The High Court has ruled that the State is in breach of the European Convention on Human Rights (ECHR) over its failure to recognise a sex change that a transgendered person underwent more than a decade ago.
Dr Lydia Foy, Athy, Co Kildare, was born male but had gender realignment surgery 15 years ago. She took the action to secure a birth certificate describing her as female.
Dr Lydia Foy. Photo: Cyril Byrne/The Irish Times
She abandoned an earlier claim for her original birth certificate to be altered and instead wants a new birth certificate reflecting her female gender.
In today's ruling Mr Justice Liam McKechnie said that the State, in refusing a new birth certificate, is in breach of article 8 of the ECHR.
He urged the Oireachtas to review laws affecting those who undergo gender reassignment or face action from Strasbourg.
In a 70-page judgment Mr Justice McKechnie said he could not force this change, but that Irish law was incompatible with the European Convention on Human Rights.
The judge said blocking Dr Foy from making an alteration to the birth certificate had gone against rights set out in the Convention.
He said Dr Foy had suffered stress, humiliation, embarrassment and loss of dignity in dealing with her condition of gender identity disorder - well recognised by psychiatrists.
The judge said Dr Foy's right to privacy may be affected if she is imprisoned or faces insurance claims. She has managed to secure some official documents including a driving licence and a passport. The judge said, however, a birth certificate is considered a snapshot of time and historical record of fact. He told the High Court his judgment must be laid before the Houses of the Oireachtas within five weeks and the issue addressed.
Mark Kelly, Irish Council for Civil Liberties
If moves are not made to draw up new legislation dealing with the recognition of transsexuals Dr Foy will have the option of going to the European Court.
Fine Gael justice spokesman, Charlie Flanagan said the judgment required an immediate response from the Government.
"I believe that some legal framework must be formed to allow legal recognition for transgender people. Understanding, fairness and respect should be paramount on this complex and difficult issue," he said.
Labour Party human rights spokesman Joe Costello welcomed the ruling and said Dr Foy had shown "great courage and determination" in pursuing her case.
"This is a humane judgment which must now be addressed by the Government including, if necessary, changes to the law.
"As Mr Justice McKechnie noted in his judgement, those who under go this process have a strong desire to have the change recognised not just socially, but also legally."
The Irish Council of Civil Liberties (ICCL) welcomed today's judgement and called it "groundbreaking".
Speaking after the case ICCL Director Mr Mark Kelly said: "The ICCL calls upon the Government to heed this judgment, and to act promptly to ensure that the human rights of transgendered people living in Ireland are fully respected."
Additional reporting PA