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

AuthorClark, B.
Published date29 September 2021
Date29 September 2021
Citation(2021) 32 Stell LR 234
https://doi.org /10.47348/ SLR/2 021/i2a3
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
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 underex 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 genderinclusive 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
© Juta and Company (Pty) Ltd
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 nonconforming 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 ThoresonBeyond 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)
© Juta and Company (Pty) Ltd

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