The first case seeking to establish the validity of a marriage involving a man who has undergone a sex change is likely to come before the courts as a result of an immigration procedure.
A foreign national who is seeking an Irish residence permit on the grounds that he is married to an EU citizen will institute proceedings against the Department of Justice if it is not granted within seven days. According to his solicitor, Mr Derek Stewart, an official of the Department of Justice questioned the validity of the marriage because Mr Nicholas Krivenko was once a woman.
Mr Krivenko is a Russian citizen, and lived as a woman with his German female partner in Austria before moving to Ireland, where they set up a food-exporting business. On that basis he sought a residence permit. A temporary permit was issued but not renewed.
"For four years my passport was held by the Department. I could not work, conduct my business or simply go on a short break to the UK or any other country," he said. This is likely to form the basis of separate legal proceedings against the Department, he told The Irish Times.
In the meantime he decided to undergo a gender realignment (sex change) procedure. The Russian authorities changed his birth certificate. On September 3rd, 1999, he and his partner married and in February he applied for a residence permit on the basis of being married to an EU citizen.
He was told to attend his local Garda station to receive his permit and the stamp, but his solicitor was told by a Department of Justice official that there was a "serious problem" with the application.
Mr Stewart has written to the Department seeking a temporary permit to allow the matter to be resolved by the High Court. Mr Stewart told The Irish Times if the residence permit is not forthcoming, he intends to take judicial review proceedings. His client also intends to take civil proceedings for compensation for losses he has incurred due to the delays.
The Department of Justice was unwilling to comment on the matter, as it does not comment on individual cases. According to a senior counsel, this case "raises a multitude of issues, very important legal issues". He said such issues had been litigated in other courts "with mixed results. The law is in a fluid state, but I would say the couple has a tenable case."