Thursday 15 November 2018

Birth registration laws facing repeal after transgender ruling

Dr Lydia Foy: dentist was born Donal Mark Foy
Dr Lydia Foy: dentist was born Donal Mark Foy

Dearbhail McDonald and Tim Healy

THE Government may be forced to repeal parts of Ireland's birth registration laws following a landmark legal challenge by a dentist who underwent a sex change to become a woman.

Dr Lydia Foy yesterday became the first recipient of a declaration of incompatibility with the European Convention on Human Rights (ECHR).

If the Government does not challenge the declaration, Taoiseach Bertie Ahern will have to go before the Dail and Seanad to outline how the State will change the country's birth registration regime to make it compatible with the Convention.

Last November, Dr Foy received a declaration that certain provisions of Ireland's birth registration laws violate her human rights, by not providing "meaningful recognition" of her new female identity.

And yesterday the High Court formalised declarations that sections of the Civil Registration Act 2004 violate the right of Dr Foy's to respect for her private life under the ECHR.

Born Donal Mark Foy, the transgendered dentist married and fathered two children before undergoing gender realignment surgery almost 15 years ago. The marriage ended in the 1990s and Dr Foy changed her name by deed poll in 1993.

Dr Foy's estranged wife and children had opposed the proceedings, expressing concern about implications for the legality of the marriage and succession rights.

Yesterday, Mr Justice Liam McKechnie granted a two-month stay on the declarations to allow the State time to consider whether it will appeal his rulings in favour of Dr Foy.


The judge also awarded costs of the court proceedings to Dr Foy against the State.

If the State decides not to appeal, the coming into effect of the declarations in two month's time will place an onus on it to urgently address the situation of transgendered persons.

Experts have cast doubt, however, on the practical import of a declaration of incompatibility which, unlike a finding of unconstitutionality, does not render the incompatible law invalid and may merely act as a "warning sign" to the Government to make its laws compatible.

However, if the declaration of incompatibility was upheld, it will place the Government in unchartered waters.

Judge McKechnie has indicated that one means of bringing the State into compliance would be to introduce laws similar to the Gender Recognition Act in the UK, under which a person may secure identity documents and new birth certificates reflecting their new sexual identity, without their original birth or marriage certificates being affected.

Dr Foy made legal history last October when the judge indicated he was prepared to make a declaration that provisions of the Civil Registration Act 2004 are incompatible with Article 8 of the ECHR.

Mr Justice McKechnie also criticised the continuing failure of the State to enact legislation to deal with the situation of transgendered persons.

Gender Dysphoria, the syndrome where a person's sexual identity is at odds with their physical sexual indicators, was a real and recognised psychiatric condition, the judge said.

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