Was Prioritising A Child’s Chosen Gender The Wrong Thing To Do?

This is precisely the question recently before the Court of Appeal in the case of Re C (Re C (a child) (Change of Given Name) [2024] EWCA Civ 1582).

C, now 15 years old, has identified as non-binary since they were 12 years old; but, C’s parents had differing views relating to appropriate medical care for C. These proceedings started with an application by C’s father in August 2023 for disclosure of C’s gender-identity information and treatment records. C’s mother responded in September 2023 with an application for permission for C to change their name.

Due to the ban of puberty blockers for minors from 1 April 2024, this caused the issues in the father’s application to largely fall away. The only issue therefore before HHJ Tolson in the lower court in July 2024 was whether to grant C’s application to change their first name to something non-gendered; as their current given name was associated with that of a male person.

HHJ Tolson refused C’s application to change their name, and C’s Guardian appealed on C’s behalf.

C had been using their preferred name and pronouns socially for c.3 years, and wasn’t comfortable with their gendered given-name. C’s views had remained consistent before the court, medical professionals, and to the Children’s Guardian appointed to represent them.

A child’s wishes and feelings on an issue is a factor for the court to consider and the weight attributed often increases with a child’s age and/or level of maturity. Although C was diagnosed with a debilitating mobility issue, Complex Regional Pain Syndrome (“CRPS”) in 2018, and Autistic Spectrum Disorder (“ASD”) in 2021, at 15 years old there was no issue raised in relation to C’s capacity to understand the legal proceedings and expressing their wishes.

C’s father’s view was that changing C’s name was “a form of psychological or emotional harm as it reinforced his distorted sense of identity in such a way as to potentially progress him towards harmful alterations of his body”.

HHJ Tolson agreed, refusing C’s application to change their first name; and refusing to refer to C by their preferred pronouns, “they/them”, in their judgment because “the question of gender identity is at the heart of this case and to use anything other than the biologically appropriate ‘he’ risks giving the appearance of pre-judging the issues.”

However, by the time of the judgement gender-identity was no longer the key issue; it was about permitting a 15 year old to change their first name after already using it for three years, albeit related to gender.

Lady Justice King gave the lead judgement in the appeal, making a change of name order for C. It was also noted HHJ Tolson was wrong in their judgment not to refer to C by their preferred pronouns, namely “they/them” as gender identity was no longer the key issue and this position was contrary to the guidance in the Equal Treatment Bench Book (“ETBB”), in place since July 2024, to use a person’s preferred pronouns in legal proceedings regardless of whether they have obtained legal recognition of their sex/gender.

If the issues raised in this article are relevant to your circumstances and you would like to discuss them in further detail then please get in touch with our Family Law solicitors on 0330 828 1600 to enquire today. Alternatively you can request a callback.