ANALYSIS:Lydia Foy has achieved a legal first by forcing the Government to legislate for rights the State has refused to recognise up to now, writes CAROL COULTER
THE TAOISEACH has 21 sitting days to inform the Oireachtas that sections of the Civil Registration Act 2004, preventing a transgendered person from obtaining a new birth certificate, are incompatible with the European Convention on Human Rights, and what he plans to do about it.
However, as there are less than 21 sitting days left in this session, he is unlikely to make the announcement until the Dáil resumes in September.
This gives the Government an opportunity to draw up proposals, though they have already had three years to do so, since the original ruling was made in October 2007. That decision obliged the Government, under the Human Rights Act 2003, which incorporated the European Convention on Human Rights into Irish law, to inform the Oireachtas of a declaration of incompatibility within 21 days and to prepare to rectify the situation.
Because the Government decided to appeal that decision to the Supreme Court the clock was stopped and nothing was done, but its decision to withdraw the appeal has now restarted it.
The 2003 Act made it possible for citizens to seek rulings from the Irish courts under the European Convention on Human Rights, rather than having to go to the court in Strasbourg.
Under that Act a person could seek a declaration of incompatibility, obliging the Government to take action to rectify the situation and bring Irish law into line with the convention and the jurisprudence of the Strasbourg court. It does not, however, transcend the Constitution.
In the past when Irish citizens have obtained a ruling from the European Court of Human Rights that aspects of Irish law were incompatible with the convention, the Government has moved to change the law, giving rise to such reforms as the introduction of free civil legal aid and the reform of the law on homosexuality.
The Foy decision was the first declaration to be granted in an Irish court and the first to be finalised. It is ground-breaking in that it is a positive obligation on the State to establish rights that were not recognised up to now, rather than stop an infringement of a right that was already there.
Although the Government had lodged an appeal against the decision, work has already started on new legislation. Last May the Government announced the setting up of an interdepartmental advisory group, chaired by Oliver Ryan, “to advise the Minister for Social Protection on the legislation required to provide for legal recognition by the State of the acquired gender of transsexuals”.
On May 14th the new Minister of State for Equality, Human Rights and Integration, Mary White, told a symposium in UCC that the group was expected to make a recommendation on the proposed legislation within six months.
Already in 2008 a new Passports Act was enacted which provides for the issue to transgendered persons of passports in their acquired gender, giving rise to the ridiculous situation where a person could have a birth certificate in one gender and a passport in another. However, it was an indication that movement was coming, and in 2009 the renewed programme for government contained a commitment to legislate in this area.
The issues that will have to be addressed include the right of transgendered persons not only to a birth certificate and other official documents in their acquired gender, but to marry in that gender.
Other questions will also arise, particularly those relating to everything they did in their previous lives. What if they were married before, for example? What about the rights of children they may have had?
At the moment a person who suffers from gender identity disorder (the condition suffered by transgendered people) can obtain an annulment of their marriage, and a number of annulments have been granted on these grounds, whether the person underwent gender reassignment surgery or not. But this deprives the spouse of any rights, and involves a declaration the marriage never existed.
Under the UK law introduced in the wake of the ECHR ruling, the Gender Recognition Act, the actions of a person who undergoes gender reassignment are not invalidated and the rights of former spouses and children, including maintenance and inheritance rights, are preserved.
It is a ground for divorce, but this preserves the rights of the spouse under divorce law. The children retain their birth certificates with the name of each parent as they were at the time. A separate register is maintained which can be accessed by those who need to, such as the children of an original marriage in the old gender.
The UK law also does not require a person to undergo surgery in order to qualify for gender reassignment. It recognises that some people may have health or other reasons making them unable to undergo such extensive and onerous surgery, and people can obtain recognition by a Gender Recognition Panel if they have been diagnosed with gender identity disorder, have lived continuously in their acquired gender for two years and intend to continue doing so.
This law also applies in Northern Ireland, so already there could be Irish citizens benefiting from this Act, but, so far, unable to access their rights in the Republic.
The advisory group has a lot to ponder, but, thanks to the work already done in the neighbouring jurisdiction, following a ruling under a very similar Human Rights Act, it does not have to reinvent the wheel.
Carol Coulter is Legal Editor