From Horus and Seth in Ancient Egypt to Emperor Hadrian and Antinuous in Ancient Rome, LGBTQ+ identities have formed part of society’s framework since antiquity. More recently, there has been legal and societal developments that have allowed open LGBTQ+ individuals not only to live without fear of legal repercussion but indeed to create families in a departure from the nuclear ideal.

This article discusses the history of open LGBT parenthood from the 1960s to present in England and Wales, the developments in the law and the state of the play today.

Start of Something New: The Sexual Offences Act 1967

Homosexual activity between men has been illegal since the the Buggery Act 1533, whilst homosexual activity between women was never explicitly illegal, oft romanticised, but socially unacceptable. As a result, LGBTQ+ parenting likely took place in a cloak and dagger manner, with queer identities often hidden.

There was a sea change in this respect in 1967, with the enactment of the Sexual Offences Act. This act decriminalised homosexuality (though the convictions remained in place until 2017) as public opinion on the topic had swayed somewhat and society became more permissive. Homosexuality was still seen as a public health issue however, with 93% of Daily Mail respondents at the time believing that homosexual men were in need of medical or psychiatric treatment. This inevitably affected LGBTQ+ people wanting to start families and, moreover, impeded legislative progress in this regard.

The 1970s: The Case of Dr Strangelove

Public opinion therefore had swayed to a more sympathetic, but still prejudicial, approach. An example of this prejudice can be seen in the London Evening News’s headline from January 5, 1978. Entitled ‘Dr Strangelove: The Belgravia man who helps lesbians have babies’; it was an exposé revealing that Dr David Sopher had been enabling lesbian mothers to have babies by artificial insemination.

The scandal garnered was even mentioned in Parliament. The MP for Brent North, Dr Rhodes Boyson, called for legislation banning artificial insemination, caling the practice “evil and selfish”. The public reaction was swift and often harsh also. Dr Sopher went into hiding and anti-lesbian sentiment rose, increasing the anxieties of lesbian mothers and, indeed, their children.

Despite the backlash, artificial insemination remained without legislative intervention and increasing numbers of lesbian women undertook both artificial insemination and donor insemination following the scandal, as opposed to in the context of a heterosexual marriage.

The 1980s: The sad case of Section 28 and the HIV/AIDS crisis

Despite this, public opinion continued to stagnate not only as a result of long held opinions but indeed by virtue of political agendas. Section 28 of the Local Government Act 1988 (colloquially known as section 28) stated that local authorities could not intentional promote homosexuality or promote the acceptability of homosexuality.

The ramifications of this legislation were huge. It essentially prevented teachers from protecting victims of homophobic bullying through education and studies in acceptability. It also implied an association between being homosexual and being a threat to children, a long held stereotype that stigmatised LGBTQ+ parenting further. It further created the idea that homosexuality was a choice and therefore, LGBTQ+ parents were electing to be alternative.

Additionally the 1980s saw the advent of the HIV/AIDS crisis, which saw homophobic and moralistic propaganda which sought (or indirectly caused) demonisation of an already vulnerable minority. The HIV/AIDS crisis again proved consequential in the stagnation of LGBTQ+ parenting rights in the 1980s and 1990s.

The 1990s: New Labour, Fresh Start

The 1990s saw an evolving perspective on LGBTQ+ people. While section 28 continued to be an impeding factor and HIV/AIDS continued to loom over the community, particularly gay and bisexual men, societal views were changing once again The first gay pride events took place in Manchester and Brighton in 1990 and 1992 respectively. The Criminal Justice and Public Order Act reduced the age of consent for homosexual sex from 21 to 18. Viewpoints on homosexuality remained less liberal than attitudes to, say, premarital sex, but they lowered over the course of the decade.

By 1997 the rise of Blair’s “New” Labour saw LGBTQ+ issues put firmly onto the legislative agenda. Blair’s first attempted repeal of section 28 came in 2000 and it was finally repealed in 2003.

Anti-discrimination measures protecting the trans community were first implemented under Blair’s Labour, with the Sex Discrimination (Gender Reassignment) Regulations 1999 extending the Sex Discrimination Act. This act made it illegal to discriminate on the grounds of gender reassignment. Further protections for trans identities were put in place in 2010 with the Equality Act adding gender reassignment as a protected characteristic, like that of age or religion.

The age of consent was reduced to 16 in January 2001 and any sex-specific provisions were removed, replaced with neutral offences which did not consider the biological sex of the participants.

In 2002, a year before the appeal of section 28, came the Adoption and Children Act. This Act allowed same-sex couple to become full and equal legal parents for the first time, as well as allowing same sex couples to jointly adopt/adopt their partners’ children. This was a huge step forwards in terms of LGBTQ+ parenting.

2004 proved to be a massive year for the LGBTQ+ community with the Civil Partnership Act allowing same-sex couples to register as partners, with the same legal rights and responsibilities of marriage. At the same time, the Gender Recognition Act 2004 became law, allowing transgender adults to formally change their gender markers and birth certificates to their identifying gender.

Later, under Gordon Brown’s premiership, the Human Fertilisation and Embryology Act 2008 came into force. This allowed female same-sex couples were allowed to register on a child’s birth certificate for the first time. Couples who were civil partners or who conceived at a UK fertility clinic could now be recognised as their children’s joint legal parents from birth.

Further amendments followed in 2010, with changes to surrogacy which enabled male same-sex couples to apply for parental orders recording the 2 men as legal parents.

The Labour governments of Blair and Brown represented massive steps forwards in terms of LGBTQ+ progress and allowed for LGBTQ+ families to be created with the same legal rights and entitlements as a nuclear family.

Conservative Rule

2010 saw the ascendance of Cameron and Clegg, which was followed with the introduction of the Marriage (Same Sex Couples) Act 2013. Introduced by Maria Miller on 24 January 2013, the bill commenced between 17 July 2013 and 10 December 2014. The bill made same-sex marriage legal whilst preserving the Canon law of the Church of England.

Later, in 2015, the Children and Families Act 2014 came into force, enabling same-sex parents through surrogacy to claim the same rights to time off work as parents giving birth or adopting a child.

Cameron’s government concluded in 2016, with May’s government following thereafter. Under May, the Human Fertilisation and Embryology Act 2008 was amended to allow a parental order to be made in favour of one person, including single gay men.

The State of our Union and the Future

In the period since May’s government, LGBTQ+ rights and progress have largely fallen off of the legislative agenda. Prime Minister Sunak’s recent promises to ban conversion therapy echo the premierships of both May and Johnson – it remains to be seen if the ban will be given the oxygen of parliamentary time.

The law has evolved significantly in a short expanse of time. As a 25 year old gay man, my lifetime has been characterised by sweeping legislative change which has served to protect me and to benefit my life, allowing me to be a parent and providing me with various options to be able to do so. There is more to be done, however, around transgender parenthood.

At present, transgender fathers who give birth to their child would still be referred to as ‘mother’ on the birth register, despite recent litigation which sought to change this. Case law has made clear a belief that the word mother is without gender, despite dictionary definitions to the contrary. This, in and of itself, may cause gender dysphoria, a sense of unease and distress a person feels due to the difference between their gender identity and biological sex.

However, there are exceptions to this rule. Section 12 of the Gender Recognition Act 2004 stipulates that the issuing of a gender recognition certificate does not affect the status of ‘mother’ or ‘father’. This exception was incorporated into the GRA to protect legal parenthood for parents who had children prior to changing their legal gender, in an effort to ensure a ‘continuity’ in parentage.

Therefore, if you give birth to a child in the UK, you will be automatically registered as a mother, even if you are legally male or identify as non-binary.

The definition of mother, according to the English courts’ interpretation of the Gender Recognition Act, is removed from its social context. A mother is therefore defined as one that has undertaken the biological process of conception, pregnancy and birth, irrespective of gender. Neither gender transition nor your legal gender affects the status of the person as the father or mother of the child.

However, the reality is not that simple. The word mother is grounded in binary societal norms dating back to the very origins of the word. To attempt to extricate the word from this context is an impossible feat, one that risks invalidating the experiences of trans individuals and potentially causing harm in the form of gender dysphoria.

As trans identities and non-traditional families become increasingly conventional, section 12 of the Gender Recognition Act provision has become outdated.

The recent case of Freddy McConnell is indicative of the lived realities of many trans parents and exemplifies the active tension within the current law. McConnell, a trans man who had legally changed his gender, gave birth to a son in the UK but was unable to register as his child’s father, parent or gestational parent. This decision was appealed all the way to the Supreme Court but the message was clear: the person who gives birth is considered to be the mother, regardless of gender.

The position becomes even more complex when considering the status of non-binary parents. Non-binary persons are not currently recognised within the law. It is foreseeable however that non-binary persons may be able to change their legal gender in the future, and it is as yet unclear how English courts are going to address issues around non-binary parentage at that stage. What is clear however, is that the law has not been updated to contend with such a scenario.

The legislation in this area requires review, particularly in light of recent news that 1% of 16–24-year-olds identify as different than their biological sex. To attempt to comment upon how the law will evolve going forwards would be a foolish exercise. What is clear however is that the new frontier of consideration for both legislators and officers of the court alike, is the intersection of gender identity and parentage.