Trans rights and family duties

Our understanding of trans issues in Scotland is evolving, in particular within the context of family law. However, is our legal system keeping pace, and is it capable of adapting to this more modern understanding of a family?

“Trans” is an umbrella term which encapsulates a diverse spectrum of gender identity. Broadly, it describes a person whose gender identity does not conform to the sex assigned to them at birth (“sex” being the traditional view of binary biological/anatomical/chromosomal attributes of male and female, and “gender” being the socially constructed roles, behaviours, expressions and identities of individuals).

Legal change to an individual’s gender

Domestically, our response to trans related family law matters has evolved over time.

On 4 April 2005, the Gender Recognition Act 2004 came into force. It allowed, for the first time, individuals over the age of 18 in the UK with gender dysphoria to change their legal gender.

The Scottish Government has committed to legislative reform which will alter radically the process for an adult to apply to change their legal gender. Currently, an adult requires to provide medical evidence confirming a diagnosis of gender dysphoria and evidence that they have been living in their acquired gender for (in most situations) at least two years in order to apply to the Gender Recognition Panel for a gender recognition certificate. The Gender Recognition Reform (Scotland) Bill seeks to reduce the time period applicants are required to live in their acquired gender from two years to three months (with an additional three month reflection period). It also proposes to abolish the requirement for a medical diagnosis or medical information in support of an application.

However, the legislation remains confined by a traditional binary approach to legal status of gender, thus not allowing individuals to identify as non-binary. Those who were assigned as biological males at birth can change their legal gender to female, and vice versa. The Scottish Government has no current plans to seek reform of the law as regards the legal status of those who identify as non-binary. Whether this bill, passed by the Scottish Parliament, will be enacted is a contentious issue, given the Scottish Secretary’s decision to make an order under s 35 of the Scotland Act 1998 preventing the bill from proceeding to Royal Assent, claiming adverse impact on Great Britain-wide equalities legislation – a decision currently subject to legal challenge.

Impact on trans families

The approach to legal gender in Scotland can impact on trans families.

When a person’s legal gender changes, their legal status as parent of their child does not change. The legislative intention is stated as protecting the existing legal rights of parents of children and to ensure consistency in the birth registration scheme.

Persons whose legal sex was assigned female at birth but who do not identify as such in terms of their gender, may nevertheless be able to conceive and give birth to children. In the English case of R (McConnell) v Registrar General [2020] EWCA Civ 559, the court confirmed that a person whose legal gender was male who gave birth to a child must still be registered as the mother on the child’s birth certificate. If a similar approach were to be adopted in Scotland, which seems likely, it would reaffirm the approach of the birth registration system as recording the gender of a child’s parents based on the gestational parent.

However, this approach can be contrasted with the approach in decisions affecting a child’s welfare and upbringing, in which the concept of parenthood is far more flexible. There is no exclusive focus on genetics, nor is there a binary approach to parenthood. As Baroness Hale observed in Re G (Children) [2006] UKHL 43, there are different concepts of parenthood, which she defined as genetic, gestational and social/psychological parenthood, each having a rather different legal status.

Internationally, there is growing support for the protection of trans parents. In 2021, the European Court of Human Rights held unanimously in AM v Russia (Application no 47220/19) that there was a violation of ECHR articles 8 and 14 in the restriction by the domestic court of the parental rights of a trans woman and deprivation of contact with her children on the grounds of her gender identity.

Trans issues in relation to children: overview

The Scottish Children and Young Person’s Commissioner supports a child’s right to gender identification. Indeed, they were in favour of reform to the 2004 Act to allow children to change their legal gender on a case-by-case basis, but this approach was ultimately rejected by the Scottish Government.

The issue of gender dysphoria among children remains contentious in Scotland and elsewhere.

Last year NHS England issued guidance following a review into child gender care, which concludes that most children identifying as transgender are going through a “transient phase”. It recommends that social transitioning should only be pursued in severe cases.

This is in contrast to guidance issued to schools by the Scottish Government in 2021, which advises that children should be supported to socially transition and condemns challenging or trivialising gender self-identification for children. It provides guidance, for primary and secondary schools, on how children can change their name on their school record, and circumstances where this can be withheld from a parent, as well as dealing with the use of pronouns, uniform policies, toilet provision and plans for residential trips, when dealing with transgender children.

For family lawyers, an interesting element of the Scottish guidance is the extent to which, if any, it may conflict with the responsibilities and rights of parents, who have duties to direct and guide their children and make decisions which they consider to be in their best interests. This guidance, on one view, deprives parents of input on gender identity if a child elects to identify at school as a different gender and requests that their parent not be informed.

In her article “The rights of LGBTI children under the convention of the rights of the child”, Nordic Journal of Human Rights, 33(4) (2015), 337, Kirsten Sandberg argues that while gender identity is not explicitly mentioned in the UN Convention on the Rights of the Child, it is part of the child’s identity and self-determination. Children, therefore, have a right to participate in decisions by expressing views, and once a child is old enough to understand the consequences of a decision, they should have the final say.

Medical intervention for trans children

Equally controversial is a recent English decision around medical intervention for children experiencing gender dysphoria. Bell v Tavistock & Portman NHS Foundation Trust [2020] EWHC 2374 concerns the referral of children under 16 and young persons aged 16 and 17 with gender dysphoria to NHS trusts for the prescription of puberty blockers. The court had to consider whether children involved were capable of providing consent to such treatment. The court concluded that it was highly unlikely that a child aged 13 or under would be able to provide consent, and doubted whether a child aged 14 to 16 would be able sufficiently to comprehend the long-term risks and consequences of treatment. Even for children aged 16 and 17, it questioned whether judicial authorisation should be sought before starting treatment. The court declined to comment on whether parents could consent to treatment if a child could not lawfully do so, as the defendant conceded that the general law would permit parents to consent on behalf of their child, but stated that it could not conceive a situation where it would be appropriate to administer blockers to a patient without their consent.

Parental disputes over trans issues

Difficulties can arise when parents disagree on what is right for their child, including whether to support gender-affirming medical care (for example seeking the prescription of puberty blockers), the gender identity in which the child ought to be raised, or whether a child’s forename should be changed. Ultimately, if parents do not agree about such matters with one another and/or with the child, the court can be asked to consider the best interests of the child and make a specific issue order in terms of s 11(2)(e) of the Children (Scotland) Act 1995. However, there are no known reported cases in Scotland which have considered such issues.

These issues were at the heart of the English case of Re J (A Minor) [2016] EWHC 2430 (Fam). The mother of a four-year-old child reported that the child, who was assigned male at birth, wanted to live as a girl. The mother had opposed the father, who did not support this, having any contact with the child. Investigations by social work and later a clinical psychologist revealed that there was no independent evidence supporting the child’s gender dysphoria, as claimed by the child’s mother. The court ultimately decided that significant emotional harm stemmed from the mother’s relentless insistence on her child’s perceived gender dysphoria and her lack of engagement with professionals. The child was placed in the care of his father and affirmed a desire to identify as male.

The judge’s comments are interesting. While acknowledging that there are children who are transgender, some doubt was expressed about whether a child as young as four would be capable of making an informed choice as regards their gender identity. The judge referenced a psychologist’s report which repeatedly referred to the child using the pronoun “she”. Explaining why the psychologist might not have been immediately alert to the situation, given her limited role, the judge stated that it was “entirely counterintuitive to suspect that a boy who is consistently presenting as a girl may not truly wish to do so and may have been forced or induced into performing such a role by his mother”, before going on to describe his assessment of the child’s mother as displaying “highly manipulative behaviour.”

Conclusion

In summary, there appears to have been significant progress in the UK for recognition of trans family issues. However, the law is continuing to develop and there are some clear inconsistencies in aspects of the law. Indeed, there appears to be different guidance being issued by public sector organisations and government as regards how trans issues should be treated, which is unsurprising given the divergence of public opinion on the topic.

As the judge in Lancashire County Council v TP [2019] EWFC 30 stated, when dealing with issues concerning child gender identity, “the medical understanding of such issues is complex and developing… inevitably there is some lag between those professionals at the cutting edge.., and others (in which I include myself) which might have played some role in how these proceedings came about”. What seems clear is that there will continue to be a spotlight on trans family law issues in the coming years.