Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

Abstract

Two recent decisions by English courts have established that the man who gave birth to his child should be registered as the ‘mother’ of that child. The courts found that, despite the fact that the Gender Recognition Act provides that a person who had changed sex and received ‘a full gender recognition certificate’ is considered ‘for all purposes’ to be a person of ‘the acquired gender’, this person still has to be registered on his child’s birth certificate as belonging to the opposite sex. This article describes and evaluates the reasons for these decisions, and compares the English position to those of a number of jurisdictions, including that of South Africa. It argues that the legal context in this country provides for a more pragmatic and equitable approach to the rights of both trans parents and their children.