THE STATE has decided to appeal the judgment in the Foy case, where the High Court declared that a person who underwent a sex change had the right to have his or her new identity recognised in official identity documents.
Dr Lydia Foy, who was registered as a boy at birth and subsequently underwent gender realignment surgery, made legal history last October when she obtained a declaration that certain provisions of the Civil Registration Act, governing the issuing of birth certificates, were incompatible with the European Convention on Human Rights.
The court found it violated her right to respect for her private life under Article 8 of the convention as it did not provide for "meaningful recognition" of her new gender identity.
This was the second time Ms Foy's case came before the High Court. In 2002 Mr Justice McKechnie refused her application to have her birth certificate altered, finding she had been born a boy, but urged the Government to review the position of transgendered people.
Two days later the European Court of Human Rights in Strasbourg found in favour of a British transsexual, Christine Goodwin, who had claimed the UK's refusal to allow her to amend her birth certificate violated her convention rights.
Ms Foy then brought a fresh case to the High Court, based on the jurisprudence of the Strasbourg court.
Two weeks ago the High Court made the formal declaration of incompatibility with the convention of the Irish legislation, the first ever under the Human Rights Act, which incorporated the convention into Irish law.
Under the Act Ms Foy is also entitled to seek compensation for the violation of her convention rights. She has already been awarded her legal costs by the court.
Mr Justice McKechnie granted a two-month stay on the declaration to allow the State time to consider whether it wished to appeal his ruling to the Supreme Court. A Government spokesman confirmed that the State lodged an appeal yesterday.
Mr Justice McKechnie indicated in his judgment that one means of bringing the State into compliance with the convention would be to introduce laws similar to the UK's Gender Recognition Act.