Briefing Note on the Lydia Foy Case and Transgender Transsexual Cases Generally

19 October 2007

Introduction

Transgender or transsexual persons are people whose psychological or 'brain' sex is different from their physical sexual characteristics. They feel they are women trapped in men's bodies or vice versa. They suffer from Gender Identity Disorder or Dysphoria, a well recognised medical condition.

People suffering from Gender Identity Disorder (GID) can be profoundly unhappy and sometimes suicidal. They want to escape from their current bodies and live permanently in what they believe is their true or real gender. In many cases their medical advisors believe the only way they can live at peace with themselves is through gender reassignment or "sex change", which involves hormone treatment and radical surgery to give them the physical characteristics of the gender they want to be.

Gender reassignment surgery is legal in all EU member states and is available on the National Health Service in the UK. It is not currently available in Ireland but the health boards/Health Service Executive have funded some Irish patients (including Dr. Lydia Foy) to have surgery in Britain. Surgical techniques have advanced greatly in recent years and gender reassignment is now much more common, and more successful, than before. It is still difficult and painful, however, and people do not undertake it lightly.

People with GID are frequently pressured by their family and community to conform to their birth gender. They are often deeply confused about their gender role and many try hard to fit in, including marrying persons of the (apparently) opposite sex and having children. But over time they become more and more unhappy and eventually decide to live in what they believe is their true sex and have gender reassignment surgery. This can cause great trauma and pain for the transgendered person and his or her family members and is not made any easier where there is no legal or administrative framework to deal with the practical problems that arise.

Some "sex changes" took place in the past and appear to have been coped with informally in society. But in an increasingly regulated world where proof of identity is required for even routine transactions, formal recognition of gender reassignment has become increasingly important.

Transgendered persons need to be able to produce identity documents like birth certificates that show their 'new' gender in order to avoid constant embarrassment or worse. Some of them want to be able to legally marry or form partnerships with members of the (now) opposite sex. And they want recognition of their 'new' or real gender and identity for their own dignity and self-respect.

The Law:

The first major legal decision on transgender issues in these islands was in the High Court in London in 1970 in the case of Corbett v. Corbett . Arthur Corbett, the heir to a British title, had married April Ashley, a male to female transsexual who had become a fashion model for Vogue magazine. The couple quarrelled fairly quickly and Mr Corbett sought a declaration that the marriage was invalid on the grounds that Ms Ashley was really a male, although he had known from the beginning that she was a transsexual.

The judge held that the key criteria for deciding sex/gender were chromosomes and internal and sexual organs at birth. He ignored psychological factors or the effects of gender reassignment surgery and stated that the essential role of the female partner in a marriage was to have children. On that basis he held that Ms Ashley was still a male and the marriage was void.

The Corbett decision dominated English and common law jurisprudence for more than 30 years, although, ironically, April Ashley's gender reassignment was eventually recognised in Britain 35 years later. Two years ago, after the passing of the UK Gender Recognition Act in 2004, she was finally given a birth certificate showing her female name and gender.

Attitudes were changing in continental Europe in the later 1970s, however, and in 1978 the German Constitutional Court held that transgendered persons should be able to change their birth records and civic status. Italy also introduced a gender change law in 1982 and it was upheld by the Italian Constitutional Court in 1985. Other European countries and a number of US states were also beginning to change their laws on this issue.

In 1986, the first of six transgender cases against the UK was taken to the European Court of Human Rights. In Rees v. UK , a female to male transsexual complained that the refusal to give him a new birth certificate or to allow him to marry a woman was in

breach of his rights under the European Convention on Human Rights (ECHR). The European Court of Human Rights in Strasbourg said that it was "conscious of the seriousness of the problems facing these [transgendered] persons and the distress they suffer", but that there was no consensus in Europe on this issue and it must be left to the individual states to deal with transgendered issues in their own way. The Court added, however, that "the need for appropriate legal measures should therefore be kept under review".

In Cossey v. UK in 1990, the Strasbourg Court rejected a complaint by transgendered woman Caroline Cossey, another male to female fashion model, but this time by a narrow margin (10 votes to 8). It repeated its call for the UK to keep the need for appropriate legal measures to assist transgendered persons under review.

European opinion was continuing to change on this issue, however, and two years later, in the case of B v. France , the Strasbourg Court held that France had violated the rights of a transgendered woman by refusing to issue her with identity documents in her 'new' gender. The court distinguished this case from the British ones because of the greater requirement to produce identity documents for all sorts of official purposes in France.

In two more UK cases, X, Y and Z v. UK in 1997 and Sheffield and Horsham v. UK in 1998, the Strasbourg Court held by a majority that the UK was still entitled to some leeway, called a "margin of appreciation" in how it dealt with transgender cases. The judges were clearly getting frustrated at the UK's failure to address this issue, however.

The Court said it

"cannot but note that despite its statements in the Rees and Cossey cases on the importance of keeping the need for appropriate legal measures under review, having regard in particular to scientific and societal developments ... it would appear that the respondent state has not taken any steps to do so" (Sheffield and Horsham, paragraph 60).

The Court went on to say that

"there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 of the Convention [the right to private and family life] in this case, the court reiterates that this area needs to be kept under review by the Contracting States".

Finally, in 2002, in the cases of Christine Goodwin v. UK and 'I' v. UK , the Strasbourg Court lost patience with the UK authorities' failure to take action on the transgender issue. In unanimous decisions, the Court noted that there was now

"clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals" (Goodwin, paragraph 85).

The Court declared that

"the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings" (paragraph 90).

The judges concluded that

"In the 21st century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable" (ibid).

They found the UK in breach of the Convention because of its failure to allow transgendered persons to acquire new birth certificates or to marry in their 'new' gender.

In the meantime, courts in New Zealand (1995) and Australia (2001) had effectively rejected the Corbett v. Corbett decision and allowed the marriage of transsexuals in their new gender, while the European Court of Justice (the EU Court) had ruled in the case of P v. S and Cornwall County Council in 1996 that the dismissal of a transgendered teacher from a school in the UK amounted to gender discrimination.

The UK Gender Recognition Act, 2004

In December 2002 the UK government announced that it was preparing new legislation to meet the criticisms of the European Court of Human Rights in the Goodwin and 'I ' cases, but before it could do so, another transgender case came before the House of Lords. Elizabeth Bellinger, a male to female transgendered person, had married Michael Bellinger in 1981. She now sought a declaration that their marriage was valid.

Giving the leading judgment in the case of Bellinger v. Bellinger in April 2003 , Lord Nicholls said he was

"profoundly conscious of the humanitarian considerations underlying Mrs Bellinger's claim. Much suffering is involved for those afflicted with gender identity disorder. Mrs Bellinger and others similarly placed do not undergo prolonged and painful surgery unless their turmoil is such that they cannot otherwise live with themselves. Non-recognition of their reassigned gender can cause them acute distress".

Despite this, he held that the court could not simply overturn English law and decide that Mrs Bellinger was now female. Instead, the Lords declared that the existing English law was incompatible with the European Convention on Human Rights, effectively passing the baton to Parliament to change the law. A year later the UK Parliament had passed the Gender Recognition Act, 2004, which allows transgendered persons to legally change their gender, obtain birth certificates and other documents in their 'new' gender, and marry persons of the (now) opposite sex.

The 2004 Act also protects children and former spouses of transgendered persons. It does not erase the record of the transgendered person's birth in the Register of Births or invalidate actions, including marriage, done in her/his former gender. Children can still get birth certificates showing their parents' original gender.

The Gender Recognition Act also applies in Northern Ireland so that it may not be long before transgendered persons from there who have re-married in their new gender - and who may be Irish citizens - may be seeking recognition of their marriages in the Republic.

Elsewhere in Europe gender reassignment is now very generally accepted. The only EU states that do not grant full legal recognition to transgendered people are Ireland and Lithuania. The European Court of Human Rights has just (September 2007) found Lithuania in breach of the European Convention on Human Rights because of its failure to legislate for gender reassignment surgery and legal recognition of transgendered persons.

The Court said : "States are required, buy their positive obligation under Article 8, to implement recognition of the gender change in post-operative transsexuals through, inter alia, amendments to their civil status data, with its ensuing consequences". It urged Lithuania to speedily change its law. If it does so, Ireland will be the last state in the EU not to grant full recognition to transgendered persons. Of non-EU states in Europe, only Albania, Andorra, Monaco and the Vatican decline to recognise gender change. The situation in a couple of other states is still unclear.

The Lydia Foy Case

Dr Lydia Foy was registered at birth as a boy. Growing up she was confused about her gender role but tried to live as a man. She married and had two children but gradually became more and more unhappy in her male role. She was diagnosed as suffering from Gender Identity Disorder in 1990 and was judicially separated in 1991. She had gender reassignment surgery in England in 1992 and since then has lived permanently as a female. The Eastern Health Board helped to finance her surgery. She was a qualified dentist but lost her job after her gender reassignment.

Dr Foy managed to obtain some official documents, e.g. a driving licence and later a passport, in her female name and gender but she was still legally a male and suffered embarrassment and humiliation whenever she was asked to produce her birth certificate or proof of her age or date of birth. She tried to obtain a new birth certificate both for practical reasons and as recognition of her 'new' gender and identity but was refused by the Registrar of Births.

In April 1997, represented by Free Legal Advice Centres (FLAC), she began High Court proceedings to try to get a new birth certificate. The case was heard over 14 days in October and November 2000 by Mr Justice McKechnie. This was before the European Court of Human Rights had finally ruled against the UK over its failure to provide transgendered persons with new birth certificates. Judgment was reserved and was eventually delivered on 9th July 2002.

Mr Justice McKechnie rejected Dr Foy's claim, relying, like the UK court in Corbett v. Corbett in 1970 on purely physical biological indicators to determine sex/gender. He acknowledged the difficulties faced by transgendered persons, however, and said that the issues raised in the case "touch the lives in a most personal and profound way of many individuals and are also of deep concern to any caring society". He suggested that the Oireachtas should discuss the issues involved and concluded his judgment by saying: "Accordingly, could I adopt what has repeatedly been said by the European Court of Human Rights and urge the appropriate authorities to urgently review this matter".

Two days later the European Court of Human Rights gave its judgments in the Goodwin and "I" cases, holding that the UK law and practice, which were almost identical to those in Ireland, were in breach of the European Convention.

Dr Foy appealed to the Supreme Court, but before the appeal could be heard, the European Convention on Human Rights Act, 2003 was passed, bringing the European Convention into Irish domestic law. The Act also provided that where Irish law appeared to be in breach of the European Convention, the courts could grant a declaration of incompatibility with the Convention. This was the same procedure that was used by the House of Lords in the Bellinger case.

Dr Foy amended her appeal to include an application for a declaration of incompatibility with the European Convention but in November 2005 the Supreme Court sent the case back to the High Court to deal with this point.

The case came before the High Court again in April 2007, exactly 10 years after it began in 1997. It was also nearly five years since the judgment by Mr Justice McKechnie when he had urged the Irish authorities "to urgently review this matter". Nothing had been done in the intervening period.

The case was heard over six days by Judge McKechnie, who was already familiar with the facts and the medical evidence which had been given nearly seven years earlier. During the hearing, Dr Foy indicated that she was no longer seeking to alter her entry in the Register of Births but that she wanted a new current birth certificate in her female gender, along the lines provided for in the UK Gender Recognition Act. That would also protect the position of her children, whose birth certificates would remain the same. If the court could not find for her under existing Irish law, she sought a declaration of incompatibility with the European Convention on Human Rights.

Judgment was reserved again.

If the court decides to grant a declaration of incompatibility in this case, it will be the first such declaration since this procedure was introduced by the European Convention Act in 2003. It is still not entirely clear what would follow from a declaration. The Taoiseach is required by the Act to report the making of the declaration to both Houses of the Oireachtas, and they then have to decide what to do about it.

There have been about 14 declarations of incompatibility so far under the UK legislation and to date all have led to changes in the law. If nothing was done here following a declaration, the case could then be taken to the Strasbourg Court, which would presumably find Ireland in breach of the Convention. The Court and the Council of Europe would be less than pleased if the Irish Government ignored such a clear warning that it was in breach of its international obligations.

Free Legal Advice Centres
18th October 2007