The Lydia Foy case
Dr Lydia Foy is a transgender woman. She was born in Athlone and was registered at birth as a boy. Growing up she was confused about her gender identity but tried to live as a male. She went through university and qualified as a dentist and then got married and had two children. Gradually, however, she became more and more unhappy in her male role. She was diagnosed with Gender Identity Disorder in 1990.
It was a very difficult time for her. Her marriage broke up and she lost her job. She began the process of gender reassignment and had surgery in England in 1992. Since then she has lived entirely as a woman.
Dr Foy applied for a new birth certificate in her female gender in March 1993 but was refused by the Registrar General’s office. She changed her name by deed poll and was able to obtain a driving licence and a passport in her female name and giving her gender as female. She wanted a birth certificate, however, because birth certificates are constantly required as proof of identity and because it would be an official recognition of her as a woman.
Correspondence with the Registrar General’s office went on without success until April 1997, when she started High Court proceedings to compel the Registrar to issue her with a new birth certificate. She was represented by Free Legal Advice Centres (FLAC).
The case came to court in October 2000 and was heard over 14 days in the High Court by Mr Justice Liam McKechnie. Dr Foy argued that she was mentally and physically a female and should be recognised as such. A number of medical specialists gave evidence on her behalf. Judgment was reserved and was eventually delivered in July 2002.
Judge McKechnie rejected Dr Foy’s claim. Like the UK court in Corbett v. Corbett, he held that physical and biological indicators should be used to determine sex/gender. The European Court of Human Rights had not yet delivered its Goodwin decision and he found nothing in Irish or UK law that led him to overturn the existing jurisprudence. He was sympathetic to Dr Foy’s position, however. He said that the issues raised in the case “touch the lives in a most personal and profound way of many individuals and are also of deep concern to any caring society”.
He called on the Government and the Oireachtas to deal with the position of transgender persons, concluding his judgment by saying: “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”.
In an unfortunate piece of timing the Strasbourg Court gave its definitive judgment in the Goodwin case just two days later on 11 July 2002.
Appeal and new hearing
Lydia Foy appealed to the Supreme Court. Before the appeal came on for hearing, however, the European Convention on Human Rights Act 2003 (the ECHR Act) was passed, bringing the European Convention into Irish law. It was the equivalent of the UK’s Human Rights Act and was modelled on that Act.
Section 3 of the ECHR Act provided that all organs of the State had to carry out their functions compatibly with the European Convention unless prevented from doing so by Irish law. If Irish legislation did prevent a public body from complying with the Convention, the High Court could declare that the legislation in question was incompatible with the Convention, just as the House of Lords had done in the Bellinger case in 2003. The Taoiseach would then have to report the decision to the Oireachtas and the Government would have to decide what to do about it.
If they did nothing, it would be open to the applicant to complain to the European Court in Strasbourg, relying on the declaration of incompatibility by the Irish court.
Lydia Foy made a new application to the Registrar General in November 2005, pointing out his obligation under the ECHR Act to comply with the requirements of the European Convention. He refused once again and she issued new proceedings in the High Court, this time seeking a declaration under the ECHR Act that the Irish legislation on registration and the issue of birth certificates was incompatible with the European Convention.
The case came before the High Court in April 2007, exactly 10 years after Dr Foy began her legal challenge in 1997 and nearly five years after Judge McKechnie’s plea to the Irish authorities “to urgently review this matter”. Nothing had been done in the meantime.
The case was again heard by Judge McKechnie because he was already familiar with the facts and the medical evidence given seven years earlier. Much of the six-day hearing was taken up with outlining the new position of the European Court of Human Rights following the Goodwin judgment and the dramatic shift towards legally recognising transgender persons across Europe and in the other common law countries, most notably the UK.
Mr Justice McKechnie gave his judgment on 19 October 2007. He expressed great frustration at the failure of the Irish Government to take any action following his urgent plea in 2002. He said that on this issue, “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”.
He concluded that “by reason of the absence of any provision which would enable the acquired identity of Dr Foy to be legally recognised in this jurisdiction, the respondent State [Ireland] is in breach of its positive obligations under Article 8 of the Convention”. And he added for good measure that he would have found a breach of the right to marry under Article 12 of the Convention as well if that had been open to him.
As there was no remedy available under Irish law, he declared, pursuant to Section 5 (1) of the ECHR Act, 2003, that the relevant sections of the Civil Registration Act, 2004 were incompatible with the European Convention. This was the first declaration of incompatibility to be made under the ECHR Act.
The State promptly appealed to the Supreme Court, which had the effect of putting a stay on the operation of the declaration of incompatibility.
In the 21/2 to 3 years since Judge McKechnie’s second judgment, Ireland has come in for criticism from international human rights sources over its failure to afford legal recognition to transgender persons.
In April 2008, in his report on a fact-finding visit to Ireland, Council of Europe Commissioner for Human Rights Thomas Hammarberg specifically commented on Judge McKechnie’s finding in the Foy case that Ireland was in breach of its obligations under Article 8 of the European Convention. He recommended that the Government “change the law on birth registration in such a way that transgender persons can obtain a birth certificate reflecting their actual gender”.
In July 2008, the United Nations Human Rights Committee, which monitors states’ compliance with the International Covenant on Civil and Political Rights, issued its Concluding Observations on a report by Ireland about its human rights record. The UN Committee stated bluntly that “The State party should also recognise the right of transgender persons to a change of gender by permitting the issuance of new birth certificates”.
In an issue of his regular Viewpoint in January 2009, Human Rights Commissioner Hammarberg again referred specifically to the Foy case before going on to make a general call for legal recognition of transgender persons. He said: “There is no excuse for not immediately granting this community their full and unconditional human rights”.
And the Irish Human Rights Commission in September 2008 also urged the Government to amend existing legislation to protect the rights of transgender persons under Articles 8 and 12 of the European Convention.
In the meantime, earlier in 2008, a new Passports Act had been passed which provided for the issue to transgendered persons of passports in their acquired gender, giving rise to a situation where a person could have a passport showing one gender and a birth certificate showing the opposite gender.
Eventually, in its Renewed Programme for Government issued in October 2009 the Government promised to “introduce legal recognition of the acquired gender of transsexuals”.
And now, of course, the Government has finally dropped its appeal against the decision of Judge McKechnie that Ireland is in breach of Article 8 of the European Convention on Human Rights and that our legislation on the registration of births is incompatible with the Convention because of its failure to provide for the issuing of new birth certificates to transgender persons. Lydia Foy has also withdrawn her appeal against the decision in the original case as it is no longer necessary.
Dr Lydia Foy has at last been vindicated but it has taken 13 years since she commenced her High Court proceedings in 1997 and 17 years since she first applied for a new birth certificate in 1993. It is an indictment of our legal system that it can take so long for a citizen to obtain her rights.
What happens next? The declaration of incompatibility with the European Convention was the first to be granted in this State. It is now the first declaration to have been finalised. That is a ground-breaking legal development and it is all the more significant because it is about a positive obligation on the State to establish rights that were not recognised up to now, rather than to stop an infringement of a right that was already there.
Because this is the first declaration to have been finalised there is no precedent for what happens next. The declaration does not strike down the existing law or invalidate decisions already made. But the ECHR Act requires that the Taoiseach should notify the Houses of the Oireachtas within the next 21 sitting days about the making of the declaration by the High Court.
After that it is not clear what has to happen next but doing nothing is not an option. The Council of Europe and the UN Human Rights Committee have already called for a change in the law and there is a clear and unchallenged decision by the High Court that the State has violated Dr Foy’s rights under the European Convention. Yet she cannot obtain a new birth certificate until the law is changed. Every day that the law continues unchanged, the violation of Dr Foy’s rights continues and it would be open to her at any time to lodge a complaint with the European Court of Human Rights, relying on the decision of the High Court.
The UK has recognised its obligation to act upon declarations of incompatibility made under its Human Rights Act – the model for our ECHR Act. So far out of more than 20 declarations of incompatibility that have been finalised, the British government has acted upon almost all of them and has committed itself to act upon the others.
Hopefully, the Irish Government will follow that example. The Government has already set up 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”. The group began meeting on 6 May. This is a welcome development and hopefully it will not take the group too long to report as they already have a readymade template for legislation in the UK’s Gender Recognition Act, which was in turn changing and amending legislation very similar to the legislation here.
There are a few flaws in the UK legislation that have become apparent over the last six years since it was enacted and we now have the opportunity to improve it, but there should be no delay. Successive governments failed to act after the clear warning by Judge McKechnie in his judgment in 2002 and after the European Court of Human Rights had made clear that Member states’ obligations under the European Convention required action to protect the rights of transgender persons.
This small and marginalised community has suffered for far too long. To repeat what Commissioner Hammarberg said in January 2009: “There is no excuse for not immediately granting this community their full and unconditional human rights”.
This has been a long, difficult and painful struggle for Dr Lydia Foy but she has achieved a great step forward for the transgender community. Her legal case helped to educate judges, lawyers and the general public about the hurt and anguish of all too many transgender people and it is, hopefully, about to change the law for her sisters and brothers in that community. It is a great tribute to Lydia Foy’s courage, endurance and perseverance over the last 17 years.
This has also been a landmark case for the European Convention on Human Rights Act, 2003. It has demonstrated, in the teeth of considerable scepticism, that the incorporation of the European Convention into Irish law can add value to the human rights protections that are already there and can fill in gaps in our human rights provisions.
How the Government responds to the declaration of incompatibility in this case will be a test of the seriousness of its commitment to the European Convention on Human Rights and of how effective a mechanism for the protection of human rights the ECHR Act will be.