Court Affirms Transgender Rights

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Court Affirms Transgender Rights

By Paddy Clancy

A LANDMARK High Court decision on the rights of transgender people in Ireland could lead to “an explosion” of people coming forward with identity issues, a lobby group has predicted.

The judgment last week found Irish law “incompatible” with the European Convention on Human Rights.

Dr. Lydia Foy, a 59-year-old dentist from Athy, Co. Kildare, wanted the right to change her name and sex on her birth certificate, having undergone gender reassignment 15 years ago.

Once the formal court order is issued within in the next three weeks, the government will have 21 days to move on the issue, after Mr. Justice McKechnie said that those with gender identity disorder were suffering from an “incurable condition.”

Foy welcomed the ruling and said she was confident the government would move quickly to amend legislation.

Lobby group Gender Identity Disorder Ireland said the ruling would be welcomed everywhere.

The group’s president Sarah-Jane Cromwell said, “The judgment is going to have a fantastic ripple effect throughout the country, because even the most secretive of people with the condition are going to be looking at this, and it’s going to give them so much hope.”

She said recent international data suggested that as many as one in

2,500 of the population may have gender identity disorder.

She added, “I think there’s going to be an explosion of people coming forward once the law is changed.”

The Irish Council of Civil Liberties called the judgment “groundbreaking.” Director Mark Kelly said, “The ICCL calls upon the government to heed this judgment and to act promptly to ensure that the human rights of transgender people living in Ireland are fully respected.”

Fine Gael justice spokesman Charlie Flanagan called for some legislation to allow legal recognition for transgender people.

“Understanding, fairness and respect should be paramount on this complex and difficult issue,” he said.

The judgment was the first declaration of incompatibility with the

European Convention on Human Rights issued by the Irish courts.

Mr. Justice Liam McKechnie was also sharply critical of the failure of the state to enact legislation to deal with the situation.

He said he had 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 favor of transgender persons.

However, there was “no evidence” anything had happened since, although the appropriate way to deal with such complex issues was through legislation.

The judge said that gender dysphoria, the syndrome where a person’s sexual identity is at odds with their physical sexual indicators, was a real and recognized psychiatric condition and “a living tragedy” for many people who often had a burning desire to have their new sexuality legally recognized.

That desire was the reason why so many were driven to embark on a fight for legal identity which was humiliating and often unsuccessful.

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 transgender persons. Taoiseach (Prime Minister) Bertie Ahern must go before the Dail (Parliament) to outline how his government proposes to bring the state into compliance with the European Convention on Human Rights.

Foy spent 10 years on her legal battle for a birth certificate describing her as female and for a number of declarations under the European Convention, including that the system of birth registration in Ireland is incompatible with the convention if it prevents her registration as female at birth.

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 Foy changed her name by deed poll in 1993.

Foy’s estranged wife and children had opposed the proceedings, expressing concern about implications for the legality of the marriage and succession rights.

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 transgender persons under review.

Just two days after that judgment was delivered, the European Court of Human Rights ruled in favor 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.

In his ruling last week, McKechnie 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 transgender persons.

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