Government drops appeal in historic transgender case
21 June 2010
Taoiseach to tell Dail Ireland is in breach of rights treaty
The Government has withdrawn its appeal to the Supreme Court in the case of transgender woman Lydia Foy. It has accepted a High Court ruling that Irish law on transgender rights is in breach of the European Convention on Human Rights (ECHR), said the Free Legal Advice Centres (FLAC), which represented Dr Foy.
The Taoiseach must now report the Court's decision to the Dail within 21 sitting days and the Government will have to introduce legislation to recognise transgender persons in their new gender and allow them to get new birth certificates or face condemnation by the European Court of Human Rights.
Former dentist Dr Lydia Foy, who was registered at birth as male, has succeeded in her 13-year battle for legal recognition as a woman and for a birth certificate showing her sex as female.
FLAC, which has represented Dr. Foy throughout the case, paid tribute to her courage and tenacity in taking these proceedings. "This has been a long and painful road for her to travel", said FLAC Senior Solicitor Michael Farrell, "but her action will help many others who have to make this difficult journey too".
He voiced FLAC's welcome for the Government's decision to drop its appeal, saying: "This is a major development for transgender people who have suffered from isolation, exclusion and prejudice for far too long". The legal human rights body called on the Government to act quickly to introduce legislation to recognise the new gender identity of transgender people and allow them to obtain birth certificates in their acquired gender.
Every day that transgender people continue to be denied legal recognition is now a breach of the ECHR, according to FLAC. The recent appointment of an inter-departmental working group to look at changing the law was a step in the right direction, said the legal advice body, but it was very late in the day as the Government had known the law would have to be changed since a key decision of the European Court of Human Rights in a UK case in 2002.
The UK had introduced a Gender Recognition Act in 2004. It protects the position of family members of transgender persons, who were also left in a legal limbo by the current absence of any transgender legislation.
FLAC also welcomed the fact that the Government had decided to act upon the first declaration made by the courts that a provision of Irish law was in breach of the ECHR. This showed that the European Convention on Human Rights Act 2003 (the ECHR Act) could provide a remedy for breaches of human rights that were not adequately protected under Irish law, said FLAC.
FLAC paid tribute to the ground-breaking work of its legal team in this case over the years since the case began in 1997. They had successfully challenged ingrained stereotypes about gender identity and had pioneered the use of the ECHR Act in the Irish courts, leading to the first confirmed declaration of incompatibility under that Act.
Legal background to the case of Foy vs An t-Ard Chlaraitheoir:
Lydia Foy began High Court proceedings to secure recognition of her acquired gender as a woman in 1997. In July 2002 the High Court ruled against her, saying that neither the Constitution nor Irish legislation allowed for recognition of gender change. Two days later, the European Court of Human Rights held that the UK had breached the rights of two transgender women when it refused to recognise their new gender identity.
Dr Foy had appealed to the Supreme Court but when the new ECHR Act 2003 came into force, giving the ECHR more standing in Irish law, she made another application for a new birth certificate, relying on the European Convention. When it was refused, she went back to the High Court. The case did not come to court again until April 2007.
In the meantime, almost all other European countries had granted legal recognition to transgender persons. Giving judgment in the second Foy case in October 2007, Mr Justice McKechnie said: "In this regard, Ireland as of now is very much isolated within the member states of the Council of Europe". He ruled that the lack of provision for recognising Dr Foy's new gender identity was a breach of her rights under Article 8 of the ECHR, which protects private and family life.
He also made a declaration that the Irish law on this issue was incompatible with the ECHR. This was the first such declaration made under the ECHR Act, 2003.
The State appealed Judge McKechnie's decision, despite the general consensus on transgender recognition elsewhere in Europe. It is that appeal that has now been withdrawn, thereby confirming and finalising the declaration of incompatibly, which has become the first declaration to be confirmed. The Taoiseach must now report this to the Oireachtas, and that will be the first time that this mechanism will have been used.
Dr Foy has also withdrawn her appeal against the first High Court decision, now that the Government has accepted the declaration of incompatibility and committed itself to changing the law and giving legal recognition to transgendered people.
You can read a more detailed briefing note about the case - and transgender issues and the law generally - online.