Courage of plaintiff a source of inspiration


My favourite case:BILL SHIPSEY SC

What is your favourite case?

The case of Dr Lydia Foy, the transgender person who was born male and sought to have her birth certificate rectified to reflect her new gender. The Free Legal Advice Centres represented Dr Foy and I was brought in to work on the case.

At the first High Court hearing in 2000, Mr Justice Liam McKechnie gave the case an excellent hearing and was very sympathetic, but we lost – he felt it was a bridge too far.

And we were unlucky in another sense: two days after the judgment was delivered, the European Court of Human Rights in Strasbourg ruled that an almost identical male-to-female gender identity case in England contravened the European Convention on Human Rights.

When Lydia’s case came before Mr Justice McKechnie a second time in 2007, he ruled in her favour.

[This was a landmark ruling, as it was the first case in which an Irish law was found to be in breach of the European Convention on Human Rights.]

Why is this your favourite case?

Because it was one of the most interesting. Here you had an individual from a small minority who was seeking to assert an important constitutional right to privacy, but in order to asset her privacy right, she had to go very public in a way that took a huge toll on her life.

She was subject to ridicule, cat-calls, heckling. It brought out some of the worst in Ireland as well as some of the best. Here was a courageous woman saying: “In my soul I am a woman, but because of an accident of birth I am regarded as a man, and that is something deeply offensive to who I am, to my gender identity.”

The State had already given her a passport and driving licence to reflect her new gender, but her birth certificate, the most fundamental of identity documents, still said she was a male.

The State wasn’t doing it in any malicious sense, but Lydia had taken radical steps to have surgery to make her body more congruent to what she felt she was.

She was asking the State to take the final step and recognise that with an amended birth certificate from the Registrar General.

It’s understandable that the State wants to preserve the integrity of that system, but there was a tension between not making it easy for people to interfere with such a fundamental document and recognising a small minority born with transgenderism.

Lydia was prepared to take it on in a very courageous way. Most people would not have put their head above the parapet.

What was fascinating about the case was the expert evidence.

One of the world’s leading transsexualism experts gave explanations of the different parts of the brain that ultimately decide whether you’re male or female and trigger various parts of your body to grow and develop. It was fascinating from a neurobiological point of view.

By that time, medical science had recognised that this was genuine, that the person had a genuine conviction that they were trapped in a male or female body.

What did you learn from this case?

The problem with that question is that barristers think they know everything! You learn a lot about the courage of those (like Lydia) prepared to take on unpopular causes.

The thing about legal controversy is that it’s not just confined to the people involved. It can excite people’s passions, be it Quinn versus Anglo or the Lydia Foy case.

The second time around, Gerard Hogan was on the case. Gerard is the finest constitutional lawyer I think the State has ever produced. He was brilliant to work with.

Ultimately it was a win-win for all of us. It made you prouder to be Irish. Up until that point, Ireland was among a handful of states in the Council of Europe such as Malta and Andorra that would not allow for the birth cert to be amended for transgender people.

It was a very positive feeling – the ability of the law to change and for us all to move on, to mature and develop in terms of our understanding of the meaning of privacy.

How did this case differ from those you usually work on?

The fortunate thing about being a barrister is that although it’s becoming much more specialised, it’s still the case that we get to decide what we take on. I can be doing Quinn and Anglo one day, and then get involved in an asylum seeker’s case for amnesty another.

My bread and butter – and jam – is commercial work, but I can still do other cases. Obviously the bigger commercial cases, from a lawyer’s point of view, they’re fascinating, but the Foy case had it all.

In conversation with Caroline Madden