Does family law still need to evolve to recognise and protect the LGBTQ+ community?

Family law has played a significant role in evolving rights for LGBTQ+ people in England and Wales.

To mark LGBTQ+ history month this February, Hannah Saxe reflects on the key legal milestones that have helped to progress this issue to where it is today and explores where the law can further develop to support the rights and recognition of the LGBTQ+ community.

Key legal milestones so far

1967 — a significant step for gay men

Most significantly, in 1967 sex between two men over the age of 21 was decriminalised in England and Wales. 

While this was a hugely positive step, it only benefited gay men — not the entire community. In addition, gay sex remained illegal in Scotland and Northern Ireland until 1982 and equality legislation failed to protect transgender people until 2010, when the Government included gender reassignment as a protected characteristic. 

2000s — a raft of positive legislation

Thankfully, there was a raft of positive legislation in the 2000s, including:

• Lowering the age of consent for gay sex to 16 in 2001.
• Same-sex couples being given equal rights when it comes to adoption in 2002.
• Passing the law to permit Civil Partnerships in 2004. 
• Recognising same-sex couples as legal parents of children conceived through the use of donated sperm, eggs or embryos under the Human Fertilisation and Embryology Act 2008. 

Later, in 2014, same-sex couples gained equal marriage rights in England, Wales and Scotland, with Northern Ireland eventually following suit in 2020. 

Current legal issues facing the LGBTQ+ community

However, the journey towards legal recognition and protection for the LGBTQ+ community has further to go.

Conversion therapy

The charity Stonewall continues to campaign for a full legislative ban on conversion therapy in the UK. While it’s difficult to know exactly how prevalent such practices are today, a 2018 survey suggested that around 5% of the 108,000 respondents had been offered some form of conversion therapy, with 2% actually undergoing it.

Puberty blockers & gender dysphoria

Another area that has recently made headlines is the UK’s indefinite ban on puberty blockers, with Health Secretary Wes Streeting stating: "It is a scandal that medicine was given to vulnerable children without the proof that it was safe or effective."

Critics of the ban claim that this move is discriminatory and it’s clear that the courts' approach to this issue is still evolving. We’ve seen various recent cases regarding the reaction to and treatment of gender dysphoria, which highlight the ongoing legal and ethical debates surrounding its treatment in minors — particularly around their capacity to consent to medical interventions and the role of parental and court oversight.

Fertility treatment & surrogacy

While many LGBTQ+ people are still required to break the bank to access fertility treatment, there have been recent steps in the right direction. 

In November 2024, the Government scrapped an outdated law that required same-sex couples to pay up to £1,000 for safety screening tests when accessing treatment, when this wasn’t a requirement for heterosexual couples. The law also changed to allow same-sex couples with non-transmissible HIV to have IVF in UK-licenced clinics. 

Yet although single women and same-sex female couples can access treatment on the NHS, there are strict eligibility criteria. Such decisions are made by Local Clinical Commissioning Groups, so the outcome depends on where in the UK the person or couple in question lives. This often means that people themselves having to pay privately for treatment — accruing a bill that can run into five figures.

Similarly, single men and male same-sex couples who choose to conceive with the help of a surrogate must pay privately for their connected IVF treatment, as this isn’t funded by the NHS.

In March 2023, the Law Commission made recommendations to reform the law surrounding surrogacy in England, Wales and Scotland. Yet at the end of 2023, the Government ran out of parliamentary time to consider the report and potentially start the process of changing the law. With the new Government now in place, this work could well be resumed. 

At present, the surrogate (and her spouse, if she has one) are the legal parents for a child born via a surrogacy arrangement from birth until such time as a Parental Order is made by the court to transfer parenthood to the intended parents. This can leave surrogates in the uncomfortable position of having to make decisions about the child’s upbringing, such as consent to medical treatment. 

Another major criticism of the law as it stands is that surrogacy agreements can’t be enforced — meaning that those involved remain in legal limbo until a Parental Order is made. This can take up to 12 months due to delays in cases getting to court — and until then, anyone involved can withdraw their consent to the arrangement, creating stress and uncertainty. 

Proposed reforms to surrogacy law include the introduction of a new administrative pathway that provides for counselling, medical checks, welfare checks and legal advice prior to conception. Crucially, the surrogate and intended parents would be able to reach an agreement before conception — meaning that the intended parents would automatically be legal parents from birth and wouldn’t need to apply for a Parental Order. However, there would still be safeguards built-in so that the surrogate could withdraw her consent. 

On 9 October 2024, the Government was asked (in a written question) whether the Secretary of State for Health and Social Care would be responding to the Law Commission’s report. The response was that: “The Parliamentary Under-Secretary of State for Patient Safety, Women’s Health and Mental Health will be meeting with the Law Commission shortly to discuss its report and draft bill on surrogacy, and to inform consideration of the Government’s next steps.” We’re therefore no closer to legal reform at this stage but it may well be on the agenda for future sessions of parliament. 

Legal terminology

Terminology is another area where the legal position hasn’t necessarily kept pace with societal changes. 

Currently, a child can have only a maximum of two legal parents. The person who gives birth will always — in law — be classed, referred to and named on the birth certificate as ‘mother’, with the second (if applicable) as ‘father’ or ‘second legal parent. 

In 2020, Freddy McConnell unsuccessfully took his bid to be named his child’s father to the Supreme Court. With cases like this in mind, any change to the terminology surrounding parenthood looks a long way off. 

Aside from the terminology attached to parents, there’s also continued discussion surrounding what birth certificates should detail, especially in cases around assisted reproduction with gamete donation or surrogacy. 

The debate revolves around the right to know and access information versus the right to privacy. Again, at present there’s no change on the horizon — yet as with many issues surrounding the path to parenthood, approaches that date back to a time well before medical and social advances won’t suffice forever. 

Working at the forefront of LGBTQ+ law

We’re proud to stand as allies of the LGBTQ+ community. Our work in family law has taken us to the forefront of legal developments in relation to family building. 

We eagerly await the Government’s next moves, particularly around reform of surrogacy law, which would mark a significant step forward in the progression of gay rights.

Looking for advice? Our specialist family law solicitors are here to support you. 

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.