JK, R(on the application of) v Secretary of State for Home Department and another [2015] EWHC 990 (Admin) 20 April 2015
Abstract:
JK had been born a male. She was previously married to a woman and the couple has two children together, C1 and C2. She was diagnosed with gender dysphoria between the births of her two children and began taking hormone treatment as part of her transition. In accordance with the Registration of Births and Deaths Regulations 1987, JK had been recorded as “father” on her child’s birth certificate. Post the birth of her second child, JK requested the Registrar General for England and Wales (the Registrar) amend C1 and C2’s birth certificates by substituting “father” for either “parent” or “father/parent” and to record her new name instead of her male name, CK. JK claimed that the Registrars refusal to complete this change breached her and her children’s rights to have respect for her private life under Article 8 of the European Convention of Human Rights (ECHR) and amounted to discrimination on the basis of her transgender identity under article 14. The UK High Court of Justice dismissed JK’s application as they held that the interference with the article 8 right was not material and that, even if it was to be deemed material, the interference was justified as it fell within the state’s margin of appreciation.
Facts of the Case:
The Claimant, JK, is a transgender woman (male to female transsexual); JK’s sex at birth was recorded as male. JK married KK and together they have two naturally conceived children: AK (C1) and PK (C2). KK gave birth to AK in 2012, prior to JK beginning hormone treatment as part of her transition and JK was recorded as the father on the birth certificate of AK. By this time, the Claimant felt the desire to live as a woman and changed her name by deed poll to JK (a female forename), renouncing her former name of CK. She was diagnosed with gender identity disorder at the Nottingham Gender Clinic and began a course of feminising hormone treatment. After PK was born, JK requested that the Registrar General for England and Wales (the Registrar) change the children’s birth certificates by substituting “father” for either “parent” or “father/parent” and to record her new name. Her request was refused by the Registrar in agreement with the Registration of Births and Deaths Regulations 1987 law. JK brought proceedings against the Registrar for a breach of her right to have respect for her private life and her children’s under article 8 of the ECHR; she backed this with article 14, and stated that this was discrimination on the basis of her transgender identity.
Introduction:
‘To prepare for the next onslaught, the labour lawyer must maintain a vigilant search in the dark corners of every nook of the common law’. (Wedderburn 1992, p 51).
This warning referring to collective labour law was made by Lord Wedderburn but it is equally applicable to questions of sex discrimination. The ‘nooks’ which require scrutiny are statutory, thus this case is particularly important when looking at the rights of transgender women and their families, in particular the right of privacy about their sex. It is relevant to explore the rights to privacy for this sector of society in order to underline conflicting statutory interpretation.
Main body:
By virtue of section 6 of the Human Rights Act 1998, it is unlawful for a public authority in the United Kingdom to act in any way that is incompatible with a Convention right. Article 8(1) of the ECHR provides that a person has the right to respect for his private and family life, his home and his correspondence. This is a qualified right and as a result can be subjected to interference by the state on necessary lawful grounds, as reflected by Article 8(2).
The ECHR must be secured without discrimination on the basis of transgender identity. In the case of Goodwin v United Kingdom (2002) 35 EHRR 18, Goodwin was unable to change a number of official government records which listed her as male. She stated that this failure to amend her official records was a failure of the State to recognise her chosen gender and identity, and thus constituted to a violation of her rights. The government’s loss of the case (as a violation of the ECHR 1950 Article 8 and 12 was found) was a factor in the introduction of the Gender Recognition Act 2004. It was established in the Pretty v United Kingdom (2002) 35 EHRR 1 at [65] that respect for human dignity and freedom is “the very essence of the Convention”.
JK claimed that under the basis of article 8, a scheme to amend a child’s birth certificate to appropriately reflect the identity of the child’s parents should be put in place in order to respect the privacy not only of the parents, but that of the children too. However, the Births and Deaths Registration Act 1953 (the 1953 Act) makes it unlawful to alter a birth certificate and one can only be altered to correct slight errors or when parents marry or enter into a civil partnership following the birth (sections 29,14 and 14A of the 1953 Act). The Registrar has no discretion with respect to the categories recorded on the birth certificate (section 29 of the 1953 Act).
The ratio decidendi of the case was that the interference with the article 8 right was not material, and even if it did happen to be, the interference could be justified as it fell within the state’s margin of appreciation. Although JK’s rights were interfered with under article 8 due to the state requirement to be listed as a “father”, Justice Hickinbottom concluded that it is not a material inference. It would be a rare occasion that a detailed birth certificate (in the long-form, not the short-form) containing the sensitive information would be produced, and even then the people handling that information would be prohibited from disclosing the information, so her right to privacy was not substantially interfered with; it was in the publics best interest to not change the legislation.
Justice Hickinbottom also dismissed JK’s claim that the registrar has discretion whether to classify someone as a “parent”, “father” or “parent/father”. For the purposes of the Human Fertilisation and Embryology Act 2008 (HFE), “father” and “parent” are mutually exclusive terms, thus his Honour ruled that there is no discretion conferred to the Registrar, but rather an obligation to have only one term; in JK’s case, “father” was more accurate than “parent”. It was not in the child’s best interests to amend their birth certificate as the 1953 Act incudes the right of a child to know the identity of his or her biological father. The amendment of the birth certificate, if discretion were conferred upon the registrar, could be disputed by the child, the parent’s partner or another adult. Consequently Justice Hickinbottom stated that the interference was justified and in his words, there is “a substantial public interest in ensuring that the scheme (for recording parents on a birth certificate) is, so far as possible, non-adversarial.” In the Hamalainen v Finland [2015] 1 F.C.R. 379 case referred to in his Honour’s judgement, there was again no violation of a transsexual woman’s rights under the ECHR art.8 or art.14 in the full legal recognition of her new gender being made conditional on the conversion of her marriage into a registered partnership.
Justice Hickinbottom also placed substantial weight on the rights of JK’s children, even though both- independently represented- fully supported the application. It would be a serious breach of the children’s rights to have their vital identity respected if JK was to have the capacity to amend their birth certificates. The Gender Recognition Act 2004, which allows transgender persons to attain a new birth certificate, explicitly excludes gender reassignment from adjusting the status of the person as the father or mother of a child. As a result, his honour concluded that Article 14 added no substance to his claim of Article 8, and thus his claim failed.
Following on from this, the obiter dicta of the judgement which his Honour used to support his decision was the social media accounts of JK, in particular her Twitter and Facebook accounts. On there, she publicly disclosed all of the information that she seeks to protect in this claim, and her Twitter page specifically listed that she is a “…Mum of two. Trans…”. She has also been listed as a transgender activist by a national newspaper. Each of these media outlets had broadcast the fact that the Claimant is transsexual, and this undermined her claim to seek privacy on the matter.
4 years later the TT, R (On the Application Of) v The Registrar General for England and Wales [2019] EWHC 1823 (Fam) (11 July 2019) case occurred. Still, the Claimant was dismissed when asking to be referred to as “father” on the birth certificate of his child, instead of “mother” (as he was registered a female at birth) which shows no evolution within the rights of transgender people in the law. This case is also largely absent from law reform proposals, reflecting that progress on transgender rights in many jurisdictions is still in its infancy. Portugal is one of the only jurisdictions where such an amendment may be possible, only if the child is over the age of 18 and provides consent for the change. This case is particularly complex; not only does it deal with the certain rights held by transgender people, but it also deals with complex inquiries as to the scope of those rights and how they are to be balanced with the rights of others in society.
This case can be viewed as somewhat lacking morality, particularly as the option of describing the applicant as “father/parent” was available and would have retained both an accurate reflection of their biological relationship to the child as well as accommodating the applicant’s desires to be identified in her affirmed gender identity. The trend towards gender neutral terms in laws and policies (for example, the availability of Mx as a third category on official documents) will hopefully continue and ultimately assist transgender parents, and is a shift in providing more privacy and security to that sector of society.
2019-12-2-1575306802