Legal fictions and Sea-Unicorns

 

SEAHORSE, INCUBATOR, BIRTH-GIVER, FATHER

*For an update on Freddie's Fabulous Fallacies, see Shite Said Fred

Aye, that's right. Freddie is the Swiss knife of animal life. Freddie's probably also a poet,

although may not, as yet, know it.

What a guy. What a mother. What a sea creature and vagina-haver.

So, Freddie is angry that the British government refuse to change her child's birth certificate to record her as father. A lot of people are supporting McConnell. They say Freddie is the father, that it's archaic to have these gendered and binary roles. They also say adopted children have their birth certificates changed, so why can't Freddie? This, Freddie and supporters claim, is an offence against her and her child's human rights.

When a baby is born, the parents must get to the register office within a few weeks to officially record it. 

The mother can leave the father part blank, as it's recognised she may not know who is the father, or have his cooperation or even acknowledgement. She cannot just write in anyone's name without their express consent.

When it was decided that police should go larping as environmental activists, spending years - and millions - tricking whole communities, some women were duped into cohabiting relationships with them. Some even had babies in these coerced, duplicitous couplings, and after one day disappearing off the face of the earth, the father was ultimately revealed to be an undercover police officer who has lied through his teeth for years. With apparently kosher identities, these coppers groomed, even knocked up unwitting victims using the name and birth date of a sadly long dead baby - another fiction. Nice, isn't it? To not have the truth. A victimless crime.

(This police mindfuckery actually might be ok - even if this is the very same woman who took a heroic stand against a fast food conglomerate, because she is now a 'TERF' thus it's ok to attack her - thank god trans activists have their priorities straight)

If a woman wilfully and deliberately lies and claims another man is the father, she has committed a crime and can be sent to prison.

In the case of an adopted child, they, still, have a birth certificate recording the mother's name and details and hopefully the father's, too. Then when the adoption is formalised the child is issued with a second, amended birth certificate. The first one is still there. It is not overwritten. It is not hidden. But it is not the standard certificate that's shown when seeking a passport etc.

This is how adoptees trace their biological families. 

No one says 'oh dear, Mrs Jones! This birth certificate records that other woman as the actual mother! *The one who may have even been abusive!* No no no, Mrs Jones, I'm not allowing this! YOU are the mother - It is YOU who does the night time feeds and changes, the school run, the dinners - how dare they erase you! Let's just lose this, and have the REAL mother recorded'

No one does that. They appreciate that the document itself is belonging to the child. To prevent continual bureaucratic nightmares and afford some privacy, a second birth certificate is issued. This is the extent of the legal fiction afforded.

BECAUSE IT IS THE CHILD'S PAPERWORK 

Freddie McConnell is trans, and has had 'top surgery' (mastectomy) and taken testosterone, but like most transmen hasn't had the 'bottom surgery' like metoidioplasty or phalloplasty. 

My understanding used to be that transition was essentially the last option coping mechanism for people enduring intolerable dysphoria. It's the last option because it is so radical and isolating, exhausting and the changes are permanent and irreparable. But that's the only thing left to do sometimes, and the people driven to that have nothing but my sympathy and I want their lives made as peaceable and easy as possible. 

But I find it difficult to square this with Freddie's actions and demands. Being able to go through the most female thing in the world seems somewhat incompatible with needing to assert one's identity as a 'man'. Stopping hormone therapy and tracking periods, growing the baby with the kaleidoscope of eostrogen, progesterone etc that bombards you during pregnancy, seeing your body change and having endless exams on the very defining feature of a female body, this sounds like the most antithetical choice.

In a Guardian interview, Freddie was asked why he felt the need to go through so much to have a child that was 'his'. Why did having a child related by blood matter so much? After explaining that she feared adoption would be just as stressful, with an uncertain result and a longer waiting time, she said "Straight people don’t get asked, ‘Why didn’t you adopt? Why was it so important to be genetic parents?’ So why do gay and trans people get asked that?” 

I don't know if that's true though. It isn't as if Freddie was straight this would be a comparable story, because falling pregnant inside of a relationship doesn't normally require the planning and choices involved in insemination with donor sperm. If any lesbian couple or single parent went to these lengths to conceive a child they would face questions, and even if these were never uttered, many would feel the need to justify this. “It took me a long time to separate identity from biology" she said "I’m just using my hardware to do a thing. It’s pragmatic.”

I'm not judging her choices or 'validity' but 

it strikes me she's being somewhat disingenuous about her motivations. 

Freddie became pregnant just 10 days after having her legal documentation changed from female. That's quite fast, and it seems like Freddie was on a mission to smash pre-perceived ideas, in a bit of a rush.

The pregnancy came about via sperm donation. So, this is a child wholly reliant on Freddie and Freddie's support network.

That's not necessarily terrible, but it's loss, and a serious responsibility. The children born of sperm donation don't have a legal right to find out about their father until they're 18 years old. The father's details are thus blank on the birth certificate of Freddie's little boy. And depending on whether Freddie used donor sperm from the UK or not, it could always remain a mystery. 

After becoming pregnant, for which Freddie had to stop taking testosterone after about 4 years (luckily her uterus was still functional) Freddie became involved in a film project and was followed during her time carrying and giving birth. Medical exams are documented, as are scans; the birth is partially filmed, along with many conversations with Freddie's mum. Apparently it was only when asking the registrar to record her as father and being told this was impossibility did Freddie begin this crusade. 

I'm not convinced I believe that someone who has fought through so much beaurocracy, had to plan ahead and field the unholy number of questions as she has, wouldn't question this much earlier. It seems like an obvious thing, that on appearing at the register office with your documents and baby, she thought 'well, I am a man, am I not? clearly I am legally a man, and I'm sure in these situations a precedent exists whi...' Nah. Did no one - not her mother, documentary maker, midwife, obstetrician, friends, other activists, did no one ask or suggest this might be... problematic?

This whole episode has been about Freddie and her wishes. Despite what she has claimed about needing anonymity in her battle to be recorded as the father, describing a 'bone-deep urge just to keep your child safe' she invited a film crew into her home, her life, medical exams and spoke candidly about her feelings to them, even allowing access to the birthing pool. 

She felt "having that genetic link is something I felt I needed to have". Which is lovely. It is - as selfish as we parents often are about it - an innate urge that still leaves kids in care needing needing homes in a second (or third) class position, and that is a genuine human rights issue. But, as her recent case has shown, wanting to be recorded as something which is a legal fiction on someone else's documentation is not a human right. 

Freddie speaks a lot about being a dad and not a mother, and I can't help but feel this particular hurdle was anticipated a fair way ahead. 

Clearly, Freddie believes it essential, the truth - she has to be father. Fathers are men, right? Using her 'hardware' (i.e. female reproductive system) is 'pragmatic', but it's the only thing which she admits she must face. 

This becomes even more complex when considering she used intrauterine insemination fertility treatment, with donor sperm. While the actual father's name doesn't appear, her treatment is governed by the Human Fertilisation and Embryology Act which is classified as 'assisting women to carry children'. The very law which covered the conception of this child places Freddie as a woman and mother. This didn't stop her, however.

After wrapping up the filming and 'stumbling' across this new barrier, Freddie set up her website, wrote widely (she was a journalist for The Guardian) on her status as 'seahorse dad' and pressed ahead with making legal history as the father who gave birth. Without an inch of irony, Freddie demanded anonymity in this battle. She was afraid that revealing her identity would cause difficulties for her son.

Having sought to remain anonymous while simultaneously inviting media scrutiny on the exact same topic, Freddie and sympathetic media portrayed this as a ruthless and somewhat creepy obsession of the tabloids to interrogate her private life. In her media interviews and in her own output, Freddie is uncompromising on what she sees as transphobic content and motive in the media.

For the courts, upon realising that a film which clearly identified Freddie, her home town, mother, friends and even the birthing pool and delivery, the judge, Sir Andrew McFarlane, said this made McConnell's claim for anonymity incompatible and unreasonable. Freddies response was she never mentioned the whole birth certificate thing in the documentary - which is obviously true - how was she to know she'd encounter a Karen on the day she registered her son?

In court, her barrister put that ''The current argument used to resist change in the law is seemingly to allow transgender people to assume rights in their acquired legal gender only in some circumstances. It is a piecemeal approach and extremely problematic'

'The transgender community will be looking at this case as a measure in how the law understands their needs and fundamental rights; a cherry-picking policy simply cannot be endorsed going forward, and the courts should recognise this when they hear the case.'  

The 'cherry picking' here is based on a really, really simple principle - trans people can change their documents; their birth certificate, to record life as they would rather it was. Freddie is a biological female who 'utilised his hardware' / body, and is trying for another baby now. 

The thing which seems to be over her head is words have real meanings, ESPECIALLY in law and just as much as a woman who adopts a newborn baby might be the practical mother, the one who labours that love and is treated in every day life as a mother, when we're talking about law, definitions, manifest things, mothers are the maternal parent. 

The giver of mitochondria. The one who gestates and births. But Freddie's pursuit continued with her solicitor claiming it is “wrong to focus on giving birth as the determining issue when deciding parental role” on the birth certificate and that the judge “fell into error in determining the term ‘mother’ not to be a gendered term”. 

Freddie said she should not be referred to as a mother, as it has caused her psychological scarring. Her legal team have stressed the impact on her has been sidelined.

It seems like a slippery slope whereby everything is amended for the will of a single person, and with the consequence that could result in an 18 year old one day discovering their actual birth certificate is entirely constructed on falsehoods. Or maybe they wont, maybe the State, with it's gender recognition certificates, legal fictions and laws over registrations and sperm donors will all combine with a fragile parent's collusion to hide ancestral and biological fact.

 

Would there be more legal challenges if this was passed into law? You bet there would. How about when the biological father also wants to be recorded? Are we seriously meant to be ok with fabrications on the primary documents of babies, which could result in the absurdity of two father's and no mother? Gay couples who use a surrogate aren't recorded this way, it's as logical and fair as allowing a religious extremist to record herself as 'mother - servant of God' and the father as 'God' occupation 'omnipotent supreme being' with a note written in Latin explaining He cannot manifest for the registrar.

No one is interfering in Freddie's wish to be known as 'dad'. 'Mothering' is not necessarily the same 'gendered term', but my God be careful with the law and a change that could affect everyone, or at least some others; i.e. children.

“In society, being a mother is a social construct and for a person who is trying to move away from those gendered terms because of their gender dysphoria, then that is an offence to their right to a private life, an offence to their being and identity,” her legal representation tried in court. Freddie can have that social construct, and she has. But she doesnt have to keep putting her fictitious introversion in the the spotlight. She could just get on with it and the millions of people who know who she is need not, if she wanted. She could be an anonymous man in the street.

Our bodies carry the marks, scars and cells from gestating. We are what we are and motherhood is a definitive act of females.

The mothers of stillborn babies are still mothers; they carried, grew and birthed them, though often they feel they lost that title with their baby. This isn't just a social construct - it is real and it is often all they have left. I'm inclined to take their feelings more seriously. Recording a death certificate after a neonatal death, I dont want to see any grieving mother recorded as 'parent one', which is Freddie's alternative.

After the latest hearing, the law firm representing her said: 'Freddy McConnell's plight demonstrates just how important this recognition is, for him, his family, and his child. 'Maintaining the label of 'mother' may in the future force the child to disclose his or her procreational history, which should be a private matter."

But, Freddie's child, going by a pseudonym, and 2 years old, is in no position to voice an opinion. I become seriously irritated and cynical when what is all about Freddie and his/her identity becomes framed as an essential or important step to resolving problems with the whole family's identity. It just isn't true.

As for 'procreational history', are we seriously meant to be fighting for a scenario which could lead to a child believing their mother is their father, while their real father is unknown? That's one hell of a time bomb to set at the beginning of a tiny life. It is taking away the actual facts of a child's entry to the world and leaving the disclosure of truth to the parent. What if they don't want to? What if revealing the 'procreational history' of a parent to child feels unsafe, unnecessary, intrusive? 

This movement is extremely individualist. It's about the right of the individual to identify themselves in defiance of all else. It is the only thing that makes one 'valid' and everyone needs regularly reminding that they are 'valid'.

And while this is important, our identities are not formed in a vacuum but with interaction between others within society. I could call myself antifascist, but if support an ultra-nationalist party with authoritarian, dictatorial rule; believe in strong and rigid hierarchy in society and oppress and censor opposition to my beliefs, you could rightly call me a liar, an idiot or a fantasist.

But among all the hyperbole remains a simple fact; children deserve the truth on their origins, and the birth certificate is the first port of call. If Freddie's child decides in the future to track his biological father, I hope to god the reality and words used dont trigger emotional blackmail and similar accusations of erasing identity.

In court her brief speaks about 'the right side of history' and "We are talking about the impact on transgender people of being misgendered and it is the right and responsibility of this court to ensure that this does not continue. Parenthood has many hats and what we mustn’t do is tie this up in a gendered way.”

The birth certificate will be in use long after Freddie's death. No one is stopping the child from calling her dad, but there becomes a time where rights clash and wishing to overwrite the factual documentation of a baby, with no voice, is just wrong. Do we seriously view her fear of 'misgendering' is such a horror the child must be mis-parented?

When are birth certificates seen? When getting your first doctor; first passport; starting school. It is used in conditions where confidentiality are legal requirements. Freddie is clearly not shy about being trans, and is trying to smash expectations and traditional definitions. That, Freddie, doesn't work when a cloud of invisibility is conjured. You are not ashamed of who you are - good for you. But let's be real here - the whole debacle that is 'Freddie's fight for recognition' has been held in her sights for a very long time, as an integral part of the assault on social understandings, words, categories and laws. This is activism, not the need of one gender dysphoric person trying to raise a child without outing themself.

The debate over the Gender Recognition Act has been turbulent, and we are constantly being told children have an identity beyond that of their parents; that parents who disagree with a child's desires to transition are abusive, driving them to such distress they commit suicide. But the child in question here has no say in this, and if it were that these legal changes were implemented it leaves open a possibility that a child could never know the manifest truth on their ancestry. That really can harm people.

We are also told with moral imperative that we must respect the rights of vulnerable people. But no one is more vulnerable than a child, so fight your fight but at least don't try to stop other people from knowing who they are or from being acknowledged as the mother and father of a baby who has tragically died.

The biological reality, the fundamental and manifest truth is that Freddie is the mother. She can utilise the social constructivist view to its full potential, but there will always be inconsistencies because it is a compassionate nod to Freddie's feelings, to the feelings of trans people generally, to use a legal fiction in amending her documents. What it should not be is a thin end of the wedge Trojan horse that requires the whole of society to reconstruct reality with the feelings of trans people first and everyone else second. Live with the conflict, Freddie. Accept the law has already accommodated you with bestowing a title and category to you which is not based in fact. Be pragmatic.