Guest Post: Trans-parenthood and the law – lessons from abroad

[This is a guest post by Muskan Tibrewala.]

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The Kerela High Court recently heard a petition – Zahhad v. State of Kerala WP(C) 23763/ 2023 – seeking a mandamus against the State of Kerela and Kozhikode Corporation to issue a new birth certificate for the child of two transgender persons: Zahhad, a transman, and Ziya, a transwoman. The child is the third petitioner, and the parents of the child are the first and second petitioners. The mandamus asks that the birth certificate mention petitioners 1 and 2 as “parents” of their child without showing specifically the name of the petitioners as “father” and “mother” respectively.

Zahhad, a transman is the “biological mother” of the child, but identifies as a man and is currently living as a man. However, the birth certificate records him as the “mother”. Ziya, who is a transwoman and similarly lives as a woman, is recorded as the “father”. The Petitioners approached the court because the Corporation refused to register Zahhad and Ziya as “parents” in the birth certificate.

The birth certificate is issued under Section 12 of the Kerala Registration of Birth and Death Rules 1999. The corresponding Form 5 requires the name of the Father and the Mother to be set out separately. In their petition, Zahhad and Ziya have stated they want to be mentioned as parents to ensure that their child avoids embarrassment in the future because of having a man for a mother and woman for a father in the child’s identity cards. In February, they had written a letter to the Government Medical College Hospital requesting that Zahhad and Ziya be registered as the father and mother respectively.

The State’s refusal to change the form of the birth certificate hinges on the its ordering function and interests in maintaining heteronormativity. While Zahhad is considered to be the first transman in India to have given birth to a baby, this is by no means a rare occurrence. Neither is it uncommon that the state denies such transgender parents the right to be recognised with their correct gender identities on the birth documents of their children. While there is the recognition of the right of a transgender person to their self-identified gender identity, this appears to stop at the point where a transgender person claims a right to a particular parental status.  

This is because right of a transgender person to a parental status in accordance with their gender also intersects with the state’s interest in registering birth details and the right of the child to know their parents. Ahead of the Kerela High Court hearing in this matter, this essay will examine the judgements that have dealt with the parental status of transgender persons in other jurisdictions, and discuss the lessons that we might take.

Foreign Jurisprudence

In 2019, the BBC and the Guardian released a documentary titled Seahorse, about the journey of fatherhood of Freddy McConnell, a transgender man in the United Kingdom who gave birth to a child. The same year, the President of the Family Division, Sir Andrew McFarlane of the England and Wales High Court, in R (on the application of TT) v The Registrar General [2019] EWHC 2384 (Fam) denied Freddy McConnell the right to be recognised as his baby’s father. The operative part of the judgement is as follows:

The principal conclusion at the centre of this extensive judgment can be shortly stated. It is that there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.

The decision refers to a similar case which was a first instance decision before an administrative court, R (JK) v The Registrar General (The Secretary of State for the Home Department and others intervening) [2015] EWHC 990 (Admin). JK was a transgender woman who was married to a woman and was the biological parent of two children. The Registrar General denied JK’s request to be registered as ‘parent’ or ‘father/parent’ on the birth certificates of both children. JK went to court against the decision of the Registrar General arguing that this violated her Art 8 of the European Convention of Human Rights (ECHR) right to private life and affected the Art 8 rights of her children to keep private the fact that their father was transgender. Hickinbottom J found that the interference with Art 8 was necessary because a balance had to be struck between harm to the individual on the one hand, and the right of a child to know their biological parent and the public interest of the state in having coherent birth registration schemes on the other.

The Grand Chamber of the European Court of Human Rights (ECtHR) in X,Y and Z v. the United Kingdom ECtHR 21830/93 (1997) decided that the United Kingdom was not violating Art. 8 of the ECHR by not recognising a transgender man as the father of his child for similar reasons. The court recognised that the family was a “traditional family” in every other sense, and that the law did not deny the applicant from acting in the social role of the father. However, the court reasoned that the birth documents were not used as much as other identity documents, and the disadvantages suffered by the child and the transgender parent would be minimal compared to the interest of the community in “maintaining a coherent system of family law”.

However, six out of the twenty judges of the Grand Chamber judges dissented, reasoning that as the state had allowed a transgender person to transition and recognised their preferred gender identity, the state must “accept the consequences and take all the measures needed to enable the applicants to live normal lives, without discrimination, under their new identity and with respect for their right to private and family life.” They further noted that the Government had not shown what harm the state would suffer in registering the applicant as the father of his child, and that the welfare of the child lay in the legal recognition of the family as it is. The dissenting judges also found that there was discrimination on the basis of sex and the state had violated Article 14 of ECHR.

In 2017, the Federal Court of Justice of Germany (Decision XII ZB 660/14) denied a transman identification as his child’s father, ruling that the role of the mother must always be attributed to the person giving birth to the child, and that the right of a transgender person was limited by law’s function of certainty. This year, in A.H. and Others v. Germany 7246/20, the ECtHR upheld another decision of the Federal Court of Justice of Germany which found that the public interest in maintaining “fatherhood” and “motherhood” as legal categories with attendant consequences, and the reliability and certainty of public registers, overrode individual interest.

In Sweden on the other hand, two cases before the Administrative Courts in 2015 and 2014 [Warren Kunce v Skatteverket, Förvaltningsrättens I Stockholm, 24685 and A and B v Skatteverket, FörvaltningsrättensI Göteborg 11453-13] upheld a transgender man’s right to be registered as a father in the birth certificate of his child. The court found that Swedish law was silent on how transgender persons should register their parental status and that they were bound by international obligations to look at the best interests of the child and recognise a person’s self-identified gender identity. The court recognised that registering a transgender man as a “mother” would be violative of the right to gender recognition and the need to protect his child’s private life. Further, this overrode the public interest in assigning a “biological mother” to each child. The court also noted that exceptions to biological motherhood and fatherhood had already been made in cases of same-sex couples and surrogacy.

Lessons for India

In India, Sections 6 and 7 of the Transgender Persons (Protection of Rights) Act, 2019 allow transgender persons to change their name and gender in “official documents relating to the identity of such person”. Under Annexure-1 of the Transgender Persons (Protection of Rights) Rules, 2020, the illustrative list of official documents includes birth certificate and marriage certificate. Further, under Section 4, “a transgender person shall have a right to be recognised as such in accordance with the provisions of th[e] Act.” On an interpretation of the Transgender Persons (Protection of Rights) Act, 2019, the question before the court will be if “official documents relating to the identity of such person” includes the birth certificate of their child. The birth certificate of their child is undeniably an official document, and it indicates the identity of the transgender parent when it uses the word “mother” and “father”.

This administrative responsibility of the state has been used by courts in other jurisdictions  as a reason for “public interest” that overrides the right of transgender persons to their gender identity and that of a child to their privacy. However, in India if it is possible to change details for a transgender person on their birth certificate per the Act, the state has little case in arguing that they cannot change the details of a transgender person on their child’s birth certificate. The integrity or reliability of the birth register system is not affected by changing these details, or at the minimum, the state has the means to facilitate it. Neither is maintaining the family law system a concern because having inconsistent gender recognition as a parent will only cause more confusion.

On violation of fundamental rights, there is violation of Article 21, 19 and 14 rights of the transgender parents and the rights of the child in terms argued in the cases above. The right to one’s gender identity, privacy and family under Article 21 has been upheld upheld by the Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017) 10 SCC 1. The right of transgender persons to gender identity, full civil rights and equal citizenship has been upheld by the Supreme Court of India in NALSA v. Union of India (2014) 5 SCC 438. There is also a violation of Article 15, as the transgender parents are being discriminated against on the basis of their gender. The arguments advanced in the previous paragraph also demonstrate that in this case, the “administrative responsibility” argument does not meet the requirements of proportionality: it fails on both the “rational nexus” prong, and on the “least restrictive alternative” prong.

Sir Andrew McFarlane of the England and Wales High Court in in R v Registrar General [2019] EWHC 2384 (Fam) inconsistently recognised that the word “mother” is always associated with being a “female” and that Freddy McConnell had legally transitioned to a male before conceiving. Dismissing this inconsistency as mere result of scientific advancement, Sir Andrew McFarlane created a farcical distinction between a transgender persons gender identity and their role in giving birth (they’re the same person in both instances!). The Federal Court of Justice of Germany upheld their finding on the basis that “mother” must always person giving birth to the child. However, commercial surrogacy is legal in India, as is adoption, and in both cases the non-birth mother is recognised as the natural mother. “Legal certainty” or “administrative coherence” are just smokescreens used by the state and the court for maintaining the hetero-patriarchal order that has been entrenched in the law. India, like most countries in the world, has moved past this biologically essentialist framework as is particularly clear in NALSA (supra) where the Supreme Court rejected the biological test. The state’s interest in administration surely must support having consistent gender identification on personal identification documents, as a parent or otherwise.

In cases involving children, the law perceives the welfare of the child as paramount. The right of a child to know their biological parent cannot necessarily mean that the child must know their biological contribution to the child’s birth. Is not the knowledge of the parent’s legal and current name and gender identity of the parent sufficient? In fact, the Adoption Regulations 2022 as framed by the Central Adoption Resource Authority (CARA), requires that confidentiality be maintained of documents involving biological parents if the parents have asked for anonymity. Regulation 47 that allows adopted children to root search for the parents, mandates that the consent of such parents who sought anonymity has to be sought first. Sections 21(e) and 27(6) of the Assisted Reproductive Technology (Regulation) Act, 2021 mandates confidentiality of donors in birth through the use of assisted reproductive technology. There is no inherent right for a child to know their genetic parents in India. On a balance, the right of the child to have a private family life, proper legal ties to their family, and an upbringing that does not involve harassment or embarrassment must prevail.

In India, as with other countries, the law has created exceptions to strict biological and heteronormative categories which makes the argument used in the UK and Germany of the fixed categories unfeasible. The rights of adopted children, single parents, parents who have used surrogacy are recognised. Most recently in X v. Principal Secretary 2022 SCC OnLine SC 1321, the Supreme Court held that legal recognition of “non-traditional manifestations of familial relationships” is necessary. In Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088, the Supreme Court recognised that concept of “family” has changed in law and that atypical manifestations of the family unit are equally deserving not only of protection under law. This case is another chink in the armour of the hegemony of heteronormativity and cis-normativity in Indian law and the Kerela High Court has all the tools to rule in favour of the Petitioners.

Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]

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Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.