What’s in a name?
Appeal judges recognise child’s choice
Appeal judges have allowed a child aged 15, referred to in court only as “C”, to adopt a “completely conventional gender-neutral forename” in place of one normally used only by boys or men.
C, who identifies as non-binary, has been using the name since leaving primary school and wanted it to be changed as a matter of law. That could have been done very easily when C turns 16 in a couple of months’ time if C’s parents had asked the court to discharge a care order made some eight years ago. But the order for shared care was made in the course of what Lady Justice King called “bitter litigation” between C’s parents and it continues to govern the lives of their three children — even though both parents acknowledge that C’s identification as non-binary may be no more than a temporary “phase”.
C has a number of health problems and attends a school for students with social, emotional and mental health needs. Although continuing to identify as non-binary, C is no longer seeking gender-related medical treatment.
Sitting with Lady Justice Asplin and Lord Justice Baker, King granted an appeal against a ruling made in June by Judge Tolson KC, sitting at the family court in Reading.
Refusing to permit C’s name to be changed, Tolson noted that C preferred to be referred to by a gender-neutral pronoun but said in a judgment that he would not do so 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”.
King disagreed, for two reasons:
by the time the case came before the circuit judge, the only question for him to decide was “whether the given name which had been used for all purposes for a period in excess of three years by this young person, then aged 15 years 4 months, should now be given the legal recognition [C] greatly desired”.
The latest guidance to judges says it should be possible to work on the basis of a person’s preferred pronouns for most court purposes. “Many people now choose to use neutral pronouns regardless of their gender identity,” she added, “and the courts should equally respect their choice.”
The judge made reference to the welfare checklist and one would not expect a judge with the experience of this judge to go slavishly through each factor. Nevertheless, in my judgment, had the judge made a more detailed reference to the checklist he would not have fallen into the trap of paying what in my view amounted to lip service to C’s wishes and feelings and instead substitute his own view that to make the order would be in some way represent the court wrongly endorsing C’s non-binary status.
Rather the judge would have set against his reluctance to endorse C’s non-binary status what the [children’s] guardian regarded as the undoubted welfare benefits of making the order sought.
King explained that the appeal had been allowed because Tolson “fell into error in his approach and application to the critical welfare analysis which comes from a proper application of the welfare checklist”. It involved a change of name for a young person with full capacity who was about to turn 16 at a time when the use of forenames was becoming increasingly prevalent.
She stressed that her judgment was not a broader ruling on “gender”.
Very good explanation. I applaud for you managing to avoid using "they/them" yourself by simply referring to "C".
I do not subscribe to the view that it is fine to manipulate the English language to accommodate a very small number of people. So I'm genuinely grateful that you didn't.