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A New Agender: Irish Gov drops Foy Appeal

Dr. Lydia Foy with her solicitor, Michael Farrell, of FLAC

Yesterday afternoon, word was excitedly spreading that the Irish Government had withdrawn its appeal against the 2007 High Court decision which held that the Irish State had breached the European Convention of Human Rights by refusing to allow for the applicant–Dr. Lydia Foy, a transgendered person–to obtain a birth certificate reflecting the sex appropriate to her gender.

At the time the Government decided to lodge the appeal, it was regarded as a particularly callous move since the European Court of Human Rights had already found the UK to have breached the European Convention of Human Rights in a challenge on the same grounds in Goodwin v UK [2002]. Since the legal status of transgendered people was no better in Ireland than it was in the UK at that time, Ireland knew that the European Court judgment meant that the Irish State would either have to catch up and remedy the gaps in protection for its transgendered people, or else face a similarly expensive and unnecessary case before the European Court of Human Rights. Furthermore, the UK then introduced the Gender Recognition Act in 2004–before the 2007 High Court decision–but the Irish State remained defiant and determined not to be influenced by the developments of our closest neighbours. In fact, the continuance of the appeal has been something of a anomaly since the publication of the Renewed Programme for Government back in October 2009. On page 19 of the renewed programme, the Government pledges to introduce gender recognition legislation during the life of the current government:

“We will introduce legal recognition of the acquired gender of transsexuals.”

Now that the Government has dropped its appeal, the State must fulfill the requirements laid down under section 5 of the European Convention of Human Rights Act 2003. Namely, the Taoiseach must lay a ‘Declaration of Incompatibility’ between Irish law and the European Convention of Human Rights before the Seanad and the Dáil within 21 working days of the Houses of the Oireachtas. This declaration specifically must state that the High Court found that Irish law as it currently stands is incompatible with the Convention. The Irish state must now also take action to afford recognition of a transgender person’s new identity or face the ignominy of being reprimanded bythe European Court of Human Rights.

Dr. Foy first initiated proceedings against the State in 1997 and, 13 years later, much work still needs to be done in order for the State to vindicate the rights of transgendered people. The first steps for such work have been taken and on May 6th, an interdepartmental gender recognition advisory group met for the first time and is expected to make proposals for legislative reform within six months to the Minister for Social Protection,  Éamon Ó Cuív (although, interestingly–and maybe tellingly–not to the Minister for Justice & Law Reform, Dermot Ahern). The terms of reference for the group outline the following heads of a future Bill:

  • a process for legal recognition of the acquired gender of persons suffering from gender identity disorder who have made transition from one gender to another.
  • to set up a gender recognition register for such persons. The certificates issues by this register should be indistinguishable from birth certificates and not refer to the fact a person has acquired a new gender.
  • an entitlement to transsexuals to marry in the legally recognised reassigned gender.

The working group and future legislators will hopefully carefully scrutinise and consider the experience of other nations and their transgendered citizens in developing its response to the vacuum in legal protection and provision for transgendered people in Ireland. In particular, the Government would be well-advised to avoid the temptation to carbon-copy the UK’s Gender Recognition Act 2004 into Irish law. An unsavoury aspects of the UK’s response include the forced divorce or annulment of marriages and the forced dissolution of civil partnerships. It is a mystery why this particularly harsh and intrusive feature was included rather than a simpler clause converting one institution to the other. An alarming and saddening aspect of most states in recognising gender reassignment is the requirement for genital surgery to have taken place. The latter criticism is the most contraversial as in many instances it amounts to mandatory sterilisation. In devising the approach it will take in addressing the human rights deficiencies identified in the Foy case, those charged with developing and implementing Irish provisions for gender recognition ought to heed the principled concluding remarks of Justice William McKechnie’s judgment in the Foy decision:

“Everyone as a member of society has the right to human dignity, and with individual personalities, has the right to develop his being as he sees fit; subject only to the most minimal of State interference being essential for the convergence of the common good. Together with human freedom, a person, subject to the acquired rights of others, should be free to shape his personality in the way best suited to his person and to his life.

All persons by virtue of their being are so entitled.”

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