Ireland in breach of human rights law on transgender recognition

23 May 2013

Dec 2012 - ThomasHammarberg, Lydia Foy, Peter Ward
Thomas Hammarberg, Lydia Foy and FLAC Chair Peter Ward SC at 6th Dave Ellis Memorial Lecture 2012, 13 Dec 2012. Photo by Derek Speirs

Ireland today is in clear and flagrant breach of the European Convention on Human Rights (ECHR) because of its failure to legally recognise Dr Lydia Foy as a woman.  And the Government is showing grave disrespect for the Courts by failing for more than 5 years to respond to a ruling by the High Court that it must change the law in order to recognise transgender persons in their acquired or true gender, says legal rights group FLAC (Free Legal Advice Centres).

FLAC Senior Solicitor Michael Farrell was today speaking at a briefing on transgender rights ahead of a Private Members Bill from Sinn Fein on Transgender Recognition. It is now just over 20 years since Lydia Foy first wrote to the Registrar General seeking a new birth certificate showing her gender as female.  It is 16 years since she began legal proceedings to get that birth certificate and 5.5years since the High Court ruled in her favour.  Even at that stage, in October 2007, the judge was highly critical of the Government for not bringing in Gender Recognition legislation a lot earlier.

Ms Foy has still not received the birth certificate she was seeking and she is still not legally regarded as a woman.

Since the High Court ruling in 2007, there has been sharp criticism from UN and Council of Europe human rights officials over the failure to extend basic human rights protections to transgender persons.

The UN Human Rights Committee said in April 2008 that “Ireland should also recognise the rights of transgender persons to a change of gender by permitting the issuance of new birth certificates”.

A report on the visit to Ireland of the Council of Europe Human Rights Commissioner Thomas Hammarberg in November 2007, just after the judgment in the Foy case, said that “[t]he Commissioner welcomes the High Court decision bringing clarity as to the state’s responsibilities towards transgender persons.  He expects that legislation bringing the current birth registration law in line with domestic case law and the standards of the European Convention on Human Rights will be in place soon” .

Mr Hammarberg repeated his call for speedy introduction of gender recognition legislation several times over the next few years. His successor, Mr Nils Muiznieks, wrote to the Minister for Social Protection in November 2012 about the Foy case and gender recognition legislation.  He said: “I believe that five years of non-implementation of the High Court’s judgment finding Ireland in breach of the ECHR sends a very negative message to society at large”.  And he “strongly encourage[d]” the Minister “to proceed with the preparation of this long outstanding draft legislation”.

As a result of the failure to bring in legislation, Ireland is now completely isolated in the European Union on this issue since the new government elected in Malta last March is now bringing in gender recognition legislation there, which will leave Ireland as the only EU member state with no provision at all for recognising transgender persons in their acquired, or true, gender.

By January of this year, when the Government had not introduced even Heads of a Bill on this issue and there was no timetable for legislation, Dr Foy had no alternative but to issue new legal proceedings to try to vindicate her rights.  She has now issued those proceedings, asking the courts to either direct that gender recognition legislation be introduced forthwith, or to declare that the European Convention on Human Rights Act is ineffective and is itself incompatible with the Convention.

According to Michael Farrell, "It is important to say as well that this is not just an abstract legal issue.  There is and has been a real human cost in terms of embarrassment, humiliation, depression, distress, discrimination, and even abuse for Lydia Foy and for all the other transgender people out there.  Dr Foy has been courageous, determined and very patient in pursuing this case for 16 years and sacrificing her personal privacy in order to do so, but she should not have had to do this and she should not have to continue with this battle any longer."

Commented Mr Farrell, "There should be no further delay in bringing in gender recognition legislation.  If every other country in the European Union and almost all of the rest of Europe can do it, why is it such a problem here?"

FLAC welcomes this initiative by Sinn Fein to publish a Transgender Recognition Bill today, and the efforts of other TDs and Senators, including from the Government parties, in trying to ensure that comprehensive, tolerant and inclusive legislation is enacted as soon as possible.



Editors’ notes:

  1. FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal access to justice for all. As an NGO, FLAC relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work.
  2. We offer basic legal information through our telephone information line and free legal advice through a network of 80 volunteer evening advice centres. FLAC also campaigns on a range of issues including personal debt, fairness in social welfare law, public interest law and civil legal aid.
  3. Michael Farrell and Lydia Foy will take part in a briefing session for members of the Oireachtas  this afternoon from 1pm to 2pm in the Leinster House AV Room, together with TENI (Transgender Equality Network Ireland). Sinn Fein will publish a Private Members Bill on Gender Recognition later today.
  4. The quotes referenced above can be found at:
    - UN Human Rights Committee: Concluding Observations on the Report of Ireland under the International Covenant on Civil and Political Rights, CCPR/C/IRL/CO/3, 30 July 2008.
    - Council of Europe: Report by the Commissioner for Human Rights Mr Thomas Hammarberg on his visit to Ireland, 26-30 November 2007, CommDH (2008) 9, 30 April 2008, paragraph 81.
    - Council of Europe: Report by Thomas Hammarberg, Commissioner for Human Rights, following his visit to Ireland 1-2 June 2011; CommDH(2011)27; 15 September 2011, paragraph 16; Thomas Hammarberg speech on “Access to Justice for All – Regardless of their Means” to FLAC's annual Dave Ellis Lecture, Dublin, 13 December 2012.
    - Nils Muiznieks letter to Joan Burton TD, Minister for Social Protection, 16 November 2012, CommHR/SG/sf 118-2012
  5. You can download a briefing note on the Foy case (Feb 2013).
  6. Additional Note on Respect for the European Convention on Human Rights (ECHR):
    The European Convention on Human Rights (ECHR) Act was enacted in 2003 as a way of strengthening and deepening our commitment to the ECHR and bringing it home so that people living in this state could access their rights under the Convention without the time and expense involved in taking a case to the Court of Human Rights in Strasbourg.

    One of the key elements of the Act was that where domestic legislation undermines or takes away a right protected by the Convention, the courts could declare that the legislation in question is incompatible with the ECHR and the Government would be expected to take action to amend the law and bring it into line with the Convention.

    The High Court made the first ever declaration of incompatibility in Lydia Foy’s case.  The fact that successive governments have failed to act upon that declaration 5.5years later raises serious questions about the State’s commitment to the ECHR and to making it effective within the domestic system.
  7. Additional Note on Compulsory Divorce:
    One of the matters that is said to be holding up the enactment of Gender Recognition legislation is an apparent concern that according legal recognition to transgender persons who had married in their previously recorded gender would amount to accepting same-sex marriage.  It appears that the Department of Social Protection has obtained legal advice that in order to avoid this, married transgender persons should be required to divorce as a precondition for legal recognition.

    This is a harsh and legalistic view, lacking in sympathy and understanding for people involved in such situations and quite disproportionate in its likely effect.  Given the Constitutional requirements for divorce, it would require a loving couple who wish to remain together, to live apart for four years and to perjure themselves and mislead the courts by claiming that there is no reasonable prospect of reconciliation between them. Few relationships would be likely to survive such conditions.

    Such a requirement would appear to be unconstitutional and likely to cause considerable suffering and distress and in any event, it is quite unnecessary.  No-one could seriously suggest that recognising married transgender persons would increase the already considerable support for same-sex marriage.

    Two of our EU partner countries, Austria and Germany, had similar ‘compulsory divorce’ provisions in their Gender Recognition legislation.  Neither country allows same-sex marriage and the same argument about not encouraging it was made to support their ‘compulsory divorce’ provisions. However, the Constitutional Courts of both Austria and Germany struck down this requirement in 2006 and 2008 respectively.  The German Court “concluded that Section 8(1) (2) [of the Transsexual Law] limited unacceptably the ability of a married transsexual person to fully enjoy the constitutional right to realise his or her self-determined sexual identity” (International Commission of Jurists: Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva, 2012. 1 BvL 10/05, Federal Court of Germany 27 May 2008, pp185-6;  Austrian Constitutional court, Verfassungsgerichthof B947/05 (21.06.2006).

    Neither government sought to reinstate the compulsory divorce requirement after they were struck down  and a small number of transgender persons have remained married and live happily with their spouses without any adverse effects to German or Austrian society.

    If such a provision is included in Gender Recognition legislation here, it is certain to be challenged constitutionally and, if necessary, before the European Court of Human Rights. FLAC queries ,why bother to include a provision that could only affect a handful of people, that would lead to a needless constitutional wrangle and that would probably be unworkable anyway?