Support for LGBTQ+ families in the UK: Pride and prejudice?

As we celebrate Pride 2024 together, our family law team have been talking about how the law is adapting to keep up with the ever-changing LGBTQ+ family landscape – what makes a family and how do we ensure that we are one step ahead of the game when it comes to the legalities, whether about marriage, civil partnership, cohabitation or parenting? Here's a brief round-up…

• As proud legal supporters of the Donor Conception Network, (DCN) we are keenly aware of the difficulties that many couples face when starting a family – whether that involves assisted reproduction, surrogacy, adoption or step-parenting. DCN provides support, information and community to those using, or thinking about using, donor conception to build their family. DCN is properly inclusive and its resources and events are specifically aimed at same-sex couples, single people and heterosexual couples.

• Families come in all shapes and sizes. It is important to ensure that you have all bases covered when considering assisted reproduction or surrogacy in the UK or overseas, especially when it comes to protecting your legal status as a parent. You can find out more about that in our recent article here and by visiting our Surrogacy and Assisted Reproduction web pages.
• Diversity in court. Some good news – the Equal Treatment Bench Book has been updated recently. This aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. Its chapter on Sexual Orientation aims to give information to the judiciary about several key issues: from discrimination against LGB people; to hate crime; to coming out; acceptable terminology; the Equality Act and Family Rights. Bring it on!
• Time for change?  With the election only weeks away, will we have a new government next month with family law reform on the agenda? After all, we have same sex and opposite sex marriage and civil partnership, but there are over 3.6 million same sex and opposite sex couples living together in the UK (cohabitants) who have scant legal protection should their relationship break down. There is simply no safety net to protect the financially vulnerable. Shadow Attorney General, Emily Thornbury MP has announced that a Labour government would reform the law in this area, so we will have to just wait and see. 

A skip through some recent family law LGBTQ+ cases and outcomes …

AP v JP [2024] – get your GRC before you walk down the aisle…

AP had been born female and had undergone gender re-assignment surgery in 1990 to transition from female to male. He had not, however, obtained a Gender Recognition Certificate (GRC) by the time of his marriage in 2009, so his birth certificate showed him as still female. This meant that his marriage was void. In 2024, he married his wife again. So far so good. AP then applied for a decree of nullity in relation to the first ceremony as he said this would bring certainty, confirmation of his right to self-determination and identity, and enable people in an analogous situation to obtain relief. 

He was not successful - since AP and his wife were now legally married, they had all the rights available to each other under legislation which applies to married couples already. As such, he was not a direct victim of any alleged unlawful act under the European Convention on Human Rights.  Nor was there any reason for treating P as a victim on behalf of other transgender people who had married before the Marriage (Same Sex Couples) Act 2013 without a GRC.

Re J (Transgender: Puberty Blocker and HRT) [2024] and O v P [2024]

Delivered just 7 days apart, these judgments deal with nearly identical situations for the young people concerned.  Both 16 year olds, assigned female at birth, identify as male and have undertaken social transitions to present as their lived gender.  Their cases came before the family courts in the context of escalating parental disputes over the young person's wish to progress to cross-sex hormone treatment in light of the recently delivered Cass report. 

Watch out for our forthcoming post covering and comparing the decisions in both cases, where we also set out best practice for couples co-parenting following a separation in how to manage difficult decisions relating to their children before resorting to litigation.

• Feel the joy. So as Pride month begins, there is of course much to celebrate across the LGBTQ+ community, but the journey to equality continues, so wherever you are in life it's important to get informed and seek legal advice before (not when) you need it. 

 From all of us in the London family team at Withers, we wish everyone a very happy Pride month!