The High Court unequivocally confirmed that a transgender man’s right to conceive and carry a child is not inconsistent with his declaration to live fully in the acquired male gender for the rest of his life.
Facts:
The appellant, who was assigned female at birth, came out as male at age 17 and has been living fully as a male for almost nine years. His transition steps included a name change by deed poll, adopting male pronouns, using male facilities, changing his name and gender on official documents (including his passport), undergoing a bilateral mastectomy in 2020, and briefly taking testosterone therapy.
The central issue arose from the appellant’s desire to conceive and carry a child himself, a plan supported by his medical team, which led him to pause testosterone therapy. He miscarried in 2016 and 2018. After stopping the testosterone therapy, he completed three full rounds of in vitro fertilisation (IVF) and miscarried in January 2024. He wants to restart testosterone therapy and undergo further gender-affirming surgeries, including genital surgery, hysterectomy, and oophorectomy, once his family is complete.
The panel became aware of this through a medical report and issued directions on 9th August 2024, questioning whether this wish to conceive was “incompatible with your declaration to live as a man for the rest of your life”. The appellant, who is neurodivergent, immediately requested and attended a remote oral hearing on 20th August 2024 to explain that he intended to give birth as a man and be known as “dad” by his child, noting that this path is increasingly common among trans men. The panel subsequently issued its decision on 3rd February 2025, refusing a gender recognition certificate (GRC). The panel concluded that the appellant had not been living in the male gender for the required two-year period and did not have the necessary future intention, based on the singular finding that “Pregnancy is a fundamentally female biological function and we find it to be inconsistent with living in the male gender”. This finding, which essentially required the appellant to abandon his reproductive rights to obtain a GRC, formed the basis of the appeal.
Decision:
The High Court allowed the appeal and granted the certificate. Mr. Justice Hayden found two errors in the Gender Recognition Panel’s decision, the first a fatal procedural error, and the second a fundamental misinterpretation of the Gender Recognition Act (GRA) 2004, one that violated the appellant’s human rights.
The Court found that the panel’s decision was invalid from the outset due to a critical procedural mistake – the failure to consider key evidence. The appellant did attend the remote oral hearing and provided a crucial, detailed statement. The panel’s ignorance of this evidence was deemed a “fatal” error, one that undermined the integrity of its entire decision.
The Court ruled that the panel’s final analysis on the Living in the Acquired Gender (LAG) condition (Section 2(1)(b) and (c)) was an error of law. The panel wrongly elevated pregnancy to a determinative factor, rather than considering it to be merely one of many relevant factors presented among the “broad canvass” of evidence. Such an interpretation leads to absurdity and inconsistency. By making the wish to conceive incompatible with the LAG condition, the panel effectively forced the appellant to choose between obtaining a GRC and exercising his right to procreate.
Implications:
This judgement is significant for future GRC applicants, especially trans men, as it clarifies the legal interpretation of the LAG condition under the GRA 2004. The most critical implication is the judicial confirmation that the desire or ability to conceive and carry a child is not incompatible with LAG.
This decision affirmed that forcing an applicant to choose between obtaining a GRC and preserving their reproductive rights constitutes a significant interference with their Article 8 ECHR (the right to a respect for private life) rights, which the GRA 2004 was never intended to do.
Finally, the judgement reinforces the principle established in McConnell that a person’s parental status is distinct from their legal gender.
