A decision by the European Court of Human Rights yesterday brings the legal recognition of the rights of Irish transsexuals closer, writes CarolCoulter, Legal Affairs Correspondent
On Tuesday Dr Lydia Foy lost her two-year legal battle to have her birth certificate amended to reflect the fact that, though registered at birth as male, she had undergone surgery to allow her to appear and live as a woman.
While sympathetic to her plight, Mr Justice McKechnie felt it did not justify him overruling the system of birth registration that had served the State well for over a century.
But in rejecting Dr Foy's case, the judge appealed to the legislature to keep the situation of transsexuals under constant review, and to give consideration to meeting their needs through legislation.
In Strasbourg yesterday the European Court of Human Rights found that the British government had violated the rights of a 64-year-old former bus driver and transsexual, Ms Christine Goodwin.
That decision will strengthen Dr Foy's planned appeal to the Supreme Court, which her lawyers confirmed yesterday.
During Dr Foy's case here the High Court heard that about one person in every 30,000 suffers from some form of Gender Identity Disorder. In recent years there has been a steady trickle of cases involving transsexuals to the European human rights court.
However, to date there had been no unequivocal statement from Strasbourg of the entitlement of transsexuals to have their new status recognised, or of their right to marry, although the court has appealed to national authorities to keep the situation of transsexuals under review in legislation.
That changed yesterday when the 17-member court, including its Irish member, Judge John Hedigan, unanimously held that the UK's failure to recognise Ms Goodwin's new identity in law breached her rights to respect for her private life and her right to marry under the European Convention on Human Rights.
She had argued that the refusal of the British authorities to alter her birth certificate or give her a new social insurance number meant that her employers knew she had worked for them under another name and gender, with resulting embarrassment and humiliation.
She also argued that she had had to continue paying social insurance contributions as a man until the age of 65, while women could stop such payments at 60. She also claimed that the state denied her her right under the Human Rights Convention to marry and found a family.
In previous judgments the Strasbourg court had pointed to the "margin of appreciation" which allowed different states to maintain different systems of law without contravening the convention.
In this judgment, and in the light of the failure of the British government to legislate, it found "that the respondent government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the convention."
Aspects of the Strasbourg judgment that are likely to feature in an appeal to the Supreme Court by Dr Foy include its statement that "there was no material before the court to show that third parties would suffer any material prejudice from any possible changes to the birth register system". It noted that the British government was currently discussing reform of the registration system to allow for ongoing amendment.
If the British government does institute such reforms, it could produce anomalies between the birth registration system in Northern Ireland and in the Republic.
The Republic's system is based on an 1880 British Act that predates independence, and is therefore similar to the British system.
The Strasbourg court also upheld Ms Goodwin's right to marry. It said: "While it was true that Article 12 referred in express terms to the right of a man and woman to marry, the court was not persuaded that at the date of this case these terms restricted the determination of gender to purely biological criteria. There had been major social changes in the institution of marriage since the adoption of the convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality."
THE Irish Constitution sanctifies the status of "the family, based on marriage", and marriage is defined as between a man and a woman. Under Irish law the Constitution supersedes the European Convention on Human Rights.
But neither the Constitution nor the law defines a man or a woman, and in any appeal to the Supreme Court the evidence given in the High Court, where it was argued that there were neuro-biological and psychological indicators of gender, as well as physical ones, is likely to resurface.
Nonetheless, the Supreme Court is not obliged to follow judgments of the European Court of Human Rights. It showed in the case taken by Senator David Norris on homosexual rights that it sometimes does not, even when it knows that the appellant is likely to succeed in Strasbourg. Following yesterday's decision it is now highly likely that Dr Foy will ultimately succeed in Europe.
It will then be up to the Irish State to legislate to allow her rights under the Human Rights Convention to be vindicated in Irish law.