TENI

Dr Lydia Foy's Case

This landmark case concerns the obtaining of a new birth certificate that reflects and grants formal legal recognition to an individual that affirms their gender identity, dignity and self-respect.

Dr. Lydia Foy has lived as a woman since 1991. In March 1993, Dr. Foy applied to the office of the Registrar General for a new birth certificate to reflect her female gender but was refused. Dr. Foy sought to have her birth certificate re-issued as this document is required as proof of identity and, importantly, it would be official recognition of her life as a woman.

In April 1997, after a number of years’ unsuccessful correspondence with the Registrar General’s office, Dr. Foy initiated High Court proceedings to compel the Registrar to issue her with a new birth certificate. In October 2000, the case was heard in the High Court by Mr Justice Liam McKechnie; the judgment was delivered in July 2002. Dr. Foy’s claim was rejected due to the lack of Irish or UK legislation that would facilitate the overturning of the existing jurisprudence. Justice McKechnie called on the Government and Oireachtas to deal with the position of transgender people as a matter of urgency: “Could I adopt what has repeatedly been said by the European Court of Human Rights and urge the appropriate authorities to urgently review this matter.”

Just two days later, on 11 July 2002, the legal landscape changed on foot of a successful judgment in the Goodwin case (Christine Goodwin v. UK) before the European Court of Human Rights. The Court concluded: “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”.

Dr. Foy appealed to the Supreme Court but before the appeal was heard, the European Convention on Human Rights Act 2003 (the ECHR Act) was enacted, bringing the European Convention into Irish domestic law. Lydia Foy made a new application to the Registrar General in November 2005, pointing out the obligation under the ECHR Act to comply with the requirements of the European Convention. Refused once again, she began new proceedings in the High Court, seeking a declaration under the ECHR Act that Irish legislation was incompatible with the European Convention regarding the registration and issue of birth certificates.

Dr. Foy returned to the High Court in April 2007, exactly 10 years after her legal challenge began. The case was heard by Justice McKechnie whose judgment, on 19 October 2007, expressed great frustration at the failure of the Irish Government to take any action following his urgent plea in 2002, stating “Ireland as of now is very much isolated within the Member States of the Council of Europe ... [and] must be even further disconnected from mainstream thinking”.

Justice McKechnie found the State to be in breach of its positive obligations under Article 8 of the European Convention on Human Rights in failing to recognise Dr. Foy in her female gender and provide her with a new birth certificate. This was the first declaration of incompatibility to be made under the ECHR Act; the State then appealed this ruling to the Supreme Court.

In May 2010, the Government set up the Gender Recognition Advisory Group (GRAG), an inter-departmental working group “to advise the Minister for Social Protection on the legislation required to provide for legal recognition by the State of the acquired gender of transsexuals”. In June 2010, the Government withdrew its appeal to the Supreme Court.

In July 2011, the Advisory Group published its recommendations for proposed gender recognition legislation to the Minister for Social Protection. However, as of 3 April 2012, the Heads of a Bill have still not been forthcoming. Dr. Foy commenced her High Court proceedings in 1997 and it is now 19 years since she first applied for a new birth certificate in 1993. How can it take so long for a citizen to access rights through the Irish legal system?

Since 2008, Ireland has received much criticism from international human rights bodies over its failure to afford legal recognition: The United Nations Human Rights Committee; the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, referring specifically to the Foy case stated: “There is no excuse for not immediately granting this community their full and unconditional human rights” . The Irish Human Rights Commission urged the Government to amend legislation to protect the rights of transgender persons under Articles 8 and 12 of the European Convention.

Successive governments have failed to act since the first McKechnie judgment in 2002 and even after the Goodwin ruling in the European Court of Human Rights that Member states’ obligations under the European Convention required action to protect the rights of transgender people. Although there is a clear and unchallenged decision by the High Court that the State has violated Dr. Foy’s rights under the European Convention, she still cannot obtain a new birth certificate until new legislation is enacted. Every day that the law remains unchanged, the violation of Dr. Foy’s human rights continues.

We must acknowledge Dr. Lydia Foy’s determination and perseverance over the past two decades in her fight to be respected and recognised as female by the Irish State and to have a birth certificate that reflects her gender identity.

Thanks to Cat McIlroy for compiling this information. 

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