A scalpel can't rewrite history, whatever the surgery
The Government may have conceded defeat, but the case just wasn't worth fighting, writes Eilis O'Hanlon
Sunday June 27 2010
It's a woman's prerogative to change her mind, but it's not one that Dr Lydia Foy has exercised much. Since first squaring up to the Irish government over a decade ago, the transsexual former dentist has never wavered from the belief that her birth certificate ought to have been altered following gender reassignment surgery to reflect the fact that she was now, physically, what she had always felt herself, psychologically, to be, namely female.
Last week, Dr Foy finally triumphed, as the Irish Government dropped plans to appeal to the Supreme Court a 2008 judgment from the High Court which stated that Irish law was inconsistent with the European Convention on Human Rights on this issue and which harshly criticised the Fianna Fail administration for failing to legislate to close the gap.
A great day then for Lydia Foy, and other transsexual campaigners, who all deserve their moment of glory after years of frustration. Great news too for Green Party deputies, who have clearly got their Fianna Fail colleagues to drop their opposition to having psychological definitions of gender accepted on an equal footing with biological ones. No more can grassroot
Greens whine that the party has achieved nothing in office.
This and a vote on stag hunting in a single week; John
Gormley and co are clearly on a roll. It's not such a bad result for the rest of us either, since there probably wasn't much point fighting this all the way to the Supreme Court and then into Europe, when the result was a foregone conclusion. Even Iran allows post-operative transsexuals to change their birth certificates now. No one wants to lag behind the ayatollahs on liberal issues.
All the same, it's important not to get carried away. The Irish Government may have conceded defeat, but that doesn't mean transsexual campaigners have been proved right trying to have historical records such as birth certificates altered retrospectively. All that's been established is the case wasn't worth fighting. It's still a perfectly reasonable argument that official documents drawn up decades ago are best left untouched, even if Dr Foy's more melodramatic supporters will insist on seeing every sign of resistance to their heroine's demands as some awful manifestation of oppression.
Far from being discriminated against, Lydia Foy has enjoyed a pretty good deal at the hands of the Irish State, from the start when the Eastern Health Board contributed thousands to the cost of sex change surgery in England, through to providing a new medical card, driving licence, passport, polling card, tax and social security documents when need arose. The one thing they didn't want to do was change her birth certificate, and one of the reasons for that was that Dr Foy's own children and former wife "strongly resisted" this move.
That's hardly unreasonable either. As the 2008 High Court judgment by Mr Justice Liam McKechnie said : "Other lives are also profoundly affected. Mrs Foy, at a young age, has lost a husband, and her children, a father." Mary Foy didn't want Big Brother telling her that she married a woman. Nor did the couple's two daughters want human rights legislation to unfather them at a linguistic stroke.
As Donal, Dr Foy managed to fertilise two eggs in his then wife's womb. The family simply wanted that to stand as accepted history. Then there was the problem that Dr Foy wanted the birth certificate amended to state that her name at birth was Lydia Annice, when quite evidently it wasn't. Her parents named that child Donal Mark. The original 2002 High Court judgment explained the situation this way: "The entry was a historical record of the decisive moment of birth but was not and was not intended to reflect any further or later events, no matter how significant, in a person's life." The registrar didn't make a mistake at the time. He did his job properly. Surgery subsequently changed the physiological facts, but scalpels can't change history.
The way this disagreement has been got round is through a classic piece of legalese which is to say that both the original birth certificate and the later altered one are now equally valid, which is a tad Jesuitical, like letting them exist in parallel universes in the hope that they never have to meet. If that does the trick, fair enough. But nowhere has it been satisfactorily proven that what's known as the 'brain sex theory' of gender development, which states that 'female' brains can develop in otherwise 'male' bodies, is anything other than what its name says it is -- a theory, a hypothesis, a claim.
A theory, what's more, which has plenty of detractors among sexologists who question the scientific rigour of the brain sex argument, and point out that the female characteristics supposedly found in transsexual brains are also found in male homosexual brains and so cannot alone account for the condition.
Even if it could be proved that the brain has a gender independently of the body, it's still the case that the brain and the body are at odds, so how come there's an automatic assumption here that it's the brain which is right and the chromosomes and biology which have made a mistake?
The brain isn't the most objective judge of its surroundings, after all. The brain sometimes tricks its host into thinking he's Napoleon; the chromosomes never make him think he's the Duke of Wellington.
It could be that science will ultimately prove the brain sex theory right, but it hasn't yet. Research goes on. It's the law which is trying to move ahead of the science on this issue, and it's doing so for purely social and political reasons.
Maybe changing the law to make transsexuals feel better is the progressive, compassionate way to handle these questions. There's still nothing wrong with being concerned at where this is leading. Children who say they feel as if they're in the wrong body are already being prescribed drugs to halt puberty, before they ever have the chance to test whether this is a genuine and lasting state of mind or just normal adolescent confusion. Evidence from clinics in the Netherlands suggests that three-quarters of teenage boys who feel this way go on to live as normal gay adults rather than opting for surgery. There's a risk that fluid mental states are being fixed by doctors and campaigners too early during development.
There also remain numerous other areas of controversy. Examples of this have already arisen where a man convicted of murder and attempted rape in England applied for, and won, the right to be transferred to a woman's prison even before he'd had gender reassignment surgery.
All-women's colleges have also been forced to accept into their ranks men who have become women, regardless of how uncomfortable this may make them feel. There's more to human rights than shouting a few slogans, hysterically dismissing all sceptics as backwoods rednecks, and then expecting the State to act as your own personal wishfulfilment agency. Still, there's women for you, as Albert Reynolds once said.
Originally published in
