By Allison Bray
The Government is legally obliged to revise the law on the rights of those who have changed sexes following a landmark decision in the High Court yesterday.
The ruling on the identity papers of transsexuals found the State breached the European Convention on Human Rights.
In a decision that made legal history yesterday, Mr Justice Liam McKechnie ruled that the Taoiseach must go before the DÃ¡il within 21 days of the publication of his ruling to outline how the Government will bring Ireland in line with the Convention.
The ruling centres on the high-profile case of dentist Lydia Foy (59), who changed her sex from man to woman through gender-reassignment surgery 15 years ago.
Although she changed her sex physically, she has been engaged in a decade-long legal battle with the State to alter her name and sex on her birth certificate to reflect her new identity.
The judge ruled that the State’s failure to provide for “meaningful recognition” of her new identity violated her human rights and she was entitled to court costs and compensation for her lengthy court battle.
He also found that the State was remiss in not recognising the rights of transgendered people five years ago when most other EU countries were doing so.
Justice McKechnie, who is expected to let several weeks lapse before issuing his court order to allow the Government time to consider it, said the State “for whatever reason” had decided not to act and was very much isolated within the Council of Europe states in that regard.
Gender Dysphoria, a syndrome in which a person’s sexual identity is at odds with their physical attributes, is a recognised psychiatric condition and “a living tragedy” for many people who often had a burning desire to have their new sexuality legally recognised, the judge said.
That desire was the reason why so many were driven to embark on a fight for legal identity which was humiliating and often unsuccessful.
Everyone, as a member of society, has a right to human dignity, he stressed.
While the judge’s decision does not strike down any laws here, including laws dealing with the system of birth registration, it puts an onus on the State to address the situation of transgendered persons.
The judge indicated that one means of bringing the State into compliance with Article 8 would be to introduce laws similar to the Gender Recognition Act in the UK under which a person may secure identity documents and new birth certificates reflecting their new sexual identity without their original birth or marriage certificates being affected.
Dr Foy had also claimed her right to marry under Article 12 of the ECHR was being violated by the absence of legislation here. However, because Dr Foy is not yet divorced, the judge said a legal impediment to her remarrying existed which was not related to gender issues.
However, the judge made clear that, were Dr Foy divorced, it would “inescapably” follow there would be very compelling reasons under Article 12 of the convention to facilitate the remarriage of post-operative transgendered persons.
He was delivering his 70-page judgment on the 10-year legal battle by Dr Foy of Athy, Co Kildare, for a birth certificate describing her as female and for a number of declarations under the ECHR.
Born Donal Mark Foy, she married and fathered two children before undergoing gender realignment surgery almost 15 years ago. The marriage ended in the 1990s and Dr Foy changed her name by deed poll in 1993.
Dr Foy’s estranged wife and children had opposed the proceedings, expressing concern about implications for the legality of the marriage and succession rights.