R (oao TT) v The Registrar General for England and Wales

The Claimant (“C”) was a person whose registered gender at birth was female.  C was diagnosed as gender dysphoric and for many years lived as a transgender male. He was artificially inseminated and gave birth to a child, YY. C was granted a gender recognition certificate while seeking to become pregnant. The certificate was issued prior to the birth of C’s son, YY and thus, at the time of YY’s birth, C was legally male “for all purposes”.

C attended his local register office to register the birth of his child and insisted that he should be registered as YY’s “father”.  The Registrar declined his request and advised that TT could only be registered as YY’s “mother”. C brought a judicial review of the Defendant Registrar General (“D”) in respect of that decision. Subsequently, applications were made by C for a declaration of parentage and for the grant of parental responsibility with respect to the relationship between C and YY.

In the judicial review proceedings, C and YY were anonymised by Order of Mr Justice Francis (“the Order”). The Order provided that no one shall publish any document relating to these proceedings in such a manner as to identify either directly or indirectly the Claimant or YY.

Following substantive hearing of the combined judicial review and family proceedings in February 2019, but before judgment was handed down, the legal teams acting for C and YY became aware that C had, apparently over the course of the past three years, been co-operating in the production of a one hour documentary film, the sole subject of which was C, his desire to become pregnant and his journey through IVF treatment, and conception to the birth of his child, YY. The film was publicised in an article in a national newspaper describing C as a transgender male who had given birth.

A joint application was made to the court on 29th May 2019 by Telegraph Media Group Limited, Associated Newspapers Limited, News Group Newspapers Limited and Reach PLC to remove C from the protection of the anonymity order, but retain a bar on directly naming YY.

(1) Should C continue to be anonymous in the proceedings?

(2) What was the role of YY in any balancing exercise?

Varying the Order to identify C but preserving YY’s anonymity

(1)

At the main hearing in the judicial review proceedings, no application was made to vary the anonymity order since C’s case was that he wished to avoid the prospect of being identified as a transgender parent and, in that regard, it was, he argued, important that YY’s birth certificate should not present a potential trigger for any such identification. So far as C’s Article 8 rights were concerned, following the film and associated publicity it was a given that his status as a transgender male would be widely known to many of those who know him, either socially or professionally. It was justified to question what still fell to be protected by continuing to afford C anonymity as the Claimant.

The Court did not consider that the level of intrusion from negative comment and publicity that was likely to follow the court’s determination of the judicial review claim if C was identified as the Claimant was of the highest order.  The fact that the circumstances had been generated entirely by C’s own actions and decisions was in contrast to most, if not all, of the relevant authorities.

When an ‘intense focus’ was applied to the Art 8 and Art 10 rights that were in play with respect to naming C as the Claimant, the Court did not regard that issue as being of a significantly different order to the information that C had already deliberately made freely and publicly available.  Conversely, there was a genuine public interest to be served by publicity and debate about the issues raised in the case such as would normally justify naming the individual involved.

(2)

Children have independent privacy interests of their own and YY’s position required analysis that was independent of that relating to TT, and his best interests were a primary, but not determinative, consideration.

The reality was that the core information about YY’s parentage had already been made public, at least to the extent that it was likely to be known by all those who know C, and it was due to be given significantly wider publicity by the television broadcast of the documentary film. The prospect of YY growing up in circumstances where those who knew him did not know that the parent who gave birth to him was a transgender male was probably remote.

Key to determining where the balance lay with respect to YY was the question of the likely additional harm that he may suffer if he was identified as the child who was the subject of the judicial review, over and above any harm that he may experience from it being known that he was a child born to a transgender man. In this regard, YY’s age was relevant. He would not have any direct knowledge of any publicity, let alone its content, that was generated by the proceedings when judgment was handed down in the coming month or months. The potential for immediate and direct harm to YY from any publicity and comment arising from publishing material around the court proceedings was effectively zero.

The potential for direct harm to YY that it was possible to foresee would arise when he was older and of school age. The Court did not accept that the fact that he was the subject of a legal dispute as to the status of his parent significantly elevated the potential or level of harm above that which may follow the more general knowledge of the circumstances of his conception and birth.

The Court’s primary conclusion with respect to YY was that the publication of the additional information, namely the fact that YY’s father was the Claimant in these proceedings, was, of itself, sufficient to engage YY’s Art 8 rights.

If a balance fell to be struck between YY’s Art 8 rights and those of the media under Art 10, YY’s interests were a primary consideration but the intrusion into YY’s Art 8 rights that would follow from publication of the fact that his parent had applied to be registered as ‘father’ rather than ‘mother’, was both necessary and proportionate given the genuine public interest in the issue raised which otherwise justified naming C as a party, and indirectly YY to those who knew him, or would come to know him, as C’s child.

The circumstances in which the decision was made were highly unusual. Nevertheless, it provides a valuable analysis of the considerations relevant to the Article 8/Article 10 balancing exercise as it applies to the identification of parties to legal proceedings. The approach to the rights of “YY” is particularly interesting. Those seeking to prevent publicity often refer to the rights of the children involved in or related to those involved in proceedings, but the decision underlines that it may be important to scrutinise the nature of the information which will be disclosed about them, and what its impact is likely to be, before such rights can assume any, or any decisive, role.