Appeal against transgender ruling withdrawn

Tue, Jun 22, 2010, 01:00

THE GOVERNMENT has withdrawn its appeal against a landmark ruling by the High Court that Irish law on transgender rights is in breach of the European Convention on Human Rights.

The decision brings to an end a 13 year legal battle against the State by Dr Lydia Foy, a former dentist who was registered as male at birth and fought for legal recognition to live as a woman.

It also paves the way for the Government to propose new legislation giving transsexuals the right to obtain birth certificates showing their acquired sex and the entitlement to marry in that gender.

Dr Foy, who began High Court proceedings to secure recognition of her acquired gender in 1997, said she was delighted the long legal battle was finally over. “I hope this achievement will help others who have endured the pain, abuse, isolation, humiliation and fear that have been the lot of those who are transgendered,” she said.

Transgendered people are those who have had gender reassignment surgery and treatment, having been diagnosed with gender identity disorder. This is a recognised medical disorder where a person’s psychological identity and physical characteristics diverge.

Support groups estimate at least 600 people suffer from gender identity disorder in the Republic. This number could be higher as people may choose not to come forward due to the stigma associated with the disorder.

Under current law a transgendered person cannot have a birth certificate issued with his or her new gender, and does not have the right to marry in that identity.

However, in October 2007 the High Court, in a case brought by Lydia Foy, stated that Irish law on issuing identity documents to transgendered people was incompatible with the European Convention on Human Rights (ECHR).

Mr Justice McKechnie ruled that the lack of a provision in Irish law for recognising Dr Foy’s new gender identity was a breach of her rights under Article 8 of the ECHR, which protects private and family life. “In this regard, Ireland as of now is very much isolated within the member states of the Council of Europe,” he added.

This landmark judgment overturned a previous ruling by the same judge of the High Court in July 2002, who found physical and biological indicators should be used to determine sex/gender.

Just two days after this ruling was delivered, the European Court of Human Rights in Strasbourg found in favour of recognising transsexuals’ right to legal recognition. A year later the Oireachtas enacted the 2003 ECHR Act, which incorporated the European Convention on Human Rights into Irish law and created the conditions for Ms Foy’s eventual legal victory in 2007. The Government’s decision to withdraw its appeal against the 2007 decision by the High Court means it will have to reply to that judgment.

Under section 5 of the ECHR Act 2003 the Taoiseach must bring to the attention of the Dáil and Seanad Éireann a declaration of incompatibility issued by the High Court within 21 sitting days.

In anticipation of the withdrawal of the legal appeal the Government has set up an inter-departmental committee on the legal recognition of transsexuals.

The gender recognition advisory group held its first meeting on May 6th and is due to make recommendations on legislation within six months. Under its terms of reference it is to propose heads of a Bill to provide for:

A process for legal recognition of the acquired gender of persons suffering from gender identity disorder who have made transition from one gender to another;

To set up a gender recognition register for such persons. The certificates issued by this register should be indistinguishable from birth certificates and not refer to the fact a person has acquired a new gender;

An entitlement to transsexuals to marry in the legally recognised reassigned gender.

Michael Farrell, senior solicitor for Free Legal Advice Centres, who represented Ms Foy in the case, called on the Government to act quickly to introduce legislation.