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Alsters Kelley Rights of Transgender Parents and Children in the Family Courts

Alsters Kelley Rights of Transgender Parents and Children in the Family Courts

The conversation around transgender issues is highly complex and emotive, and never more so than when added to the already stressful arena of the Family Courts. Awareness of transgender issues generally is increasing, but the law in England and Wales is not necessarily keeping pace, as trans parents and children are finding as they try to navigate the family courts. 

When advising on the rights of transgender parents and children, we largely look at previous cases and judgements for guidance. However, these cannot be seen in a vacuum. It is also essential to consider the standards of the day and how quickly social attitudes are changing. What may have been accepted - or not - 20 years ago may well have now evolved due to increased awareness and knowledge. Every court case is a step towards recognising that evolution and closing gaps in the law.  

So, what are your rights as a trans parent or trans child? In this post, recognising that terminology in this arena can be a controversial issue, we use trans as an umbrella term to describe all of those individuals who, in broad terms, cross the conventional boundaries of gender and whose gender identity does not correspond to the gender assigned to them at birth, and who identify with the opposite gender. 

Marriage and a Gender Recognition Certificate 

The Gender Recognition Act 2004 outlines a process under which an individual can apply to gain legal recognition of their gender identity should they so wish which, if successful, results in a gender recognition certificate (GRC). How would such an application impact if you are one part of a married couple?  

Where one spouse has applied for a GRC, but the couple have chosen to stay together, they would both need to complete a statutory declaration setting out their agreement to the marriage. The GRC may then be granted, and the marriage continues.  

At this time in England and Wales, if one spouse does not complete the declaration, informally known as a ‘spousal veto’, the applicant will receive an ‘interim certificate’, which can be used as grounds for divorce.  

However, as laws are reviewed and changed, the status of a marriage is becoming more complex and continues to be scrutinised by the courts. It is essential that your family lawyer is up to date with the cases that are testing the court system.  

Transgender rights and parental responsibility 

When a parent has transitioned, their rights and responsibilities as a parent don’t change. Section 12 of the Gender Recognition Act states that “The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the mother or father of a child.”   

The Act was designed to protect the rights of parents after they transition, which means the right to apply for parental responsibility is also unaffected. 

However, identification as either mother or father on a child’s birth certificate is potentially a more complex issue. UK law does not currently allow an individual to choose how they are identified. Instead, this is solely dictated by the biological role in giving birth, either as provider of the egg (mother) or sperm (father).  

This means that if a parent transitions after a child is born, they’re not able to amend their status on the birth certificate.  

The matter of R(TT) v Registrar General for England and Wales & Ors [2019] EWHC 2384 (Fam) is a case currently making its way through the court system which has a particularly interesting set of facts. The claimant (TT), a transgender male, gave birth to a child as a result of IUI fertility treatment with his own eggs. The court found that it is legally and medically possible for an individual who is legally male to give birth to a child.  

However, due to his biological role in the birth, the court found that his parental status is mother, and the claimant must be registered as such. This case is interesting for several reasons, one of which is that it has defined the term ‘mother’ for the first time. However, the case is ongoing, with the claimant intending to appeal to the Supreme Court.  

Contact and the rights of transgender children

Whilst new situations and questions continue to arise in the family court, there are areas where there seem to be little legal precedent, or guidance, to follow. Contact is one such area, where the courts have seemingly been side-tracked by the conversation of when and how a child should be informed that a parent has transitioned. Important questions, of course, but not questions that help to establish guidance in relation to contact between trans parents and children. 

The rights of transgender children are another area where there is little clarity. A number of issues have been raised in the family courts, including social transitioning, name changes, and medical treatment, but the law is very much developing on a case-by-case basis, in the absence of more specific guidance from parliament.  

Expert advice 

Given the complexities in this area of law, and the sensitivities associated with it, affected individuals should seek out legal advisers with specific expertise in this area to help them navigate their own set of circumstances.  

If you would like to talk about any of these issues, whether that be in relation to contact arrangements, divorce following transition of an individual, details on birth certificates or any other number of scenarios, then our experienced team are here to help.  

We offer a free initial consultation. Our offices cover Leamington, Coventry, Nuneaton, Southam and Stratford-upon-Avon.  Contact us on 01926 356000 or by email at enquiries@alsterskelley.com to arrange an appointment.  

 

 

 

 


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Alsters Kelley Solicitors Ltd acquire
Bonell & Co Solicitors in Stratford-upon-Avon

We are pleased to announce that on Friday 22nd January Alsters Kelley Solicitors Ltd acquired Stratford-upon-Avon based solicitors, Bonell & Co and they will now be known as Alsters Kelley Solicitors Ltd, incorporating Bonell & Co.

The Bonell & Co office in Chestnut Walk in Stratford-upon-Avon will remain open and their opening hours have been extended, with immediate effect to 9.00am – 5.30pm.

All existing staff, including partners Andrew Bonell & Alma Nicol will remain with the firm and become Alsters Kelley employees.

The acquisition of Bonell & Co provides Alsters Kelley with an excellent platform for growth, allowing us to further expand our presence and extend our range of services across the Coventry and Warwickshire region.

The acquisition marks the start of an exciting new chapter for both firms.