CAN a trans man who seeks to bear a child be living in his acquired gender for the purpose of the Gender Recognition Act 2004 (“GRA”)? This question faced Hayden J. in W v Gender Recognition Panel [2025] EWHC 2685 (Fam), [2006] 1 W.L.R. 1247. A trans man, W, appealed the decision of a Gender Recognition Panel not to issue a Gender Recognition Certificate (“GRC”). While the Panel accepted that W had gender dysphoria, it was not satisfied that he had “lived in the acquired gender throughout the period of two years” preceding his application for a GRC and “intends to continue to live in the acquired gender until death”, as required by section 2 of the GRA.

W had changed his name by deed poll, adopted male pronouns, dressed as a male and changed his name and gender on his passport. He was prescribed testosterone and had undergone a bilateral mastectomy. He used male toilets and changing rooms, sang in a male choir and played as a male in a mixed sex sports team. He had also had a course of speech and language therapy to deepen his voice. This “strong gender identity” was “navigated alongside his equally strong reproductive instincts” (at [33]). From an early age W had sought to conceive but had several miscarriages and unsuccessful attempts at IVF treatment (in the pursuit of which he had discontinued testosterone).

The Panel opined that some “aspects [of] biological sex such as childbearing and associated reproductive issues will […] almost certainly be relevant in assessing an individual’s genuine and enduring adoption of their new gender”. It noted that during the statutory two-year period, W had engaged in IVF treatment, albeit unsuccessfully, and had had a miscarriage. There was no indication that he had abandoned his hope to conceive and carry a baby. The Panel concluded that the applicant had not been living in the acquired gender, observing that: “Pregnancy is a fundamentally female biological function […] inconsistent with living in the male gender” (at [71]).

Counsel argued that this was to require W “to abandon the right to choose to conceive biological children (or take steps to conceive) as a precondition to obtaining a GRC”, which “is inconsistent with the State’s obligations under Article 8 of the European Convention on Human Rights” (at [67]). It was “arguably a form of sterility” (at [68]) or at the very least a significant interference with the applicant’s reproductive rights.

The principal question in the appeal was the statutory construction of the phrase living “in the acquired gender” (at [58], emphasis added) for which there was no statutory definition or guidance and scant authority. Case law had merely indicated that, unlike the issue of gender dysphoria, the question of whether a person has lived and intends to live in the acquired gender is not a medical diagnosis but rather “a matter of fact for the Panel on the basis of the totality of the evidence” (AB v Gender Recognition Panel [2024] EWHC 1456 (Fam), [2025] 1 W.L.R. 227, at [63]).

Hayden J. held that the GRA must be construed purposively as a permissive and humane piece of legislation, leaning “actively towards the facilitation of gender recognition”, predicated on ameliorating the avoidable distress of an applicant in an intermediate zone between two genders (at [15], [56], [60]).

He drew assistance from the judgment of Sir Andrew McFarlane P. in R. (on the Application of McConnell) v Registrar General for England and Wales [2019] EWHC 2384 (Fam), [2019] 3 W.L.R. 1195 (“McConnell”), in which the president concluded that being “a mother” is “a matter of the role taken in the biological process, rather than the person’s particular sex or gender” (at [139]) and acknowledged that the concept of the male mother is “not unknown to the law” (at [142]).

Addressing (and apparently agreeing with) counsel’s submissions, Hayden J. highlighted that, in AP, Garçon and Nicot v France ((Application nos. 79885/12, 52471/13 and 52596/13), Judgment of 6 April 2017, not yet reported), the European Court of Human Rights found a violation of Article 8 of the ECHR where conditions for gender recognition would result in sterilisation. He noted that the GRA permits a trans man to obtain a GRC “whilst having no surgical intervention of any kind and remaining physiologically female” (at [65]). W’s counsel had argued that “this must inevitably give rise to the physical possibility of a trans man conceiving and carrying a child” (at [65]). The tenor of Hayden J.’s judgment here is that the GRA should be interpreted to admit of the possibility that a person who is seeking to bear a child could still be living in the male acquired gender.

Hayden J. was clear, however, that the conditions for granting a GRC are “both ‘rigorous’ and ‘binary’” and that an applicant “who exhibits insecurity of gender or gender fluidity would not […] meet the applicable statutory criteria” (at [49]).

He held that childbearing and associated reproductive issues will always be relevant (at [50]) and agreed with the Panel that their significance “lies in illuminating whether the applicant has a ‘genuine and enduring adoption of their new gender’, not whether childbearing itself is inherently inconsistent with the statutory requirements” (at [51]). Hayden J. concluded that the Panel’s decision had diverged from its initial correct framing of the question, in that it was not multi-factorial. Rather, it “wrongly elevated pregnancy as fundamentally inconsistent with living as male”, “thereby giving that factor determinative weight” (at [72]). According to Hayden J., living in the acquired gender is a “far more subtle and nuanced concept” (at [75]). The Panel’s approach offended established rules of statutory construction in that it led to absurdity and inconsistency. Hayden J. observed, by way of example, that menstruation “must surely be a fundamental female biological function and yet that will not preclude the grant of a GRC” (at [75]).

In applying the multifactorial approach required in assessing the applicant’s genuine and enduring adoption of his new gender, Hayden J. indicated that physical/physiologic features (such as the applicant’s mastectomy) would be significant, as well as a “broad canvass of the life the Applicant is living, has lived, and intends to live” (at [80]). He concluded that there were two currents in the appellant’s life: “his clear and settled identification as male” in which sex there was abundant evidence that he was living; and “his desire to have a family” (at [93]). In Hayden J.’s judgment, there was “nothing further he could do to reconcile these two powerful instincts” and to “require him to abandon either one for the other would be to dismantle and fracture the person he is” (ibid.). Hayden J. was thus satisfied that the appellant fulfilled the conditions in section 2 of the GRA and allowed the appeal.

The court’s reasoning raises several issues. Reliance on the President’s judgment in the High Court in McConnell for the view that motherhood is not gender specific is problematic, since the subsequent Court of Appeal judgment appears to have taken a different view (at [2020] EWCA Civ 559 (Fam), [2021] Fam. 77). It noted that the effect of section 12 of the GRA is that, for the purpose of legal parenthood, even a person of the acquired gender is “still to be treated as having their gender at birth”. Therefore “it is not possible simply to say that Parliament has ‘de-coupled’ the concept of ‘mother’ from gender” (at [54]). W was thus engaging in female reproductive activities as a woman while presenting as a man and, as a matter of how the law applies, it is difficult not to conclude that W (acting as both a man and a woman) was exhibiting insecurity of gender.

That the Panel’s interpretation offended principles of statutory interpretation based on absurdity or inconsistency might also be challenged. At the heart of its conclusion was not the “female biological function” per se, but W’s choice to engage in it. Hayden J.’s menstruation example is suspect because menstruation, by contrast, is not something over which a person can have control in the absence of medical intervention.

On the sterilisation point, it could be counterargued that there was no question of interference with W’s bodily integrity or his being prevented from procreating. The fact that the GRA does not impose a requirement of surgical or medical treatment provides no basis for concluding that Parliament was thereby endorsing the view that a person could be living in the male gender when also seeking to conceive in a way only open to the other gender. As pre‑legislative scrutiny of the Draft Gender Recognition Bill (Cm 5875 (London 2003)), by the House of Lords and House of Commons Joint Committee on Human Rights (“Nineteenth Report of Session 2002–2003” (London 2003)) made clear, that concession was not to facilitate procreation but to “avoid discriminating against people who for some medical reason unconnected with their gender are unsuitable for particular kinds of surgical, hormonal or other treatment” (at [28]).

This was nevertheless a carefully considered decision which addressed “points of great sensitivity in a sphere which is both complex and contentious” (W, at [45]). It might be predicted that the outcome will divide opinion, some viewing it as a welcome, humane decision and others as parting company with common sense. It will probably not be the last word on the issue, which may require further judicial scrutiny and/or legislative clarification.