Case name and citation:

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

Court and Judges:

Court of Appeal (Civil Division): Lord Burnett of Maldon CJ, Lady Justice King and Lord Justice Singh.

Parties:

Appellants: Alfred McConnell and YY.

Respondent: The registrar general for England and wales.

Interested parties: Secretary of state for health and social care, Minister for women and equalities and
Secretary of state for the home department. .

Material facts

Mr. McConnell who was born with the gender female tried a change her gender and transitioned into
male when he was 22 year old. He started his testosterone surgery as it was part of his medical
transition and in 2014 he had his double masticatory. After this he was officially declared as male on his
passport and NHS’s data. Mr McConnell stopped his testosterone treatment in September and started a
fertility treatment at a clinic where he tried to conceive a child through artificial insemination. Because
the process of transition was not fully completed McConnell was in a state to conceive a child. The
artificial insemination process consists of fertilising one of his egg in his womb. McConnell applied
according to GRA to get a gender recognition certificate which will identify him as male and got his
identity as male on 21 April 2017. Due to GRA he was considered as male and gave birth to a child
through artificial insemination process.

Question of law/issues:-

Here Question arises whether it is appropriate that McConnell is the father or gestational parent of YY
secondly, is GRA’s interpretation compatible with convention rights.

Decision:-

Judges concluded that the appeal of McConnell should be dismissed because there was no violation of
his convention rights and he will called as the mother of YY

Detail reasoning

After going all the details and evidence judges of Court of appeal concluded the following results. The
president of High Court considered both appeals of McConnell and concluded that the claim of
McConnell was not right because there was no incompatibility between GRA and convention rights.
Second claim of McConnell was also thrown out and they concluded that a person who gave birth is
called as mother and word mother is not gender specific. They also concluded that the effect of s.12
GRA is both retrospectively and prospective which mean even GRA don’t effect the actual gender. These
verdict was endorsed by the court of Appeal. It was emphaticise by the applicant that section 12 of GRA
only had retrospective effect and but this was concluded that it had both prospective and retrospective
effect. It was explained that certificate issued by GRA does not restrict events that took place either back
or after it acquisition. This was the interpretation was right if the purpose was prospective only then it
parliament could had mentioned it and GRA already has a provision in section 9 of the statue. The
language used in section 12 is very similar to wording in other sections of GRA this also indicate that it
can be used in both directions

Appellant also urged to court that interpretation should be made keeping contemporary morals and
social norms in mind. Here statement of Lord Bingham was used by the court to support the argument
that s 12 has both prospective and retrospective effect. The statement supported that mother word is
no longer a gender specific and if argument is that mother would should be replaced by the father word
then according to Lord Bingham statement dogs can’t be constructed as cats. Ms Hannah invited the
court to give a restrictive approach to the interpretation of section 12 and she said the main purpose of
section 12 was to insure continuity. The explanatory notes did not shown any impact because the court
stated that parliament wanted to do so they could have added in the statue. The responsibility of court
is to interpret the act and understand the intent which is given in the statue rather than the presumed
intent of the minister during the process of making the bill. Court further stated that if parliament had
that intend they could have mention In first place but at this point it doesn’t seems like they have
intended it. Respondent in that stage was right because by applying the true natural meaning of section
12 GRA had register McConnell as the mother of YY.

After this interpretation here question arises that whether or not interpretation of section 9 and section
12 led to the problem incompatible with convention rights. The House of Lords in the case of Wilson v.
First County Trust Ltd (No. 2) [2003] UKHL 40; [2004] 1 AC 816, (Lord Nicholls of Birkenhead), stated that
the task of the court is to check the compatibility of statue with convention rights which would be done
by determining the legitimate or main aim of making the statue and determine whether it breaches any
rights which are given by convention rights. Court is not concerned with the adequacy of reason put
forward by minister or others for legislation as it proceeded by parliament but court is concerned with
the intent on which statue is passed

There is a very few incidents where European court of human rights were brought forth in the
proceeding of the court and that led towards the creation of GRA. In Rees v. the UK (1986), case it was
the first time that English legal system was question. Initially the court found that English local law is
incompatible with the convention rights but it was awarded the margin of appreciation at stage due to
no consensus found in council of Europe. Here margin of appreciation was made narrowed by the court.
In Goodwin v. the UK (2002) it was the first time court held that there was a violation of convention
rights in particular Article 8. This decision led to the enactment of GRA. In enacting the GRA parliament
took a different stance and stated the person Applying do not need to get a surgery or make any
physical transition to get a new gender which he or she wanted to acquire and it was also mentioned
that the person applying did not need to get GRA for that. After this approach court in Strasbourg in the
case of Garcon, and Nicot v. France decided that this this course taken by the English parliament violates

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rgo surgical procedure to alter their identity. In some states it was necessary for a transgender to be
sterilised before getting its acquired gender. This requirement also breaches the article 18 of convention
rights and this was not the position that was taken by the parliament while enacting the GRA. In the case
of Goodwin it was made clear that UK could no longer claim that the matter fall within margin of
appreciation. There is only one case of X Y and Z vs UK (1997) which concerned to the certificate of a
transgender where x transgender was not refused to enter in the certificate of z (child) at all by the
registrar general. Due to legislative changes X could be register as parents if both Y X get married. In this
case Strasbourg court found that there is no violation of convention rights. The case the decision of this
case was approved by the court of Strasbourg after the approval of the decision of case of Goodwin.

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First of all there was a question whether there Is an interfreance in the rights of appellant under article 8
or not. Court accepted that there is a volation of the rights under article 8 and court further disused that
whether the word “mother” is gender specific or not. There it was pointed out by the court that s9 has
some exceptions and s 12 is one of its exception. Most of the pupose law should accept person gender
according to certificate but there is an exception that the person should be treated as having their
gender at the birth. The court futher stated that it is not possibly right to say that parliament has
decoupled the concept of mother from gender and in the matter of interference court found that yes
there is an interference as court has found in the case of Goodwin. According to article 8 (2) if the
interference is justified then there will be no issues between the natural interpretation of GRA and
requiremnts of HRA. But the main question is that is the interference according to law and is there any
legitimate aim for the interfence .according to the court there clearly is. The last question arises that

wheter the interference complies with the principle of proportionality. In the case of

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