Transgender people globally have long been subject to discrimination and improper human rights protection, and the sphere of parenthood is no different. With ongoing struggles for the legal recognition of a gender change, and archaic practices such as sterilisation still being imposed, the rights of transgender parents throughout the world are too frequently undermined.
MOTHERS? FATHERS? PARENTS? AN ONGOING STRUGGLE
The transgender community has long been campaigning for the recognition of gender when it differs from that assigned at birth and for inclusive language to encompass non-binary genders. An offshoot of this issue has been the struggle for legal recognition of parental terminology that reflects the gender of the parent (for example, being recognised as a mother, despite being assigned a male at birth).
Freddy McConnell, a transgender father lost a series of legal challenges before the UK courts, in which he requested to be listed as the “father” or “parent” on the birth certificate of the child he carried gestationally. In the decision, Justice Sir Andrew MacFarlane made reference to the lack of gender specificity pertaining to the terms “mother” and “father,” consequently denying the need to recognise that the father had indeed given birth to the child.
The court’s decision was referred to as “deeply disappointing” by the chief executive of Stonewall, Nancy Kelley. She explained “trans parents should be able to have their relationship to their child recognised on their child’s birth certificates”.
The UK government also made the decision in February 2021 to refer to “mothers” in the Maternity Bill rather than the gender-neutral term “pregnant people” after the phrasing of the latter was rejected by the House of Lords. In reference to the decision, Freddy McConnell claimed that the UK government had “taken a step backwards, both broadly speaking and for trans recognition and equality. The only meaningful effect of gender-specific language in this bill is the exclusion and erasure of trans people”.
STERILISATION: OUTDATED AND ARCHAIC
It is not, however, just paperwork and terminology-based discrimination that many transgender parents face. A sinister history of the sterilisation of transgender people haunts the pathway to achieving sufficient protection for trans parents. In several countries, the law stipulates that to legally change gender, it is necessary to undergo irreversible, sterilising surgery.
This surgery is chosen by many transgender individuals as part of their transition, but undeniably this should be a choice rather than a requirement. Forcible sterilisation is both invasive and archaic, and has been regarded by the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading punishment as violating the Yogyakarta Principles on human rights standards applied to sexual orientation and gender identity.
As recently as 2017, across the Council of Europe, 20 countries enforced a sterilisation requirement for those seeking legal recognition of their gender. Such a requirement still prevails in Finland. Referred to as “the inability to reproduce,” this procedure is usually achieved through hormone replacement therapy. This requirement is surprising in certain countries perceived as a being liberal and pro-equality and demonstrates the extent of the discrimination faced by trans parents and would-be parents.
In Japan, the rights of LGBTQIA+ parents are significantly limited. If they pursue a legal change in gender, they must comply with several requirements such as sterilisation. Besides, parents belonging to this community cannot legally change their gender if they have a biological child who is a minor.
The requirement of sterilisation is archaic and not only violates the bodily rights of an individual, but it is also symptomatic of governments only recognising transgender people by their preferred gender if they renounce their ability to bear children, undermining their basic human rights as would-be parents.
STEPS FORWARD
In 2020, the Dutch government agreed to pay compensation to trans people who underwent sterilisation to gain legal recognition of their gender. Following in the footsteps of the Swedish governmet, which became the first country in the world to do so, the Dutch minister for legal protection explained “is it important to acknowledge the suffering of transgender people and to offer recognition, compensation and apologies for it”.
In February 2021, Brighton National Health Service Trust announced it would use trans-inclusive language for its maternity services, another highly gendered area. Whilst this has been regarded as “absolutely wonderful” by TransActual director Shay Brown, there has also been significant backlash from people concerned that gender-neutral language risks erasing female identities, especially from trans-exclusionary feminism groups.
Affording proper protections and equal rights to transgender individuals is vitally important, including in the sphere of parenthood. It is imperative that this area is addressed in order to ensure the protection of the human rights of both parents and children globally.