A dentist who underwent a sex change operation has made legal history after the High Court declared yesterday that the failure of the State to provide for "meaningful recognition" of her female identity violates her right to respect for private life under article 8 of the European Convention on Human Rights. Mary Carolanreports.
Mr Justice Liam McKechnie, in granting Dr Lydia Foy the first declaration of incompatibility with the European Convention on Human Rights issued by the Irish courts, was also sharply critical of the failure of the State to enact legislation to deal with the situation of transmigrated persons.
He had stressed the urgent need for such measures five years ago and that need was also underlined by a pattern of European court decisions in favour of transgendered persons, he said. However, there was "no evidence" anything had happened since, although the appropriate way to deal with such complex issues was through legislation.
The State, "for whatever reason", had decided not to act and was very much isolated within the Council of Europe states in that regard. Nor could the court, "with any integrity", find the State, by its failure to act, was within the margin of appreciation allowed by the European Court to member states.
Gender dysphoria, the syndrome where a person's sexual identity is at odds with their physical sexual indicators, was a real and recognised psychiatric condition and "a living tragedy" for many people who often had a burning desire to have their new sexuality legally recognised, the judge said. That desire was the reason why so many were driven to embark on a fight for legal identity which was humiliating and often unsuccessful. Everyone, as a member of society, had a right to human dignity, he said.
While the judge's decision does not strike down any laws in the Republic, it puts an onus on the State to address urgently the situation of transgendered persons.
Once the formal court order is issued, which will not happen for at least another three weeks to allow the sides to consider the judgment, the Taoiseach will have 21 days within which to go before the Dáil to outline how it is proposed to bring the State into compliance with article 8. It is also open to Dr Foy to seek compensation.
The judge indicated that one means of bringing the State into compliance with article 8 would be to introduce laws similar to the Gender Recognition Act in Britain, under which a person may secure identity documents and new birth certificates reflecting their new sexual identity without their original birth or marriage certificates being affected.
He was delivering his 70-page judgment on a 10-year legal battle by Dr Foy (59), Athy, Co Kildare, for a birth certificate describing her as female and for a number of declarations under the European Convention on Human Rights, including that the system of birth registration here is incompatible with the European Convention on Human Rights if it prevents her registration as female at birth.
Dr Foy's case was supported by the Free Legal Advice Centres.
Born Donal Mark Foy, she married and fathered two children before undergoing gender realignment surgery almost 15 years ago. The marriage ended in the 1990s and Dr Foy changed her name by deed poll in 1993. Dr Foy's estranged wife and children had opposed the proceedings, expressing concern about implications for the legality of the marriage and succession rights.
In the High Court in 2002, Mr Justice McKechnie, having found Dr Foy was born male, refused her application to have her birth certificate altered but urged the Government to keep the situation of transgendered persons under review.
Just two days after that judgment was delivered, the European Court of Human Rights ruled in favour of British transsexual Christine Goodwin who claimed Britain's refusal to allow her to amend her birth certificate violated rights guaranteed by the European Convention on Human Rights.
Yesterday, the judge said the facts as found in his 2002 decision remained as found. However, the European Convention on Human Rights had since found against Britain in the Goodwin case and, if anything, Ireland was even more neglectful than Britain in failing to address in a meaningful way the rights of transgendered persons.