Using DNA Testing to Aid the Transgender Community

The increasing societal commitment to the well being of those wishing to express different gender identity and gender expression together with the legal recognition of same, is important for the protection of individuals, their dignity and their health.

Recent instances however, concern the ability of transgender people to amend the birth certificate of a child to reflect their own changed gender, which in one 2015 case was rejected by the Registrar and also by the High Court1.

This has obvious implications for DNA testing in terms of checking for Parental Responsibility and in carrying out the work, whereby intimate details may be revealed.

There are two cases (one ongoing) which highlight the need for fresh consideration of how we might integrate transgender rights into legal parlance and process.

In the aforementioned case (the first of its kind) a person male at birth who was undergoing transition to female requested that the Registrar of Births amend her child’s birth certificate to reflect her new name.

This was refused and resulted in proceedings under Article 8 (respect for private life) and Article 14 (discrimination on the basis of transgender identity2) of the European Convention of Human Rights (ECHR).

This was rejected on the basis that the interference with the Article 8 right was justified but not material, since it would only be under rare situations (we expect paternity testing to be one of them) that the transgender female would be required to produce the child’s full birth certificate.

A changed certificate might record the sensitive information or require disclosure, but of course, it would only need to be revealed to those with an obligation of confidentiality, despite the fact that in this case she had identified herself as transgender on social media.

Furthermore, a birth certificate can only be altered to correct minor errors or when parents marry or enter into a civil partnership following the birth3.

The Registrar of Births does not have discretion concerning the categories that are recorded on the birth certificate, which are “child”, “father”, “mother” and “informant”.

Indeed, the Registrar successfully argued that point in terms of the legitimate aims of the Births and Deaths Registration Act 1953.

There was justified interference with the claimants rights under the ECHR because there was a need for; a) an administratively coherent system for the registration of births and b) a need to respect the rights of others such as those of the partner and child of the transgender person and, of particular relevance, the fundamental right of a child to know the identity of his or her biological father.

In a subsequent case4 , a person female at birth and living as a male (TT) had a child (YY), biologically theirs, by artificial insemination. At the point at which the child was born, a valid Gender Recognition Certificate was in place, so the biological mother was male.

The Registrar has decided that the birth mother must be registered as “mother” on the birth certificate. This is against the wishes of TT who asserts that as a matter of domestic law, he should be regarded as the father or secondarily, in a gender-neutral manner as “parent”.

Failing that and assuming he has to register the birth as “mother”, then he considered that this would be a contravention of Article 8 of the ECHR. If upheld on the other hand, YY will be the first person born in the UK without a mother on their birth certificate, since other transgender males have accepted the “mother” annotation. Those acting for YY have issued an application for TT to be declared YY’s father under the Family Law Act 1986, s55A.

We await the final judgement on this case, but in any event the outcome will have profound implications. Society is in the process of normalising its institutions to accept the status of transgender persons but of course in this case must also take into account the separate needs of the child; their Article 8 rights should not be compromised by the decisions of a parent.

If the status quo is not upheld, then as a DNA testing company we will inevitably at some point detect a biological female registered as the father, maybe with another registered father or father unknown or a biological male registered as the mother. The biological facts of course, cannot be denied.

In 1953 social motherhood and fatherhood were presumed to reflect biological motherhood and biological fatherhood.

The increasing complexity of social relationships since that time have been recognised by the law and provide interesting points regarding the registration of the birth of a child in situations of surrogacy, adoption and assisted reproduction, which may provide precedent and guidance as to how the parentage may be best recorded when one of the parents is transgender.

In any event, in all three cases, once the child has attained the age of 18, the respective legislation allows for the child to obtain information on their biological parentage.

We will discuss these points in the next article and by then, we will hopefully have the judgement on TT vs YY.

About the author: Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager, of Complement Genomics Ltd (trading as dadcheck®gold).

The latter is a company accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969″.

1 JK, R (on the application of) v The Secretary of State for the Home Department & Anor [2015] EWHC 990 (Admin) (20 April 2015)

2 Goodwin v United Kingdom (2002) 35 EHRR 18 and PV v Spain (11 April 2011) (Application No 2 35159/09)

3 Births and Deaths Registration Act 1953, sections 29,14 and 14A

4 Administrative Court and Family Division in the Matter of TT and YY [2019] EWHC 1823 (Fam) 4 Administrative Court and Family Division in the Matter of TT and YY [2019] EWHC 1823 (Fam)

5 As Lord Simon noted in the Ampthill Peerage Case [1977] AC 547, page 577: “Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition”. 

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