First step towards transgender recognition law welcome but government must not blunder on forced divorce

18 July 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

News that the Irish government has at last produced draft legislation to finally recognise transgender people in their true gender has been welcomed by legal rights group FLAC. However the organisation warned against delay in introducing this new law and sounded an additional note of caution on elements of the government’s proposals that could leave the state in breach of international law.

FLAC Senior Solicitor Michael Farrell said that “The Government must give high priority to this Bill as otherwise it will go to the end of a long queue of Bills waiting to be considered.  It is urgently required to implement the decision of the High Court made nearly six years ago in the Lydia Foy case and to meet the State’s obligations under the ECHR.”

The High Court ruled in October 2007 that the State should issue FLAC’s client, Dr Lydia Foy, with a new birth certificate recognising her female gender. It is 20 years since Dr Foy first applied for a new birth certificate and 16 years since she began legal proceedings, supported by FLAC (Free Legal Advice Centres), to secure recognition of her acquired gender.

Commenting on the Bill’s less inclusive arrangements, Mr Farrell said:

While the Heads of Bill are a considerable improvement on the recommendations of the Government’s advisory committee two years ago, FLAC remains concerned about a number of issues, such as the requirement on married transgender persons to divorce in order to get recognition in their preferred gender; the lack of provision for recognising young persons under 18, and the apparent requirement that only doctors can give supporting evidence of a transgender person’s deeply felt desire and commitment to live permanently in their preferred gender. 

FLAC pointed to Germany and Austria, both of which have struck down forced divorce elements of their transgender recognition laws as breaching fundamental human rights laws. If forced divorce is included in Irish Gender Recognition legislation, FLAC would suggest that it is certain to be challenged constitutionally and on international law principles.

“Other European countries have done away with ‘forced divorce’ provisions’; we should not be introducing this discriminatory measure just when everyone else is getting rid of it and we should be seeking to bring in a generous and inclusive system to make up for the indignity and suffering forced on transgender persons in the past,” stressed Mr Farrell.

Since the 2007 High Court ruling, there has been sharp criticism from UN and Council of Europe human rights officials over the Irish state’s failure to extend basic human rights protections to transgender persons. Ireland is now the only European Union not to legislate on legal transgender recognition.  Further, in February of this year, with no sign of a transgender recognition law, Dr Foy had no alternative but to issue new legal proceedings to try to vindicate her rights. 

Two other transgender recognition Bills have been put forward this year, one from Sinn Fein and one from Independent Senators led by Senator Katherine Zappone, in the absence of a government bill. FLAC supported these initiatives to seek the speedy introduction of comprehensive, tolerant and inclusive legislation. It would in FLAC’s view be an enormous pity and a very regrettable, continued waste of time for the state to now propose a transgender recognition law that lacks compassion and excludes any Trans person.



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. You can download a comprehensive briefing note on the Foy case (Feb 2013). There is also a press release on the issuing of new proceedings in the Foy case
  4. You can access the proposed government Bill as a PDF. Information on the alternative Bills are at
    - Bill on Legal Recognition of Gender in Ireland (Katherine Zappone)
    - Gender Recognition Bill (Sinn Fein): 
  1. FLAC: Additional Note on Compulsory Divorce:
    The enactment of Gender Recognition legislation has been allegedly help up by concerns that giving 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?