Trans Rights and the Law
7 May 2009
Presentation by Michael Farrell, Senior Solicitor, FLAC
Transforming Attitudes Conference, 17 April 2009
I would first of all like to congratulate TENI, USI and BeLonG To for organising this important conference to raise awareness and understanding of the difficulties faced by transgendered people and provide affirmation and support for transgendered people themselves.
I would also like to pay tribute to Dr. Lydia Foy for her courage, patience and perseverance in taking her case for legal recognition in her female gender. She began her legal proceedings 12 years ago this month, represented by Free Legal Advice Centres (FLAC) as she could not get anyone else to represent her. It has not been an easy road for her to take, especially as there was a great deal less awareness and understanding about gender identity issues in 1997 than there is today. Indeed, a good deal of the awareness and understanding that there is today is due to Lydia's often lonely struggle, which brought the issue to public attention but at considerable personal cost to Lydia herself.
It has been my privilege to represent Lydia Foy for the last four years and I have learned a great deal from the experience, especially about the pain and hardship that transgendered people have to go through, but I would also like to pay tribute to my predecessors as FLAC solicitors, who began and carried on this case in more difficult times.
And, of course, Lydia's struggle is not over yet, for although she achieved a major victory when the High Court ruled in her favour 18 months ago, the State has appealed that decision and we are still awaiting a date for hearing in the Supreme Court.
I want to say a little about what actually happened in the High Court. First of all, the Court did not order that Lydia's gender should be legally recognised or that she should be issued with a new birth certificate in her 'new' or 'acquired' gender. The Judge held that the state of Irish law did not allow him to do that. Instead, he made a declaration that by failing to recognise transgendered people, Ireland was in breach of its obligations under the European Convention on Human Rights, which we are bound to implement as a member state of the Council of Europe.
Two things need to be said about this. To obtain legal recognition of transgendered people, Irish law needs to be changed. And the High Court decision does not change the law; it merely warns the Government that it is and will continue to be in breach of its human rights obligations if it does not do so. The Government has to decide to change the law and I would like to take the opportunity of this conference to call upon the Government to stop dragging its feet on this issue and commit itself now to make that change.
Let us look at what Mr Justice McKechnie actually said in his judgment in the Foy case in October 2007. And it must be borne in mind that this is the same judge who heard Lydia's case originally, nine years ago, and then held against her because the weight of legal precedent and deeply engrained gender stereotypes embedded in the law prevented him from finding in her favour.
But even at that stage, nine years ago, Judge McKechnie was concerned about what he had heard in the course of the hearing, which had brought the whole question of gender identity issues to public attention in this jurisdiction for the first time. He said in his judgment in 2002 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 called on the Irish authorities "to urgently review this matter".1
Ironically, two days after Judge McKechnie delivered his judgment in July 2002, the European Court of Human Rights also delivered judgment in the case of two transgendered persons, Christine Goodwin v. the UK and "I" v. the UK.2 The Strasbourg Court, which had been wrestling with the issue for 16 years, mostly in cases concerning the UK, finally and unanimously held that the UK's failure to provide for legal recognition of transgendered people was a breach of their rights under the European Convention.
And that, of course, led to the introduction of the Gender Recognition Act in the UK in 2004.
And, just in passing, it is interesting to note that in 2005, courtesy of the Gender Recognition Act, transgendered woman and former model April Ashley finally received a birth certificate in her female gender. April Ashley was the defendant in the UK case of Corbett v. Corbett3 in 1970, when her wealthy husband, who had married her in full knowledge of her background, sought to have the marriage declared null rather than obtain a divorce.
The judgment in Corbett v. Corbett, which in crude and offensive language held that Ms Ashley was not 'a real woman' and that marriage could only legally occur between a biological male and a biological female, was relied upon for years in every common law country to deny legal recognition to transgendered persons and hung like a millstone around their necks. And more recently it was also quoted in this jurisdiction in the case of Zappone and Another v. The Revenue Commissioners,4 where the High Court refused to recognise the Canadian marriage of same-sex partners, Katherine Zappone and Ann Louise Gilligan.
Now that the former Mrs Corbett has been officially recognised as a female, hopefully we will have heard the last of Corbett v. Corbett with its crude gender stereotypes and its exclusivist concept of marriage.
Returning to Lydia Foy's case, however, by the time Judge McKechnie came to hear it again in 2007, in a slightly altered form, the European Court of Human Rights had stated clearly and unambiguously that transgendered people had a human right to be recognised in their chosen gender. The UK had changed its law, which had been almost identical to the law in this jurisdiction, by the introduction of the Gender Recognition Act, 2004, and the European Union Court of Justice had held, in a pensions case, that the ban on transgendered persons marrying in their chosen gender was in breach of EU law.5
But nothing at all had been done in this jurisdiction. Judge McKechnie's annoyance and frustration at the Government's failure to address the issue was palpable in his second judgment given in October 2007. He said: "It must be seriously questioned whether the State has deliberately refrained from adopting any remedial measures to address the ongoing problems".6
He added: "Ireland is now very much isolated" among the member states of the Council of Europe and "must be even further disconnected from mainstream thinking" on this issue.
This was strong language for a High Court Judge to use. He still could not find anything in Irish law that would enable him to grant Dr Foy's application for a new birth certificate. But the European Convention on Human Rights Act had been passed in 2003, providing that where something was in breach of a person's rights under the Convention and no remedy was available under Irish law, the Court could grant a declaration that the law was incompatible with the Convention.
Judge McKechnie granted a declaration that the fact that the law prevented Lydia Foy from obtaining a new birth certificate in her female gender was incompatible with her rights under Article 8 of the European Convention, which protects private and family life. It was the first declaration of incompatibility made under the ECHR Act, 2003.
Because a divorce application by Dr. Foy had not been finalised at that time, Judge McKechnie could not rule on whether Irish law was also incompatible with Article 12 of the European Convention, which protects the right to marry, but for good measure he added "lest the State be in any doubt", that he would have made a declaration of incompatibility in relation to Article 12 as well if he had been in a position to do so.
However, as I said earlier, declarations of incompatibility do not, of themselves, change the law. They simply put pressure on the government to do so - though in the UK, from where we imported the idea of such declarations, the government has so far acted on all the declarations made by the courts and has changed the law to remove the incompatibility identified by the court.
In this case, since the State has appealed the High Court decision, the declaration procedure is stalled until the Supreme Court hears and determines the appeal. And, given the long delays in the Supreme Court, that could be another two or three years from now.
But since the Goodwin and "I" cases against the UK, the European Court of Human Rights has confirmed and reinforced its stance on transgender rights in a number of other cases7 and Ireland is now the only EU member state not to provide for legal recognition of transgendered people and one of only a tiny handful of states in the whole of Europe.
The UN Human Rights Committee last year called on the Government to change the law on this issue8 and the Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has several times said the same - and, of course, he reiterated his concern in his video address to this conference today.
Recognition of transgender rights is now the norm in Europe - and in most democratic countries around the world and it is incontrovertibly a legal obligation under the European Convention on Human Rights. Ireland is now the exception and the onus should be on the Government to explain why it does not recognise transgendered persons in their chosen gender, rather than the other way round.
That is why I want to repeat the call for the Government to act now on this issue. They do not have to wait for the outcome of their appeal to the Supreme Court in the Foy case. The legal obligation is already there. It is clear and unambiguous and it does not depend on the outcome of any individual case.
And there is an urgency about this as well - as Judge McKechnie said seven years ago in his first judgment in the Foy case. If the Government waits for the outcome of the appeal before even starting the process of consultation prior to drafting legislation, it could be five to 10 years before there is any change, especially if Lydia Foy is forced to go to the European Court of Human Rights to get a final and entirely predictable decision in her favour.
In the meantime, transgendered people are experiencing real suffering, humiliation and prejudice and it would be unnecessary, unfair and inhumane to condemn another generation of trans people to what the European Court of Human Rights described in its judgment in the Goodwin case as "the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone, as yet not quite one gender or the other ..."
However, it is going to take lobbying and campaigning as well as legal action to persuade the Government to change the law - just as it did in the case of the decriminalisation of homosexuality, where it took another five years or so after the decision of the Court of Human Rights against Ireland in the Norris v. Ireland9 case before the Government finally summoned up the courage to actually change the law. - And when they did, the sky did not fall in!
For that reason the development of bodies like TENI and BeLong To and the support of USI is very important so that there will be organised voices lobbying Government on this issue and it will not just be left to a handful of vulnerable transgendered individuals who have enough on their plate as it is.
Finally, I would like to reinforce the point made by some other speakers already: that this is not just an issue for transgendered people. It is also an issue for lesbians and gay men because it challenges rigid gender stereotypes that stand in the way of recognition of same-sex marriages and equal treatment generally. And it is an issue for all other groups and individuals who are victims of inequality, discrimination and intolerance. For this is essentially about building a tolerant and inclusive society that values and respects difference and diversity rather than fearing them.
- Foy v. An t-Ard Chlaraitheoir & Others  IEHC 116, 9 July 2002
- Christine Goodwin v. UK 35 EHRR 447; "I" v. UK 36 EHRR 53
- Corbett v. Corbett  2AER 33
- Zappone & Another v The Revenue Commissioners & Others  IEHC 404, 14 December 2006
- K. B. (Social Policy)  EUECJ C-117/01, 7 January 2004
- Foy v. An t-Ard Chlaraitheoir & Others  IEHC 470, 19 October 2007
- Van Kuck v. Germany, Application No.35968/97  ECHR 285; Linda Grant v. UK, Application No. 32570/03  ECHR 548, 23 May 2006; L v. Lithuania, Application No. 27527/03  ECHR 725, 11 September 2007; M. M. v. Poland, Application No. 37850/03 , 4 January 2008
- Concluding Observations of the [UN] Human Rights Committee on the Report of Ireland under the International Covenant on Civil and Political Rights, paragraph 8, CCPR/C/IRL/CO/3
- Norris v. Ireland, Application No. 10581/83  ECHR 22, 26 October 1988