AN unemployed dentist had been registered at birth as male, but after surgery is now female from a psychological and physical point of view, the High Court was told yesterday.
Dr Lydia Foy of Pairc Bhride, Athy, Co Kildare, was given leave by Miss Justice Laffoy to challenge a refusal by the Registrar General to correct the entry relating to her sex on her birth certificate from male to female. The action is also being taken against Ireland and the Attorney General.
Mr Bill Shipsey SC, for Dr Foy, said that his client was female at birth but suffered from a gender identity disorder called transsexualism. She was given a male name because of the mistake made at birth.
Gender reassignment surgery was carried out in 1992 and she was now a female. She was born on June 23rd, 1947.
He said that transsexualism was a recognised medical condition worldwide. Having the genitalia of a male did not mean one was in fact male.
His client wanted to have quashed the decision taken by the Registrar General to refuse to correct the entry by changing it from Donal Mark to Lydia Annice.
She was also seeking a declaration that the practice of using biological indicators existing at the time of birth to determine sex for the purposes of registration was ultra vires (outside the powers) of the Births and Deaths Registration (Ireland) Act 1863, as amended, and the 1880 regulations setting out the duties of registrars.
In an affidavit, Dr Foy said that she was, at birth, a congenitally disabled woman. She was suffering from an undiagnosed disability, namely gender identity disorder, commonly known as transsexualism.
As a result of her condition, she underwent surgery in July 1992 The doctor who carried out the surgery stated in a letter that she was now physically female.
Prior to the surgery, she was from a psychiatric point of view considered to be female. In a letter from another doctor, it was stated that he examined her in July, 1992, prior to surgery. He was satisfied that she was a male to female transsexual.
He recommended that, subsequent to her surgery, she be considered both from the surgical and psychiatric viewpoint as being a person of female gender.
In November, 1993, she changed her name by way of deed poll from Donal Mark Foy to Lydia Foy. On February 15th 1993, she was issued with a fresh passport stating her sex to be female.
She married Anne Foy in 1977, 15 years before her gender reassignment surgery. She was judicially separated from her on February 10th, 1992.
In future, Dr Foy said, she might wish to marry a person of the male sex. While her birth certificate continued to assert erroneously that she was male, she would be incapable of exercising her constitutionally protected right to marry.
For various purposes she was obliged to produce a copy of her birth certificate. Consequently, for those purposes she was necessarily considered to be male. This was a considerable source of frustration and embarrassment. She was from birth female.
The refusal of the Registrar to consider the recording of her sex at birth as male to be an error was based on theories which were considered to be outdated from a social, medical and scientific point of view. Dr Foy said that sex could not be considered from a biological point of view only. There was nothing in the 1863 Act or in the regulations that required sex to be determined by biological criteria only.
Her sex was central to her personality and aspirations. While she was, from a psychological point of view, female from birth, she had nonetheless committed herself to reassigning her genital sexual characteristics by way of major surgery and drug therapy over an extended period. Her sex was now confirmed as female.
The refusal of the Registrar to take account of her situation and/or the failure of the legislative framework to allow for her birth certificate to reflect her correct sex and, as a corollary, to allow for the male name mistakenly given to her to be changed, constituted a serious violation of her constitutionally protected rights to privacy, dignity and equality.