In a landmark High Court decision yesterday, a dentist who was registered at birth as a male and later underwent a sex change operation lost her application for an order that she be described on her birth certificate as female.
Behind the case taken by Dr Lydia Annice Foy, who married in 1977 and fathered two children, was a tragedy and "story of human proportions which perhaps unfortunately the court is unable to recreate", Mr Justice McKechnie said. He hoped the days when people with gender identity disorder (GID) were mocked, derided and abused were "long gone".
Dr Foy (55), of Athy, Co Kildare, was registered at birth as Donal Mark Foy but underwent gender reassignment surgery on July 25th, 1992 after being diagnosed as a transsexual. In 1993, she changed her name by deed poll. Her marriage ended in the 1990s.
Her proceedings were against the Registrar of Births, Deaths and Marriages and the State, and were supported by the Free Legal Advice Centres. Her application was also opposed by Dr Foy's wife and daughters, who were notice parties. The family said altering the birth certificate as sought would render the marriage void and this would have a profound effect on the status of Mrs Foy and the children.
In a judgment running to 130 pages, delivered over four hours yesterday, Mr Justice McKechnie refused the orders sought. He also refused to grant costs to the State against Dr Foy but deferred until July 29th her application for costs against the State.
He referred to the difficulties of the situation for Dr Foy and her family. "This is a tragedy, not only for the person inflicted in this case, Dr Foy, but also for her immediate family - her two children and Mrs Foy," he said. "Add the extended family, friends, colleagues and others and then one can see the scale of disruption."
The judge said he would, in his judgment, wherever possible and unless it made no sense to do so, in deference to the applicant, use the pronouns "she" or "her".
Mr Justice McKechnie, who heard the case over 14 days in October/November 2000, ruled on the basis of his findings from the medical and scientific evidence that Dr Foy was born male with conforming biological structures.
The issue was whether or not, for the purposes of registering a birth, the law should hold that the criteria in determining sex were not confined to the four biological markers but should also include a fifth indicator, namely brain differentiation, he said.
He ruled that the evidence was insufficient to establish the existence of brain differentiation as a marker of sex and the court could not therefore give it the legal recognition which was sought.
Various studies had not established, or not sufficiently established, the existence of brain differentiation as a suggested fifth indicator of sexual differentiation.
He believed the four biological indicators should continue to govern the determination of sex for the purposes of the case and that transsexualism could not, at least as of now, found its existence in neurosigns. That might be the case with further research some day but his view, from the evidence in the case, was that that stage had not yet been reached.
Given his conclusions, the judge said he could not agree with Dr Foy that the approach of the registrar to her application to alter her certificate was either incorrect or incomplete It also followed from his interpretations of relevant sections and regulations of the legislation that the Registrar General was correct in the entry relating to sex. No other entry was available to the registrar. It could not be said the Registrar or his officers in any way acted outside his powers or outside the scope of the legislative framework.
The position adopted by the Registrar General in correspondence and evidence was in accordance with the relevant provisions. Even if minded to do so, the Registrar General would have no power or authority under those provisions to make the correction sought.
The judge said he did not believe his view was compromised by recent developments in the European Court of Justice and the UK courts.
The judge also refused Dr Foy's application to declare as unconstitutional the Registration of Births and Deaths (Ireland) Act, 1863, and regulations of 1880 because of their failure to allow for correction of the birth registrar entries relating to Dr Foy.
Dr Foy had claimed that the inability to correct entries was an unwarranted and unjustified interference with her constitutional rights to privacy, equality and dignity and her right to marry. She argued the existing law provided only for a person to marry the opposite sex and this infringed her right to marry.
The judge said he could not conclude it was unreasonable for the domestic laws of this State to have in place a system of birth registration which includes an entry as to sex. Dr Foy wanted special provision for a small group of people but, in his view, and in the context of what a birth certificate is, this was not a reasonable requirement on her part and would render the entire system inoperable.
Since every newborn could potentially be a transsexual, there would effectively be no system in operation.
He added Dr Foy's position was complicated by her lawful marriage and that two children were born of that marriage. If the birth entry was changed to indicate as a matter of law she was born female, that would have serious implications for the family members.
The legitimate interest of the State was entitled to have an appropriate system in operation in relation to births and the present system was, in his view, appropriate, representing a fair balance between the rights of transsexuals and persons affected by their relationship with a transsexual.
The judge acknowledged that some inconvenience is still caused to the transsexual but this had been ameliorated considerably in the past decade. He believed the degree of intrusion on the human dignity and privacy of Dr Foy was not so excessive or disproportionate as would breach those constitutional rights.
He also held there was no breach of the right to equality as, despite advances in surgery, there was a difference between Dr Foy and a biological female.
He further found no sustainable basis for Dr Foy's argument that there was a violation of her constitutional right to marry any party being the same biological sex as herself.
It was crucial for legal purposes that parties to a marriage be of the opposite biological sex, and marriage understood by the Constitution referred to the union of a biological man and biological woman.
