In light of Ireland's ratification of the European Convention on Human Rights, a legal challenge by a dentist who underwent a sex change operation to the refusal to describe her as female on her birth certificate is to go back to the High Court.
A five-judge Supreme Court yesterday refused an application by Dr Lydia Foy's lawyers to address issues regarding whether Irish law on the registration of births is compatible with provisions of the European Convention on Human Rights Act 2003 - which came into effect in January 2004 - or with recent decisions of the European Court on the rights of transsexuals.
Dr Foy's senior counsel, Gerard Hogan, had asked that the court should consider granting a declaration that Irish law relating to the registering of birth is incompatible with section 2 of the European Convention Act, which provides that the Irish courts should, insofar as possible, interpret laws in a manner compatible with the State's obligations under the European Convention.
The Chief Justice, Mr Justice John Murray, said the court believed those issues should be addressed by the High Court prior to the hearing of Dr Foy's appeal against that court's rejection of an application by Dr Foy to be registered as female. On that basis, Dr Foy's Supreme Court appeal, which was due to be heard yesterday, was adjourned pending the outcome of the fresh High Court case, which is expected to be heard by Mr Justice Liam McKechnie.
Senior counsel Mary O'Toole, for Dr Foy's estranged wife and children, said her clients would wish to call evidence in the new action as to the effect on their rights of altering the register.
Mr Hogan also indicated his side would consider making a fresh application to the registrar of births to have Dr Foy registered as a female on her birth certificate. This was because the European Convention Act had come into effect after the present proceedings were begun, he said.
The issues to be addressed in the future High Court action, which is being supported by the Free Legal Advice Centres, relate to whether Dr Foy is entitled to argue that Irish laws relating to the registering of births are incompatible with the provisions of the European Convention Act.
Judgment in the original Foy case was also delivered two days before a unanimous decision of the 17-member European Court of Human Rights in favour of Christine Goodwin (66), a former bus driver who, like Dr Foy, was born male but who underwent gender reassignment surgery. The European court held the UK's failure to recognise Ms Goodwin's new identity in law breached her rights to respect for her private life and her right to marry under the European Convention on Human Rights.
Ms Goodwin had argued the refusal of the British authorities to alter her birth certificate or give her a new social insurance number meant her employers knew she worked for them under another name and gender, with resulting embarrassment and humiliation.
Dr Foy (58), of Athy, Co Kildare, who was in court yesterday, was born with male genitalia and was registered at birth as a male. She suffers from a syndrome known as Gender Identity Disorder, a recognised psychiatric condition under which a person's individual sexual identity is at odds with their physical sexual indicators. She married in 1977 and fathered two children prior to undergoing gender reassignment surgery in 1992. The marriage ended in the 1990s and in 1993 Dr Foy changed her name.
In July 2002, Mr Justice McKechnie refused to grant orders directing the registrar of births to describe Dr Foy as female on her birth certificate.
However, the judge appealed to the legislature to keep the situation of transsexuals under review and to consider meeting their needs through legislation. In her Supreme Court appeal, Dr Foy has raised the continued absence of such legislation and the failure of the State to provide for a system of birth registration that conforms with her rights under the European Convention.
She further argues that societal changes should inform Irish legal decisions on the matter.
