Sunday 17 November 2019

Transgender woman claims State failed to enact laws recognising her rights

Dr Lydia Foy
Dr Lydia Foy

A TRANSGENDER woman claims the State continues to fail enact laws recognising her rights as a transgendered person despite a declaration six years ago that such failure breached human rights, the High Court was told.

Dr Lydia Foy says as a result she wants her legal action against the State over the matter to go ahead.


She wants a birth certificate in her acquired female gender and is also seeking damages for breach of her rights, personal injuries and humiliating and degrading treatment.


As the European Convention on Human Rights Act 2003 provides a mechanism for compensating people whose rights are transgressed, the Government has appointed Eoghan Fitzsimons SC to deal with that aspect, with a meeting to be held shortly, Mr Justice Paul Gilligan was told yesterday.


The judge, after noting arguments by the State that it is moving to enact the legislation, fixed a provisional hearing date of November 7. The case will proceed on that date if matters are not "regularised" by then, he said.


Dr Foy's bid for a birth certificate in the female gender, dates back 21 years to March 1993 when she first wrote to the registrar general for that certificate.


After that certificate was refused, she, suppoprted by the Free Legal Advice Centres, initiated court action, culminating in a 2007 High Court finding the State’s failure to legislate to recognise transgender persons in their preferred gender breached the European Convention on Human Rights.


Last July, some six years later, Minister for Social Protection Joan Burton published heads of a Gender Recognition Bill.


The Oireachtas Joint Committee on Education and Social Protection has recommended the Bill be altered so the minimum age at which persons may apply to change their registered gender is 16, not 18. It has also voiced concern over a provision requiring married transgender persons to divorce their spouses as a precondition for recognition in their preferred gender.


In court yesterday, Bill Shipsey SC, for Dr Foy, said she was very anxious the case go to trial as more than six years had passed since the High Court decision and she was still awaiting legislation.  If a trial date was fixed for July, that might "concentrate" minds, counsel said.


Nicholas Butler SC, for the State, asked that the application to fix a trial date be adjourned to the next law term so the State can continue to bring legislation forward.


It was anticipated the Gender Recognition Bill would come before Government, with or without amendments, in the forseeable future, he added. This was a "highly complex" matter and it was not unreasonable for some more time to be allocated and the court should not embark on a trial that might ultimately be moot (pointless) if substantial progress was achieved.  


Mr Butler said there had been substantial progress in this matter in the last few months and if the trial date application was adjourned to the next law term, there might be further clarity. Matters "are moving quickly", he added.


Mr Justice Gilligan said he was conscious of Dr Foy's constitutional right of access to the courts and to have her case heard.  It also seemed there had been progress on legislation and it was anticipated more progress would be made reasonably quickly, he said.

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