A Trans Man as a “Gestational Parent”: Trans Parenting and the Best Interests of the Child

• Citation: (2021) 32 Stell LR 234
• Published date: 29 September 2021
• Pages: 234-252
• Date: 29 September 2021
• DOI: https://doi.org/10.47348/SLR/2021/i2a3

https://doi.org /10.47348/ SLR/2 021/i2a3

234

A TRANS MAN AS A “GESTATIONAL PARENT”:

TRANS PARENTING AND THE BEST

INTERESTS OF THE CHILD

Brigitte Clark

BA LLB (Rhodes) (cum laude) LLM (Cantab), PhD (Rhodes)

Senior Lecturer, School of Law, University of KwaZulu Natal; Senior Honorary Research

Fellow, Oxford Brookes University, Oxford

Abstract

The understanding of gen der identities has e volved in response to

legislative, policy, political, c ultural and social change, but d espite these

shifts, transgender i ssues remain under‐ex plored, and marginalised in

South African law an d society generally. Transgender is an umbrella term

for a person whose gender ident ity, and gender expression , do not conform

to that normatively as sociated with the gender they were a ssigned at birth,

and for persons who are gender t ransgressive. Transgender parent ing

constitutes a direct c hallenge to “normal” notions of family as tr ansgender

parents challenge traditio nal assumptions abou t families. Although some

jurisdictions have m oved beyond gender categorie s to broader categories

of gender‐inclusive parent ing, there is no legislative provi sion in South

African law for transgen der parents who conceive afte r having legally

transitioned but n ot having undertaken gen der reassignment surger y. After

an analysis of recent case la w in England and advances in repro ductive

medical science in this area , this article focuses particularly on whe ther the

registration of tr ans parents in their chosen legal gen der (or as a gender-

neutral pare nt) conicts with the best interests of their children in relation

to the lived reality of their children’s lives, the rights of trans par ents and

children to privacy and fa mily life, and the children’s rights to know their

genetic origins. After co nsidering whether the rights of trans paren ts should

be limited in the interests of their child ren, the article argue s that South

African legislation a nd case law should advance b eyond the gendered,

heteronormative co ncept of the family currently in ope ration so as not to

limit the rights of trans parent s. An administratively coher ent system of

birth registration th at is in the best interests of childre n could be realised

by changing the legal nomenclature to reect the biological role of the trans

parent without the binar y connotations of gender.

Keyword s: transgender; parenting; childre n; best interests of the child;

human rights; Alteration of Sex De scription and Sex Status Act 49 of 2003

(2021) 32 Stell LR 234

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https://doi.org /10.47348/ SLR/2 021/i2a3

1 Introduction

“Transgender” is an umbr ella term for a person whose gender identit y,

and gender expression, do not con form to that normatively associated with

the gender they were assigned at birth, and for persons who are gender

transg ressive.1 A trans man is dened as someone who identies a s a man,

but whose sex assigned at birth was female. Born with female re productive

organs, trans men may undergo gender-afrming surgery, but may also change

gender in some ju risdictions, such a s England and South Africa, without

necessa rily undergoing su ch surgery.2 Trans women are those born with male

reproductive organs who have changed their gender legally although they may

not necessarily have undergone gender-afrmi ng su rgery.3 T rans ide ntit ies ar e

rooted in gender identity and expre ssion.4 Most people’s gender identit y (the

gender with which they associate themselves) and gender presentation will not

differ from that t ypically associated with their assigned sex. 5 Gender identity

forms the core of one’s personal self, based on self-identication rather than on

surgical or medical procedures,6 and re fer s to a pe rson’s in ter nal s ens e of bei ng

male, female or non‐conforming to gender normative stereotypes.7 Gender

expression refers to the way a person communicates their gender identity,

whe ther th rough beh aviou r or thro ugh app eara nce. Tra ns pers ons hav e gender

identities that dif fer from that of thei r assigned (birth) sex, although trans

ident ities take a wide va riety of for ms.8 Some trans persons are also intersex,9

some tra ns and intersex persons are also lesbian, gay or bisexual, and some

people t into one categor y but not the others.10 When con ned to binary

concepts of parenthood, legal la nguage is increasingly inadequate.

1 L Erickson-Schroth Trans Bodies, Tran s Selves: A Resource for th e Transgender Commun ity (2014) 1-4

2 1

3 1

4 Lesbian, gay and bisexual (“LGB”) identitie s arise from sexual orien tation toward partn ers of the same or

multiple gender s This article fo cuses primar ily on trans per sons

5 R Thoreson “Beyond equa lity: The post- apartheid cou nter-narrat ive of trans and intersex movemen ts in

South Afri ca” (2013) 112 African Affairs 64 6

6 Cape Town Tra nssexual/Tra nsgender Support Group “Oral presentation for the Sout h Afr ican Ho me

Affairs Portfolio Com mittee Hea rings: Alter ation of Sex Des cription and Sex Statu s Bill, 2003”

(09-09-2003) Parliamentary Moniåtoring Group paras 3- 8

appendices /030909capetown h tm> (accessed 14-07-2021)

7 For broader anal yses of transgender and i ntersex communi ties in South Africa , see T Klein “Intersex an d

transgend er activism in So uth Africa” (2009) 3 Lim inalis 15; L Vincent & B Camminga “Put ting the ‘T’

into South Af rican human rig hts: Transsexual ity in the post-apa rtheid order” (200 9) 12 Sexualities 678

8 UK House of Com mons Women and Equalities Co mmittee Transgen der Equality ( First Report of

Ses sio n 2015 -16 ) HC 390/2016 paras 3-4

cmwomeq/390/390 pdf > (access ed 14-07-2021) “Tran s” is s ometimes u sed as shorthand to ref lect the

full spec trum of term s used to describe t ransgender iden tities, but is not an exclusi ve term

9 Persons who have an intersex va riance are bor n with sex charact eristics (such as chr omosomes, genita ls,

and/or hormon al structu re) that do not belong strict ly to male or female categor ies, or that belong to bot h

at the sam e time (P D unne “Transge nder Sterili sation Require ments in Eur ope” (2017) 25 Medical Law

Review 554 n 169)

10 The tran s groups that have appea red before Parliamen t rejected the ideas of gend er dysphoria and gende r

identity disorder, not ing that they were n ot mentally ill, and that while some indiv iduals would opt for

clinical inter vention, others would prefer not to have invasive surgerie s or medicalise the issue at all (Cape

Town Transsexu al/Transgender Support Group “Ora l presentat ion for the South Afr ican Home A ffairs

Portfolio Com mittee Hear ings: Alterat ion of Sex Desc ription and Se x Status Bill , 2003” Parliamentary

Monitoring Group para 5)

A TRANS MAN AS A “GESTATIONAL PARENT” 235

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