there a logical connection between the
means utilized and the goal? Will there be a less intrusive alternative? Is it possible to strike an
acceptable balance between individual liberty and the larger benefit of the community? (No. 59 in
the PARA series)

It's critical to focus on a few essential features of this case in order to address such queries. (Para 61)
First, the situation is complex and delicate in terms of social, ethical, and political considerations.
(paragraph 62)

Second, it's important to remember that it's not always as easy as reading a single legislation phrase in a
way that contradicts its natural sense. Several interconnected portions of law may be harmed if the
term "mother" is no longer used to refer to the person who gives birth to a child, as the parties
themselves pointed out during the hearing. (Paragraph 63)

This is the consequence of years of meticulous legal adjustment under a variety of statutes, including
the HFEA 1990 and the HFEA 2008. This is because the term "parent" has a specific meaning that
Parliament has allocated to it in other pieces of legislation. (Paragraph 65)

The official option of the legislature is that the person who gives birth to a child is commonly referred to
as the child's mother, even if the child was not conceived from her egg. (Section 66)
"The woman who is pregnant or has delivered a baby as a result of the placement in her of an
embryonic or of fertilisation, and no other woman, is to be regarded the child's mother," says section
33(1) of the 2008 Act in the event of IVF. (Paragraph 67)

"'Caregiver' implies a woman who births a child in obedience to an agreement," says Section 1(2) of the
Surrogacy Arrangements Act 1985.

(a) Before she began carrying the child

(b) With the intention of handing up any child borne in line with it to, and fatherhood being fulfilled (to
the extent practicable) by, other people or individuals" (paragraph 68).

"The caretaker is the kid's principal guardian till and until a judicial judgment is rendered in favor of the
intended pair," said Baroness Hale of Richmond in Whittington Hospital NHS Trust v XX [2020] UKSC 14
(paragraph 69).

A court may issue an order forcing a kid to be legally recognised as the petitioners' child based on a
petition filed by two people. This is performed by employing a "familial sequence" of events: In the case
of a single application, see sections 54(1) and 54A of the HFEA 2008. (1) (Paragraph 70).

The issue is now governed by the Adoption and Children Act of 2002 ("the 2002 Act"). The Senate has
once again declared that the person who gives birth to a child is the mother and only mother. She will
be identified as such on her birth certificate. This will be the child's only official record, but if an
adoption request is approved, it will be labeled "acquired": see Section 1(2) of the 2002 Act. Section 67
of the 2002 Act states that an acquired individual is treated as if he or she were born as the adopters' or
adopters' kid. The natural mother is no longer regarded a parent and has no parenting responsibility
after the order is granted. The Registrar General is required by Section 77 of the 2002 Act to keep an
adopting document in a separate Adopted Children Register. The Registrar General is required by
section 79(1) of the 2002 Act to establish the link between the "adopted" entry and the comparable
item in the Adopted Children Register (Section 71).

The panel claims that there is no Strasbourg legal decision that supports the petitioners' position. R V
ULLAH (R V ULLAH) (paragraph 72)

It will be able to vote on draught legislation that are normally drafted by the government and often
involve a public comment period when individuals can express a variety of viewpoints. Furthermore, no
information has been offered before this Tribunal as to how other members of the community would
respond if their child's birth certificate did not instantly identify them as a mother or father, but just as
"parent 1" and "parent 2." (Paragraph 81)

The courts have a justifiable job to play in the HRA's precise framework, as Lord Bingham pointed out in
a v Secretary of State for the Home Department. That isn't to say that the courts should disregard
Parliament's mandate to protect the HRA's rights. The second pillar is that, unlike the courts, Parliament
in our society has democratic legitimacy.

RATIO:

The appellant was obliged by the law to be registered as YY’s mother and not the father. Section 9 and
12 of the gender recognition Act were not contrary to the European Convention Rights. The Appellant’s
rights were not violated under section 8 of the Convention Rights. Section 12 of the GRA has both
retrospective effect and prospective effect. The term "mother" is a gender neutral term, given to the
claimant due to the biological part he played in the process of giving birth.