A brief glance at Family Law issues on Transgender Day of Visibility
“We do not underestimate the challenges transgender people face and the actions in this document are just the first steps towards achieving this vision. It will take all of us working together to make this the era where we consign transphobia to the past, and build a strong, modern and fair Britain for all.”
Theresa May, 2011; then Home Secretary and Minister for Women and Equalities.
The above passage is taken from the foreword from the then coalition Government publication “Advancing transgender equality: a plan for Action” published in December 2011.
As a family law solicitor the passage in the 2011 document on ‘Equal civil marriage’ caught my eye, which stated an aim to:
“Work with the transgender community to ensure that everyone with an interest has the opportunity to contribute to Government’s work on equal civil marriage and that their needs are considered as part of this work.”
The law remains that if you are in a civil partnership and identify as transgender, you cannot be granted a full Gender Recognition Certificate until the civil partnership is converted to a marriage, or until the civil partnership is ended.
The Marriage (Same Sex Couples) Act 2013, coupled with the Gender Recognition Act 2004 open up the ability to marry as a same sex and transgender couple, but the requirement to end or convert the civil partnership first does appear to be something of an anomaly.
Case law has provided examples of transgender parents being marginalised in their children’s lives after acquiring their new gender. The Children Act 1989 provides that ‘the child’s welfare will be the court’s paramount consideration’; developed further to provide that it will be usually in the child’s best interests to have a relationship with both parents.
The court will strive therefore to balance the welfare of the child in what might be challenging family circumstances against Article 8 of the Human Rights Act: the right to respect for private and family life.
Cases in the court involving children and teenagers are also becoming more and more prevalent. In the rather distressing and sensitive case of J (A Minor)  EWHV 2430 (Fam) a 7 year old boy was eventually placed with his father, following the insistence of his mother that he was gender dysphoric. The case involved challenging issues involving clinical psychologists and the social services; in which the court had to make many difficult decisions about what precisely was in the little boy’s best interests.
Family law is changing rapidly on the subject of gender recognition. Nationwide campaigns such as Transgender Day of Visibility will hopefully encourage members of the community to feel comfortable in seeking advice about their rights. Great strides are being taken and we are receiving more and more legal enquiries from the trans community. It is a huge learning curve and Blacks solicitors are working with many organisations in the city to promote equality and diversity.
Associate Solicitor – Family Law
Blacks Solicitors LLP