Creative Families

1. Creative Families Reproducing the non-nuclear family Stephen Whittle s.t.whittle@mmu.ac.uk

2. Trans Marriage in Europe • Of 2528 respondents • Only 420 were married prior to transition • 85% of these were trans women

3. Trans Relationships in Europe • Only 16% of trans people were married prior to transition • 74% of these experience a breakdown of marriage relationships • 8% due to cross dressing • 22% due to commencing living in their new gender role • 29% because their spouse treated them badly (from mental to physical and sexual abuse) • 5.5% had to divorce for legal recognition • Only 1.3% remarried

4. Contact with Birth or Marriage family • 34% are not allowed to contact their family (birth or marriage) • 7% no longer know whether they can make contact with their family (birth or marriage)

5. Children related Benefits • Special Health care • Special Social Welfare • Special Tax Reliefs • Benefits of Intestacy • Benefits of Schooling for family member • A Future • Extra doses of Love (and worries)

6. Paramount welfare of the child • Convention on the Rights of the Child Article 3: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

7. Transgender Right to Found a Family • Article 8: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law • X, Y & Z v UK (1997)

8. A Child’s Right to a Family • Article 10 of the ICESCR, • Article 23 of the ICCPR • Articles 7 - 10 of the Convention of the Rights of the Child • positive obligation under international human rights law to protect the family

9. Founding a Family – birth families • X, Y and Z v UK Govt(1997) • Held: • This was a defacto family • Decided on ‘margin of appreciation’ • No common understanding of who could register as the father of a child conceived by Infertility treatment

10. Dissenting: Judges Casadevall, Russo and Makarczyk • Government(s) should accept the consequences of: • allowing X to have gender reassignment and • allowing Y to have fertility treatment • during which X was obligated to acknowledge paternity.  • This oblig(es) the government, to take all measures needed, without discrimination, to allow the applicants to live a normal life

11. Dissenting: Judge Thor Vilhjalmsson • as other non-biological fathers are allowed to be registered on the birth certificates of donor inseminated children, • to not allow X to do so is discrimination on the grounds of sex under Article 14. • the family ties between X,Y and Z were not being respected under Article 8.  • The fact that the male partner is a transsexual should be irrelevant.

12. Dissenting: Judge Foighal • in Cossey; held state legal measures should be kept under review to take account of medical, social and moral developments.  • the majority decision in X,Y and Z does not reflect the changes • part of our common European heritage • governments are under a duty to take special care of individuals who are disadvantaged in any way.  • (no) convincing arguments with regard to competing interests, • nor had they made any attempt to justify their failure to help X further by ensuring his change of sex receives legal recognition, which would help him and harm no-one,

13. Dissenting:JudgeGotchev • a contravention of both articles • from the standpoint of the "welfare of the child", which should be the prevailing consideration.  • this obligates a state to allow the ... de facto family ties to be legally safeguarded • to render possible from the moment of birth or as soon as practicable thereafter, the child’s integration into the family.  • This would include recognising X as Z’s father.

14. ex parte Gavin Mellor (UK) (2000) • Article 12 right • did not mean that a person must be given, at all times, the actual possibility of procreating his descendants. • Article 12 • could be used to challenge decisions not to give access to fertility treatment or applications for enforced sterilisation. • R v Secretary of State for the Home Department, ex parte Gavin Mellor (2000) LTL 4/8/2000)

15. M.G v UK (2002) • There is a Positive Obligation recognising a child’s right to a family • Argument the applicants wished to make in X,Y & Z v UK Govt (1997)

16. Founding a Family – by adoption • Impact of: • Gender Recognition Laws • New ones: UK, Spain • Old ones: Belgium, Czech, Denmark, Finland, Germany, Hungary, Netherlands, Portugal (unclear), Spain, Sweden • 13 states – non recognition • New adoption rights for single people

17. Draft European Convention on the Adoption of Children • Article 7 ss1 – Conditions for adoption • 1. The law shall permit a child to be adopted: • a. by two persons of different sex • i. who are married to each other, or • ii. where such an institution exists, have entered into a registered partnership together; • b.by one person. • States are free to extend the scope of this convention to same-sex couples who are married to each other or who have entered into a registered partnership together. • They are also free to extend the scope of this convention to different-sex couples and same-sex couples who are living together in a stable relationship.”

18. International Convention on the Rights of the Child Art. 21 • “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom” • “Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existingin the case of national adoption”

19. Fretté v. France (2002) ECtHR • Gay man refused the right to adopt as a single gay man, • net vote of 4 to 3, against Frette • the right to be free from discrimination in the enjoyment of other Convention rights (the right to found a family), does not apply because no other Convention right was sufficiently affected

20. E.B. v France (2008) • Lesbian Woman, application for authorisation for overseas adoption by a single person • Court reiterated: • the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt • Nor is a right to adopt provided for by domestic law or by other international instruments

21. E.B. v France – decision basis • the fact that the applicant's homosexuality featured to such an extent in the reasoning of the domestic authorities • the domestic authorities made a distinction based on considerations regarding her sexual orientation • the excessive reference to the lack of a “paternal referent” • the reference to the applicant's homosexuality was, if not explicit, at least implicit

22. E.B. v France - decision • the ... authorities made a distinction based on considerations regarding her sexual orientation, • a distinction which is not acceptable under the Convention

23. Transgender Adoption • Only 2 adoptions to date • 1977: ‘married’ Trans woman, had birth certificate amended under law of amendment for Intersex people. • 2003: Single Trans woman, inter-family adoption where sister had become seriously ill. • Many Trans Men and Partners are giving up adoptions, after getting nowhere • E.B. V France offers hope

24. Exponential Growth of the Trans Population • 20+ years ago • 10+ years ago • 5+ years ago • < 5 years ago