http://www.flac.ie/download/pdf/260510_ml_farrell_paper

University College Cork Centre for Criminal Justice and Human rights Towards a Gender Recognition Framework for Ireland

The Lydia Foy Case – What it Means and What happens Next Michael Farrell, Senior Solicitor Free Legal Advice Centres (FLAC)

In this paper I want to look at some of the legal implications of the Lydia Foy case1 both for the transgender community and more widely. But first I would like to briefly outline the history of the case, where FLAC represented transgendered woman, Dr. Lydia Foy. The history of the case: Lydia Foy suffered a personal crisis in 1989 after some years of psychological turmoil. She could no longer cope with living in what she regarded as the wrong body and with having to carry out a male role when she believed her true gender was female. She underwent a course of medical treatment and gender realignment surgery which was completed in 1992, 18 years ago, and she has lived entirely as a female ever since.

In 1993 Lydia Foy applied for a birth certificate that would reflect her true/acquired female gender and for the alteration or correction of her entry in the Register of Births to show her sex or gender as female. There was a good deal of correspondence about this but her request was refused and she was told the Ard Chlaraitheoir or Registrar General had no power to amend the Register of Births in that way or to issue her with a new birth certificate.

Eventually, in April 1997, Ms Foy began legal proceedings challenging the Registrar General‟s decision as a breach of her constitutional rights. The case was heard in the High Court over 14 days in 2000 and judgment was given in July 2002. Her claim was rejected and she appealed.

Ironically two days later the European Court of Human Rights gave judgment in two cases taken against the UK by transgendered woman Christine Goodwin and another woman referred to only as “I”2. The European Court held that the UK, whose legislation was essentially the same as in

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Foy v. An t-Ard Chlaraitheoir & Others [2002] IEHC 116; Foy v. An t-Ard Chlaraitheoir & Others (No. 2) [2007] IEHC 470 2 Goodwin v. UK (2002) 35 EHRR 18; „I‟ v. UK Application No. 25680/94, 11July 2002

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this jurisdiction, had violated the rights of the two applicants by failing to recognise their acquired gender identity.

Lydia Foy‟s appeal came on for hearing in the Supreme Court in November 2005 and was sent back to the High Court because she now sought to rely on the European Convention on Human Rights Act, 2003 (the ECHR Act), which had not been passed at the time of the original hearing.

At the same time she made a new request to the Registrar General, this time relying on Section 3 of the ECHR Act, which requires all public bodies to carry out their duties in compliance with the European Convention. The request was turned down again on 23rd December 2005, an unwelcome Christmas present for her.

Ms Foy then issued new proceedings, stressing the duty to comply with the European Convention, and the two cases were heard together in the High Court in April 2007, almost ten years to the day since she began the original proceedings. The consolidated cases were heard over seven days by Mr Justice Liam McKechnie, who had heard the original case in 2000.

Finally, in October 2007, Judge McKechnie gave his second judgment in the case. He again rejected Ms Foy‟s claim that her constitutional rights had been infringed, but this time he granted a declaration that the State‟s failure to provide for legal recognition of her female gender was incompatible with the European Convention on Human Rights. This was the first declaration of incompatibility granted under the ECHR Act, 2003.

It took another four months, until February 2008, for the terms of the declaration to be finalised.

The legal proceedings had taken just under 11 years at that stage and the State promptly appealed the court‟s decision.

We are hopeful that these proceedings will be concluded satisfactorily from Ms Foy‟s point of view very shortly but it will have taken just over 13 years to get to that point and 20 years since she began the process of claiming/reclaiming her gender identity as a female.

This long drawn out saga has put Lydia Foy under enormous strain and, of course, it has happened alongside the difficult and traumatic process of gender transition and the suffering and heartbreak of the break-up of her family, the loss of her job and the isolation and prejudice she has had to suffer in the intervening years.

That is the human cost of trying to bring about significant legal change which will eventually benefit the whole transgendered community in Ireland. And, of course, Ms Foy‟s family, her children and her former spouse have suffered a lot as well.

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I would like to pay tribute to Lydia Foy for having the courage and determination to tread this difficult path and hopefully her suffering and struggle will make things a lot easier for those who come after her. But no-one should have to endure such a long drawn out and stressful legal struggle and it is an indictment of our legal system that it makes people go through such a painful process to vindicate their rights.

The effect of the Declaration of Incompatibility: Assuming the High Court‟s decision to grant a declaration of incompatibility stands, what exactly does it mean?

First of all, the court held that under current Irish law there was no basis for overturning the Chief Registrar‟s refusal to change the register of births or issue a new birth certificate in Lydia Foy‟s acquired female gender. The judgment said that the Registrar was correct to use the criteria relied on in a now largely discredited English case from 1970 called Corbett v. Corbett3 to determine someone‟s sex or gender for the purposes of registration.

Those criteria were chromosomes, gonads and internal and external genitalia. No allowance was made for psychological or „brain‟ sex, or for the effects of hormone treatment or gender realignment surgery. And the court declined to hold that a failure to legally recognise a transgendered person in her/his acquired gender amounted to a breach of that person‟s constitutional right to dignity and personal autonomy.

Instead Lydia Foy succeeded on the point that the failure to recognise her acquired gender was in breach of her right to privacy under Article 8 of the European Convention on Human Rights and that because the existing law did not allow for official recognition of her acquired gender or the issue of a new birth certificate in that gender, it was incompatible with the Convention. (Judge McKechnie also indicated that if Dr. Foy had been free to marry, he would have found that her inability to marry in her acquired gender was a breach of her rights under Article 12 of the Convention as well, but that issue did not arise because her divorce proceedings had not been completed at the time the judgment was given.)

Unfortunately, under the ECHR Act a finding that the law is incompatible with the European Convention does not lead to a change in the law. All things being equal, if Irish laws can be read so as to be consistent with the Convention, then Section 2 of the ECHR Act requires that to be done. But if they cannot be read to be compatible, or if the Irish law requires something to be done which is in breach of the Convention, then the ECHR has no direct effect and cannot be used to strike down the offending law or practice.

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Corbett v. Corbett [1970] 2All ER33

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In that situation, all that a court can do is to issue a declaration that the law is incompatible with the Convention, which is what was done in the Foy case. And if the declaration becomes final, as hopefully it will quite shortly in this case, the Taoiseach has to report this to each House of the Oireachtas within 21 sitting days of the finalisation of the declaration.

But the ECHR Act does not specify what should happen next. In theory at least, the Taoiseach and the Government could leave it at that and do nothing more about the situation. And because the Foy case is the first in which a declaration of incompatibility has been made, we have no precedents to guide us.

If we look at the UK jurisdiction, on whose Human Rights Act, 1998 our ECHR Act was modelled and from whom we took the idea of declarations of incompatibility, they have changed the law in almost all of the cases where a declaration has been made. They have dragged their feet in a few cases, like on giving the right to vote to prisoners, but so far they have not refused to respond to any of the 20 or so declarations of incompatibility that have been made and finalised in the 10 years since the 1998 Act came into effect in 2000.

Of course that may not continue to be the case now with the change in government in the UK, and given the Eurosceptic views of many in the Conservative party and their pre-election pledge to repeal the Human Rights Act. Hopefully, however, the more Europhile and human rightssupporting Liberal Democrats will put a brake on their new coalition partners at least on that issue.

The Government response: It remains to be seen how this Government will react to the first declaration of incompatibility when it is finalised, as we expect it will be shortly. The Revised Programme for Government published last October promised to bring in legislation to provide for legal recognition of transgendered person in their acquired gender. This is welcome, as is the establishment at the beginning of May 2010 of an inter-departmental working group “to advise the Minister for Social Protection [on] the legislation required to provide for legal recognition of the acquired gender of transsexuals�4.

But this has come very late in the day. As mentioned above, the European Court of Human Rights held in the Goodwin case in July 2002 that the UK law on this issue, which was identical to that still in force here, was in breach of the Convention. The UK government changed their law within two years of that decision, bringing in the Gender Recognition Act in 2004.

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Dail Eireann, Written Answers, Wednesday 5 May 2010, Eamon O Cuiv, Minister for Social and Family Affairs to Aengus O Snodaigh TD

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It has been evident since the Goodwin judgment that the law here would have to be changed as well but nothing was done in the intervening period. Indeed, the State fought the second Foy case quite vigorously in 2006-7 and then appealed the judgment granting a declaration of incompatibility. Meanwhile, most of the rest of Europe was busy changing its laws to conform with the Goodwin judgment. Judge McKechnie did not mince his words in his judgment in the second Foy case when he said: “In this regard, Ireland as of now is very much isolated within the member states of the Council of Europe”.

But that was 21/2 years ago and if the Government takes the scenic route on this issue and legislation is drafted and moved through the Oireachtas at the pace adopted for the Civil partnership Bill, it could be another 21/2 years before it is enacted, and Ireland would be even more isolated in Europe and indeed among democratic states throughout the world on this issue.

In the meantime transgendered people would continue to suffer the daily humiliations, fears and demoralisation that they have had to endure for far too long.

And even when new legislation is finally adopted, it may not meet the reasonable requirements of the transgender community. The UK Gender Recognition Act provides an obvious model to follow since it was brought in to remedy the failings of legislation so similar to that in this jurisdiction. But the wording of the brief for the interdepartmental working group may suggest that it is intended to be more restrictive than the UK law5.

The UK provisions do not insist on gender realignment surgery before recognising transgendered persons. Some people, because of the state of their health, cannot undergo such radical surgery and some do not wish to do so. The UK legislation accommodates people in this position. It would be a pity if the Irish legislation, when it is enacted, is less inclusive.

On the other hand, the UK legislation requires transgendered persons who are married to divorce before they can be recognised in their acquired gender. Some married couples do not want to divorce after one of them transitions and wish to stay in their relationship. This has already caused some problems in the UK and it is an area where the Irish legislation could improve on the UK provisions, learning from the experience gained after six years of operation of the Gender Recognition Act.

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The terms of reference for the interdepartmental working group refer to “the establishment of a process for legal recognition of the acquired gender of persons suffering from Gender Identity Disorder who have made the transition from one gender to another”, see Note 4 above. It is not clear whether this is intended to limit the new legislation to people who have had gender realignment surgery.

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Ensuring effective change: What can be done to speed up the process of adopting new legislation and to ensure that it is thorough, humane and comprehensive?

The declaration of incompatibility by itself will not deliver this. Lobbying and campaigning will be necessary to counter the foot dragging and inertia that sets in when any reform is proposed on gender issues or recognition of new forms of relationships. But this process should be made easier where it is clear that the legislation is needed to comply with the European Convention of Human Rights and with the new EU Charter of Fundamental Rights as well, and where the courts have clearly ruled that the existing situation is in breach of the Convention.

And it should be borne in mind that once the Irish courts have held that the existing law is incompatible with the European Convention, then the rights of transgendered persons are being continuously violated for so long as the law remains unchanged. The Court in Strasbourg would undoubtedly give the Government some leeway, or „margin of appreciation‟ while legislation is being prepared, but that margin may be a good deal narrower given the length of time the government had to deal with this issue and during which it did nothing about it.

Once the declaration of incompatibility is finalised, it would be open to other transgendered persons to apply for birth certificates in their acquired gender, pointing out that any failure to provide them with such certificates must amount to a breach of their Convention rights and that this breach will continue until the certificates are provided. In addition, they could claim that there is also a breach of their rights under Article 13 of the European Convention, guaranteeing the right to an effective remedy, as there is no effective remedy within the Irish system.

In the event of undue delay, if a number of cases like this were taken, it would be highly embarrassing and if they ever reached the Strasbourg Court, that body would be unlikely to be impressed at the Government‟s failure to deal with this issue when it has been staring them in the face for the last eight years.

And there is also the question of compensation. Where a declaration of incompatibility has been made, Section 5 of the ECHR Act provides that a person whose rights have been infringed as a result of the incompatible legislation can apply to the Government for ex gratia or discretionary compensation. The Government can then appoint someone to advise on an appropriate amount – although they don‟t have to accept the advice!

Once again there are no precedents for this and Lydia Foy will be the first person to test this provision. The scale of the compensation will be a measure of how seriously the Government takes incorporation of the European Convention. If the amounts awarded are derisory, it will

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indicate they do not take it seriously and it may be necessary to campaign to amend the ECHR Act to provide for realistic sanctions that would make the Government think twice about permitting violations of Convention rights.

The effectiveness of the ECHR Act: Finally, on the broader legal and human rights front, I have made the point earlier that the Foy case succeeded the second time around only because the ECHR Act had been passed in the intervening period. And that was even with a humane and sympathetic judge who had already expressed his sympathy with the plight of Lydia Foy and other transgendered people in the first case even though he could find no way of helping her under the existing Constitution and legislation.

I would suggest that this is a vindication of the ECHR Act, 2003. It has not been accepted by the Irish judiciary and legal establishment with anything like the energy and commitment shown by their British counterparts. Instead, many of its opponents have argued that there was no need to incorporate the European Convention because all the rights protected by it were also, and more effectively, protected by the Constitution.

However, the Constitution is a document of its time and that is particularly evident in relation to so-called „moral‟ issues, the position of women, and the disproportionate reverence shown for private property. And the judiciary, in interpreting the Constitution, are heavily influenced by the sometimes dead hand of jurisprudence from another era.

The European Convention also shows its age at times but its incorporation, even in the halfhearted way it which it was done, has begun to expose our courts to the rich and varied jurisprudence of other European countries and to encourage a fresh look at issues that had been regarded as settled for so long that nobody had thought to question them for years.

On the other hand, some commentators have argued that the weak and insipid form of incorporation adopted and the failings of the Convention itself have rendered the ECHR Act ineffective. Hopefully, this case will go some way to answering that criticism – at least if the Government does not fudge this issue and introduces genuine and progressive legislation to vindicate the rights of transgendered people.

The ECHR Act is a tool that can help us to spring-clean a lot of fusty old legislation that is badly in need of revision or repeal, and that can shine new light on some issues that our courts and judges have grown so used to that they never think to question them. It is up to those who are interested in legal reform and renewal to test the possibilities of the Act to the full and if it

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proves not to be fit for purpose and does not challenge time-dishonoured prejudices and privileges, to then campaign for something more robust and effective Conclusion: In conclusion, the Lydia Foy case, at considerable personal cost to Lydia Foy herself, has put the issue of transgender rights firmly on the agenda here. It is up to the Government to change the law in a satisfactory way. If they do not do so, the courts and the European Convention are there to be used again; but they cannot deliver change by themselves. Real change will require active involvement, lobbying and campaigning by the transgender community and those who support them as well.

Michael Farrell 14th May 2010

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