Irish law on transgender identity breached EU rights

Ireland has breached European human rights law over its failure to recognise a sex change that a transsexual underwent more than a decade ago.

In a landmark decision, the High Court urged the Dáil to review laws affecting those who undergo gender reassignment or face action from Strasbourg courts.

Dr Lydia Foy, a dentist from Athy, Co Kildare, was born a man but in 1992, aged 45, underwent gender reassignment.

She has fought a 10-year battle for her birth certificate to be altered to describe her as a female.

In a 70-page judgment Mr Justice Liam McKechnie said he could not force this change, but that Irish law was incompatible with the European Convention of Human Rights.

The judge said blocking Dr Foy from making an alteration to the birth certificate had gone against rights set out in the Convention.

Judge McKechnie said Dr Foy had suffered stress, humiliation, embarrassment and loss of dignity in dealing with her condition of gender identity disorder - well recognised by psychiatrists.

He said Dr Foy’s right to privacy may be affected if she is imprisoned or faces insurance claims.

She has managed to secure some official documents including a driving license and a passport.

The judge said, however, a birth certificate is considered a snapshot of time and historical record of fact.

He told the High Court his judgment must be laid before the Houses of the Oireachtas within five weeks and the issue addressed. If moves are not made to draw up new legislation dealing with the recognition of transsexuals Dr Foy will have the option of going to the European Court.

Dr Foy first took steps in 1997 to secure a new birth certificate and in a judgment in 2002 her case was refused. She appealed to the Supreme Court but before it could be heard the European Convention on Human Rights Act 2003 was passed, and adopted into Irish law.

Dr Foy amended her appeal to include an application for a declaration of incompatibility with the Convention but Supreme Court judges ordered the High Court to review the case and deal with this point.

All parties involved in the case have been given three weeks to assess the ruling. After that the matter must be laid before the Oireachtas to allow for a proper debate.

The Free Legal Advice Centre (Flac), which represented Dr Foy in her 10-year fight, called on the Government to take heed of the ruling.

Michael Farrell, Flac solicitor, said it should help break down prejudices and barriers faced by transsexuals.

“The Foy decision, which recognises the difficulty and pain undergone by the transgendered community and their family members, is an important step towards breaking down stereotypes, accepting difference and creating a more diverse and tolerant society in Ireland.

“We call upon the Government to seize the opportunity this decision offers to bring in compassionate and forward-looking proposals for change instead of remaining on the outer fringes of European opinion on this issue.”

Opposition politicians from the Labour Party and Fine Gael welcomed the ruling.

“This is a humane judgment which must now be addressed by the Government including, if necessary, changes to the law,” Joe Costello, Labour spokesman on human rights, said.

“As Mr Justice McKechnie noted in his judgment, those who undergo this process have a strong desire to have the change recognised not just socially, but also legally.”

Fine Gael’s Charlie Flanagan said: “The implications of the decision must be studied carefully and a response from Government will be required.

“I believe that some legal framework must be formed to allow legal recognition for transgender people. Understanding, fairness and respect should be paramount on this complex and difficult issue.”

In a compassionate ruling, Mr Justice McKechnie noted that Dr Foy's marriage had fallen apart after she suffered a breakdown in 1989 and psychiatrists diagnosed her gender identity disorder.

Within three years she had undergone extensive hormone therapy leading to the radical and irreversible gender realignment surgery in the United Kingdom.

The judge said Dr Foy’s former wife had lost a husband and her children a father. It is understood Dr Foy has had no contact with the daughters, aged 17 and 19, since undergoing the sex change operation.

One of the daughter’s celebrated her 17th birthday yesterday.

Dr Foy is separated and is currently going through divorce proceedings.

Outside the court she said hopefully the Government would take action to amend the law.

“This was about Article 8 (of the European Convention on Human Rights) which is about dignity and privacy... for other people coming on they won’t have to go through anything like this again,” Dr Foy said.