Diagnosis for Human Rights?

Human Rights in Ireland is pleased to welcome this guest post from Ben Power. Ben is the Board and Company Secretary for Transgender Equality Network Ireland. For more information on TENI’s work see www.teni.ie

Transgender Equality Network Ireland (TENI) is Ireland’s national trans organisation. We seek to improve conditions and advance the human rights and equality of trans people and their families. We are dedicated to ending transphobia, including stigma, discrimination and inequality. As part of this, one of the most important campaigns we are currently working on is the introduction of fully inclusive Gender Recognition Legislation. This provides a process enabling trans people to achieve full legal recognition of their preferred gender and allows for the acquisition of a new birth certificate that reflects this change. The introduction of legislation will make it easier for trans people in Ireland to lead safe, healthy and integrated lives.  Legislation has been proposed, however, much of it is restrictive and would infringe on the rights and privacy of trans people. In October 2012, a blog carnival to mark the 5th anniversary of Dr Foy’s victory  in the High Court was used to highlight the issues with the proposed legislation. Read it here.

So why does Gender Recognition Matter so much? What makes it so important?

There are many situations in an individual’s life where they are required to present a birth certificate in order to obtain their legal entitlements. For a transgender person this poses some complications. When the name and gender on your birth certificate is vastly different from the name you currently use and how you present your gender, questions will always be asked and this invariably leads to an awkward explanation forcing the trans person to “out” themselves, Continue reading

5th Anniversary of decision in Foy v An tArd Chlaraitheoir (No 2) [2007] IEHC 470

Human Rights in Ireland is pleased to host a blog carnival reflecting on the 5th anniversary of the decision in Foy (No 2). This blog carnival is organised by Dr Tanya Ní Mhuirthile. Tanya is a Senior Lecturer at Griffith College Dublin, is on the board of Transgender Equality Network Ireland and is a legal consultant to InterseXUK.

Five years ago today, Mr Justice McKechnie handed down his decision in Foy (No 2) in which he announced his intention to issue the first ever Declaration of Incompatibility under s5 of the European Convention on Human Rights Act 2003. The source of the incompatibility was the inability of Irish law to recognise the preferred gender identity of Dr Foy in contravention to the right to respect for one’s private life as contained in Article 8 ECHR.

Five years later, the incompatibility remains.

The Government has commissioned and published the report of the Gender Recognition Advisory Group (GRAG), and proposed legislation entitled the Gender Recognition Bill is on the ‘C’ list of the Legislative Programme for 2012 – meaning the heads of bill have yet to be approved by the Government. Nothing substantial has changed. As Mr Justice McKechnie noted in his judgment five years ago within a year of the decision in Goodwin v UK (2002) the House of Lords, issued a similar declaration of incompatibility under the Human Rights Act , 1998 in Bellinger v Bellinger [2003]. The following year the UK’s Gender Recognition Act 2004 had been passed. Thus Justice McKechnie noted: ‘Ireland, as of now, must be even further disconnected from Continue reading

Marriage Equality: What a Difference a Week Makes?

Edit @ 11 am: It has been pointed out to me that the Constitutional Convention ought to be completed its work before the Zappone case is completed, which puts a different spin on one of my points below and does raise serious questions about why this issue has not been prioritised in the workplan for the Convention.

Since the Tánaiste declared his support for marriage equality last week, there has been significant development in the discourse around marriage equality in Ireland from at least some quarters. Two further ministers–Alan Shatter and Leo Varadkar–declared their support in principle for marriage equality. The Minister for Education Ruairi Quinn also declared his support, albeit in the context of a claim that constitutional change would be required. I am like a broken record on this, as are others, but in fact we only think that constitutional change would be required; we do not know. Contrary to popular opinion the Constitution does not define marriage, but marriage has been defined in the context of constitutional cases as being between a man and a woman. However, whether it is exclusively between a man and a woman as a constitutional matter is not definitively known and will not be until we get the Supreme Court judgment in Zappone & Gilligan v Revenue Commissioners. It might, therefore, be wise for members of government to stop speaking as if the Constitution were (a) clear about the meaning of marriage, (b) static in its meaning (McGee case, anyone?), and (c) uncontested. Yesterday the Taoiseach got in on the Act, as did the Fianna Fáil leader Michéal Martin. Continue reading

Clinton on LGBT Human Rights

US Secretary of State Hilary Clinton today delivered a speech in Geneva to mark Human Rights day. This speech focused on LGBT human rights and is quoted in full below. It is certainly worth taking the time to read or watch, the video can be watched here.


Good evening, and let me express my deep honor and pleasure at being here. I want to thank Director General Tokayev and Ms. Wyden along with other ministers, ambassadors, excellencies, and UN partners. This weekend, we will celebrate Human Rights Day, the anniversary of one of the great accomplishments of the last century.

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Restriction on Gays in the US Military Ruled Unconstitutional

Federal Judge Virginia A. Phillips yesterday ruled that the US Military law commonly referred to as “the don’t ask don’t tell policy” was unconstitutional.  Her judgment is available here.  The law was introduced under the Clinton administration in 1993 as a compromise that allowed gay and lesbians to undertake military service.  The policy permits gays to undertake military service by restricting the military from enquiring about sexual orientation, provided that enlisted personnel do not disclose their sexual orientation and engage in homosexual acts.  Nevertheless the US military has discharged thousands of gay military personnel since the introduction of the 1993 law.  In her judgment Phillips held that the policy “[f]ar from furthering the military’s readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest.”

The plaintiffs in the case (a gay rights group called the Log Cabin Republicans) argued that the policy was in violation of the guarantee of substantive due process under the Fifth Amendment of the US constitution.  They also alleged that the policy violated free-speech rights contained in the First Amendment.  While these rights have a more restrictive scope of application Continue reading

Guest Post: Cobb on LGBT Activism and the State: CPS Hate Crime Scrutiny Panels

We are delighted to welcome this guest post from  Neil Cobb, a Lecturer in Law at Durham University.  Neil’s principal research interests are housing law and policy, criminal law and criminology, discrimination law and law and sexuality. Neil is currently independent legal advisor to the north-east CPS Homophobic/ Transphobic Hate Crime Scrutiny Panel.

I have always written with the intention that my work – on the relationship between law and sexuality – should further explicit political aims. For me, academia is activism; theory informs praxis. My primary aim has been to help develop and sustain a more radical sexual politics of law, which challenges the usual adherence to heteronorms implied by the demand for lesbian and gay equality, in favour of wider transformation of societal understandings of sex. Academia suits me because it gives me the critical distance to think strategically about how best to achieve this goal. But I am also acutely aware that this distance can mean a level of disengagement from the cut and thrust of activism ‘on the ground’. Continue reading

Guest Post: Barker on Raining on the Civil Partnership Parade

We are delighted to welcome this guest post from Dr. Nicola Barker; a lecturer in law and director of the LLM programme in Gender, Sexuality and Human Rights at Keele University, UK.  She is author of Not the Marrying Kind: Feminist Critiques of Marriage and the Legal Recognition of Same-Sex Relationships (forthcoming, 2011).

I was recently at an academic conference in Vermont, which was a celebration of the 10th anniversary of the Vermont Civil Union and 1st anniversary of same-sex marriage in the state.  Most of the conference participants were happy to celebrate marriage as an achievement of equality and access to numerous important legal rights (and responsibilities) of marriage.  I can understand those sentiments, particularly in a country where access to health care may be dependent on the person one chooses as a spouse having employment benefits and spousal coverage, but I cannot join in the celebration.  Likewise, I can understand the celebrations in Ireland following the introduction of civil partnerships but I do not share the jubilation.

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Gender Reassignment Surgery, Limited Resources, and 'Positive Results' for Society

Yesterday’s Sunday Tribune reported that Labour councillor, Colm Keaveney (left), is of the view that the HSE ought to desist from funding gender-reassignment surgery abroad (provided under the Treatment Abroad scheme) when there are children waiting for and being deniefd medical treatment here in Ireland. His view seems to be based on a multi-part premise that can be discerned from this quote from the article:

“When allocating scarce resources, we must establish what actually delivers best value for society and the individual,” he said.

“Depriving children of necessary aids and appliances at this point in their life will have a devastating social outcome in later years when compared to some very expensive procedures being paid for by the taxpayer.

“While I understand this may be offensive to transgender people, I would ask them to look at this through the eyes of a parent and try to empathise with how they feel about their child’s wellbeing.

“Given the dire straits the country finds itself in, it is vital that we focus government spending on areas that will deliver positive results for our society in the long run.”

So what are the elements of this premise upon which he rests his view? It seems to me that they are: (a) gender-reassignment surgery does not, relatively speaking, deliver ‘value’ or ‘positive results’ for society and the individual; (b) the healthcare needs of children should trump the healthcare needs of trans people where there are limited resources. Both of these elements are, to my mind, very worrying from a human rights perspective. Continue reading

LGBT Pride: 2009-2010 in Review

This weekend the streets of Dublin will be filled with the 2010 L(esbian) G(ay) B(isexual) T(ransgender) Q(ueer) Pride parade—the culmination of weeks of cultural and other celebrations for Dublin Pride 2010. Indeed, all summer long there will be Pride festivals and parades in towns and cities all over the country: Cork, Waterford, Limerick and Sligo being the largest. In this post I want to reflect on the year in LGBT rights in Ireland and a little on Pride itself.

2010 has not been a terrible year from an LGBT rights perspective. There have been three very significant developments, all of which we have considered in some depth here on HRinI. The first is the continued passage of the Civil Partnership Bill 2009 through the Oireachtas. This Bill will create a new legal status of civil partnership, available only to same-sex couples, and carrying with it many (although not all) of the same rights and obligations as marriage. It will also allow for some default obligations and protections in cases of both opposite-sex and same-sex cohabitation where there is neither a marriage nor a civil partnership. Although the Civil Partnership Bill 2009 will not, when introduced, answer the calls for substantive equality between families based on an opposite-sex couple and families based on a same-sex couple, it will go some way towards answering the immediate and real needs of same-sex couples and in that sense is quite significant. Continue reading

Guest Contribution: Farrell on Foy Case

Human Rights in Ireland is delighted to welcome this guest post from Michael Farrell, Senior Solicitor at FLAC.

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. Continue reading