France’s Supreme Court has ruled that a transgender woman is not recognised as the natural mother of the child she conceived before the completion of her transition (“gender reassignment measures”) but after official registration as a woman. The 51-year-old had to adopt the child in order to become its legal mother.

“Claire” (name changed by the court) was born with biologically male reproductive organs and had two children with her wife in 2000 and 2004. In 2011 she officially registered as a female. Three years later, when she still had male reproductive organs, the couple had a third child, a girl.

Six-year legal dispute

Since then, Claire has been engaged in litigation in order to be recognised not as the child’s father but as the child’s second mother.

French law does not provide for such cases, but in 2018, an appeal court in the southern French city of Montpellier granted her a new status, that of “biological parent” (“parent biologique”).

However, on 16 September, the Court of Cassation rejected this decision on the grounds that “outside of adoption, it is not possible to establish two maternal parentages for the same child”.

“In sum, it means telling my client: either you adopt or you are not her mother,” Clélia Richard, one of the lawyers, told the Libération newspaper. She described the verdict as “scandalous”, the judicial system being “rigid and immobile, as is often the case”.

The case has now been referred back to a lower court for a new hearing. Claire’s lawyers* said they were preparing to take the matter to the European Court of Human Rights.

No rewriting of the past

Ludivine de la Rochère, head of La Manif pour Tous, a movement founded in 2012 to combat same-sex marriages and to protect and promote traditional family models, considers the ruling to be confirmed.

“If ‘Claire’ was able to conceive a child with her partner,” de la Rochère told CNews, “it was because she was a man and therefore the father. We cannot rewrite the past.”

For lawyer Anne-Marie Le Pourhiet, the court’s decision was also “reasonable”. She said that if the courts had granted the legal civil status of a mother to a transgender person born as a man, “this would have distorted the law on descent”.

“Attributing two mothers to a child when one of them is biologically its father means turning the child’s personal story into fiction in the name of an adult’s desire,” she told the newspaper La Croix.

For lawyer Bertrand Périer, representing the APGL (Association of Gay and Lesbian Parents) and Acthé (Joint Association for the Equality of Trans and Homo), on the other hand, the judgment is “a considerable step backwards towards a concept of parenthood which was thought to have been buried for a long time”.

“It is a way of bringing trans people back to their original identity by very seriously denying their process of transition and the recognition of their sex granted by the Republic. Humanly, this is terrible.”

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