Trans (legal) parenthood and the gender of legal parenthood

Brown, A. (2023) Trans (legal) parenthood and the gender of legal parenthood. Legal Studies, (doi: 10.1017/lst.2023.27) (Early Online Publication)

Abstract

Trans identities are increasingly subjected to contentious public and political debate in the UK, and this has resulted in resource to the law across various contexts. Against that background, this paper considers trans legal parenthood after the decision in R (McConnell and YY) v Registrar General for England and Wales. This judgment held that a trans man who gave birth was the legal ‘mother’ of his child. The wider consequence is that trans legal parenthood will not reflect trans identities, but birth-assigned sex/gender, regardless of whether the parent holds a gender recognition certificate. Separate from this underlying social and political context concerning trans identities, the paper argues that legal parenthood is a flexible and pragmatic concept, which lacks inherent normative content, and which has previously proved capable of accommodating a variety of different familial and reproductive circumstances. The paper argues that the gendered descriptors of ‘mother’ and ‘father’, while remaining the law's default, are not inherent to legal parenthood. Thus, the paper concludes that, despite the ongoing political and cultural debates concerning trans identities, the existing concept of legal parenthood is capable of properly recognising trans parenthood, without requiring any fundamental changes to the concept itself.

• Item Type: Articles
• Keywords: Legal parenthood, trans parents, Gender Recognition Act 2004, R (McConnell and YY) v Registrar General for England and Wales, fatherhood, motherhood.
• Status: Early Online Publication
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Brown, Dr Alan
• Authors: Brown, A.
• College/School: College of Social Sciences > School of Law
• Journal Name: Legal Studies
• Publisher: Cambridge University Press
• ISSN: 0261-3875
• ISSN (Online): 1748-121X
• Published Online: 07 September 2023
• Copyright Holders: Copyright © The Author(s), 2023
• First Published: First published in Legal Studies 2023
• Publisher Policy: Reproduced in accordance with the publisher copyright policy