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 1 Foy v. An t-Ard Chlaraitheoir & Others [2002] IEHC 116; Foy v. An t-Ard Chlaraitheoir & Others (No. 2) [2007] IEHC 470 1 as ªIº2. The European Court held that the UK, whose legislation was essentially the same as in 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. 2 Goodwin v. UK (2002) 35 EHRR 18; `I' v. UK Application No. 25680/94, 11July 2002 2 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. 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.) 3 Corbett v. Corbett [1970] 2All ER33 3 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. 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 rights- supporting Liberal Democrats will put a brake on their new coalition partners at least on that issue.