The Government has buckled to pressure and reworded a Bill in a manner so it now specifically excludes trans men and non-binary parents.
The Ministerial and other Maternity Allowances Bill was put together rapidly to ensure that Suella Braverman, the Attorney General, didn’t have to resign her Government office in order to have a baby. It extended maternity allowances to Government Ministers and some Opposition spokespeople. Because babies wait for no man, or woman, there is an urgency to pass this before Braverman needed maternity leave, likely to be early in March.
So, what was the issue? Well, it wasn’t that the Bill just restricted the benefits to maternity allowances only – paternity leave, bereavement leave and others were simply not addressed, nor were benefits specifically extended to MPs other than front-benchers.
No. The MOST important issue, as evidenced by both the number of speakers and the amendments tabled, was that the Bill didn’t refer to “pregnant women”. Instead it used the standard gender-neutral drafting, in place since 2007, to refer to “pregnant people”. This is important because the introduction of both successful fertility treatments and gender recognition laws make it possible for trans men, who are legally recognised as male, to give birth.
One such man is Freddy McConnell, who not only starred in several tabloids in 2019 as well as his own film, but took the Government to court because he was recorded as his child’s mother on the child’s birth certificate. The case was about the use of the word “mother” specifically in terms of registration of birth. McConnell objected to being regarded as a mother.
The court’s ruling here is important. Both the High Court and the Court of Appeal recognised that there were significant implications for both Freddy and his child if Freddy was recorded as “mother”. Significant enough to interfere with their right to privacy and a family life. Their basic human rights were being infringed.
However, the courts took the view that the infringement was proportionate, as the number of times the child’s full birth certificate were required were very small, and it was legitimate to enable the child to have a legal record of who had given birth to them.
The courts also took the view that this was an interpretation of the law and policy as it currently stood. They noted Parliament could change the manner in which parents are recorded on birth certificates if it chose to do so.
Importantly, the courts also recognised Freddy as legally, socially and psychologically male. He was considered to be the child’s father excepting than the manner in which his child’s birth was recorded. It was just in the area of birth registration that it was deemed acceptable on a technical basis to describe him as his child’s mother.
Why is all this important, and relevant to what’s just gone on? Well, it’s showing that men can and do give birth.
Speaker after speaker in the House of Lords, both on Monday and today, spoke about how only women gave birth. That’s only true if you take the view that trans men are women, that the act of giving birth somehow removes any legal or other gender recognition that trans men may have.
Extrapolating from the McConnell case, Lord Pannick implied that the use of the term “mother” extended beyond simple registration requirements. Other QCs have different interpretations, and my analysis above is that the ruling was for registration only – the court accepted that McConnell was the child’s father in social, psychological and legal respects. The analysis was also clearly laid out by Baroness Brinton in the House of Lords.
Lord Pannick’s interpretation was the basis on which Government conceded that the gender-neutral language in the Bill should be replaced by gendered language. All pregnant women would have been covered by the initial gender-neutral language, because women are people. The wording covered everyone who was pregnant or gave birth. Using gender neutral language was not going to remove any benefits from women at all, but only covers trans men if you consider them to be “mothers” or “women”. Based on his legal actions, McConnell clearly doesn’t consider himself to be a mother and legally he isn’t a woman.
Based on statements by Lord True, it seems that the Government will use Lord Pannick’s justification going forwards when drafting other laws.
While in one aspect this is quite minor – the Bill is currently designed to benefit one person and one person only, Suella Braverman – in another, it has huge implications.
It is the first time for years, decades even, that the UK Government has decided to override its default of inclusive language, replacing it with language that specifically excludes a minority. By siding with the claim that women are being erased, despite the lack of evidence to support this, the Government has effectively erased trans men who are already almost invisible across our media and within our society.
Now imagine a law being rewritten to ensure that only white people could benefit, or that Jews could not. That is essentially what Government has just done to trans men. Sometimes people need to hear those parallels.
The use of “woman” in this Bill is being lauded as symbolic. The symbolism the other way is very well understood.
It sends a very powerful message. Not only to trans people, who will hear that Government is no longer minded to protect their existing rights or ensure that trans people are included in new rights granted to others – but also internationally, where overseas Governments and businesses are looking very closely at how the UK intends to behave post-Brexit.
And the message to the international bodies – when making law, the UK is now prepared to actively discriminate against trans people. In doing so, it has clearly aligned itself with countries like Poland and Hungary. It can no longer claim to be world-leading when it comes to human rights.