FLAC calls for Government action to recognise Transgendered Persons

19 October 2007

Welcomes first ever Declaration of Incompatibility with European Convention on Human Rights

Free Legal Advice Centres (FLAC) today (19th October) welcomed the judgment in the Lydia Foy case and called on the Government to take immediate steps to provide legal recognition for transgendered or transsexual people.

FLAC, which represented Dr. Foy in this case, also welcomed the High Court's declaration that the law in Ireland on this issue is incompatible with the European Convention on Human Rights. This is the first ever declaration of incompatibility under the European Convention on Human Rights Act, 2003 and FLAC said that it showed that the 2003 Act could help defend human rights that were not sufficiently protected by our domestic laws.

FLAC said: "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".

The human rights body, which specialises in access to justice issues, paid tribute to Dr. Foy for her courage and determination in taking this case and persisting with it for more than ten years . It is just over five years since her application was first turned down in the High Court on 9th July 2002 , ironically by Mr Justice McKechnie, and she has struggled on since then with great courage and conviction, said FLAC.

We welcome the strong and courageous decision by Judge McKechnie to declare that the existing law fails to protect the rights of transgendered persons and that Ireland is now extremely isolated on this issue in the whole of Europe

FLAC welcomes the judge's compassionate recognition of the plight of the transgendered persons and their burning desire to have what they regard as their true gender legally recognised.

We welcome this decision to grant a declaration of incompatibility that now sends this issue back to the Oireachtas but with a strong message that the rights of transgendered people must now be officially recognised.

We welcome in particular the judge's statement that the court would be lacking in any integrity if it did not recognise that Dr. Foy's human rights had been violated.

"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".

FLAC thanked the members of its legal team, past and present, who have worked on this case over the last ten years, and all those who helped in researching the legal position around the world for the purposes of this case.


Notes for Editors:

1. Dr. Foy was originally granted leave to begin judicial review proceedings on 14th April 1997.

2. The case was first heard over 14 days in October 2000 and judgment was given by Mr. Justice McKechnie on 9th July 2002. He found against Dr. Foy. She appealed to the Supreme Court and the case was fixed for hearing in November 2005, but when she sought to raise issues under the European Convention on Human Rights Act, 2003, the Supreme Court referred it back to the High Court to deal with the ECHR issue. Dr. Foy then issued new proceedings in January 2006, which were clearly covered by the ECHR Act, and both sets of proceedings were heard together by Judge McKechnie in April 2007.

3. L v. Lithuania, European Court of Human Rights, Application No. 27527/03, 11 September 2007

4. Australia, New Zealand, Canada, South Africa and almost all states in the United States recognise transgendered persons and allow them to obtain new birth certificates.

5. Goodwin v. UK, 22 EHRR 123 and "I" v. UK, Application No. 25680/94. Judgment was given in both cases on 11th July 2002, two days after the judgment in the Foy case (No. 1). In Goodwin the Court found the UK in breach of the Human Rights Convention because of its refusal to allow transgendered persons to obtain new birth certificates or to marry in their 'new' gender. It added that any difficulties in family law that might be caused by legal recognition of transsexuals were manageable and society could be expected to tolerate some inconvenience "to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost".

Bellinger v. Bellinger [2003] UKHL 21, 10 April 2003. Elizabeth Bellinger, a male to female transsexual, had sought a declaration that her marriage to Michael Bellinger was valid. Bound by the precedent of a 1970 case called Corbett v. Corbett, the House of Lords decided that they could not recognise the Bellingers' marriage but said that it was clear that non-recognition of gender reassignment for the purposes of marriage was not compatible with Articles 8 and 12 of the ECHR (rights to respect for private and family life and right to marry).

In Corbett v. Corbett the Court had held that the marriage of Arthur Corbett to April Ashley, a male to female transsexual who became a Vogue model in the 1960s, was invalid. April Ashley is still alive and in 2005 she finally obtained a new birth certificate in her female gender under the UK Gender Recognition Act, 2004.


For further information contact FLAC at 01 8745690: email