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Transgender family law issues further debated

By October 23, 2019February 23rd, 2024No Comments

In what is considered a setback for transgender rights in the UK, a transgender man has lost a court battle to be registered as his child’s father, with the ruling firming up the legal definition of a mother under English law. The man has been living as a male for years but had kept his female reproductive system and had a child last year. The case raised the question of the status of a transgender male who becomes pregnant and gives birth. The man had wished to be legally recorded as the child’s father, however the UK courts decided that “motherhood was about being pregnant and giving birth regardless of whether the person who does so was considered a man or woman in law”. The man is now recorded on the baby’s birth certificate as the child’s mother, despite the law also recognising him as being male. The ruling is sure to be of interest in Australia as we too proceed through a phase of reform regarding same-sex and transgender family law issues and rights. Activists say the status quo currently only provides “fragile equality” for our transgender citizens.

Around the world there has been much activism regarding transgender family law and the need to respect the human rights of transgender people, with patchy progress. For example, in the Netherlands, transgender males who give birth are able to be registered as fathers. In Canada and Sweden, gender neutral birth certificates are allowed, and here in Australia, Tasmania has just introduced legislation which allows people to legally change their gender without undergoing surgery. Under the new legislation parents will also be able to choose if they wish their child’s gender to be printed on the child’s birth certificate, and people over 16 will be able to change their registered gender without their parents’ approval.

Activists say the Tasmanian legislation will only affect a tiny number of people, providing them validation and visibility and acceptance of who they are. However the Tasmanian Premier, Will Hodgman, is expected to order a review of the new laws, describing them as “clumsy” and “ill-considered”.

The Saturday Paper reports that the Victorian government too is to consider a move towards recognising and advancing transgender rights with the introduction of legislation to make it easier for trans and non-binary identifying people to change the gender listed on their birth certificate.

In its article on the current backlash against inclusion of transgender people, The Saturday Paper further reports on the new battles being fought by transgender people and in the realm of transgender family law. The paper describes the emotive fear-mongering of the “transphobic discourse” seen in conservative media outlets such as The Australian, with debate over the issues described in terms such as “they’re castrating children”.

Critics say the conservative media “ignores available scientific evidence which strongly endorses supporting transgender children through social and medical transition to improve their mental health outcomes”.

The adverse mental health outcomes often experienced by transgender people are argued not to be caused not by being transgender but by experiencing the “stigma, discrimination, social exclusion, family rejection, bullying, harassment and assaults”.  It is the absence of supportive, affirming care for kids that is believed to be harmful, not their gender identity per se.

The fearmongering, spread of disinformation and imposition of pop diagnoses of mental illness all appear to be part of the pushback against transgender rights that we’ve witnessed all the way up to the Prime Minister’s office, with Scott Morrison having expressed his concerns about “gender whisperers in schools”.

And fresh debate over how to end discrimination in schools has seen conservative commentators equating transgender identification to anorexia, claiming it is harmful for schools to affirm a child’s wishes regarding their gender identity.  The argument is that schools, in particular religious schools which typically have a fundamental opposition to the concept of gender fluidity, should have the right to reject a child’s expressed new gender identity. Conservative commentator Professor Parkinson is quoted as arguing:

“Sex, or what it means to be male or female, needs to be defined in terms of reproductive function while gender identity can be defined in terms of subjective belief,” Professor Parkinson said.

Meanwhile the Australian Law Reform Commission has been asked by federal attorney-general Christian Porter to review the religious exemptions to anti-discrimination legislation at a Commonwealth, state and territory level.

The UK ruling is argued to have implications for non-traditional family structures, “[upholding] the view that only the most traditional forms of family are properly recognised or treated equally”. Rather than recognise transgender parents for who they are, the desire to register a transgender male as a mother on a birth certificate appears “to be a result of an administrative need for every child to have a registered mother”.

You may also like to read our previous blogs on issues relating to transgender family law here and here.

If you need family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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