The Irish government this week removed its objections to a 2007 Irish High Court judgment.
The High Court held that the Irish government violated Irish law by failing to make provisions to recognize sex reassignment for transgender people.
The Irish government has taken steps to convene a commission to make recommendations on legislation to address this.
This is a welcome development in the law affecting transgender people's attempts to escape the marginalization perpetuated by laws in many places in the world.
From the Irish Times today:
State drops transgender challenge
JAMIE SMYTH Social Affairs Correspondent
The Government has withdrawn its appeal against a landmark ruling by the High Court that Irish law on transgender rights is in breach of the European Convention on Human Rights.
The decision brings to an end a 13-year legal battle against the State by Dr Lydia Foy, a former dentist who was registered as male at birth and fought for legal recognition to live as a woman.
It also paves the way for the Government to propose new legislation giving transsexuals the right to obtain birth certificates showing their acquired sex and the entitlement to marry in that gender.
The rights contained in the European Convention on Human Rights Convention became part of Irish law in 2003.
European Union law, which stems from the civil law tradition of far-reaching statutory codes, is reaching its tentacles into many common law jurisdictions. Common law jurisdictions, like the US and Ireland, traditionally have relied more heavily on judicial interpretation and judicial precedent, which tends to keep law more conservative (despite occasional bouts of judicial activism).
In the 2003 Act that incorporated the rights of the European Convention, Ireland grants to the courts the power to make a declaration that a law is incompatible with the Convention. Unlike judicial review in the United States, such a declaration does not render the law in question invalid. Rather, the the Irish Prime Minister is obliged to bring it to the attention of the Irish Parliament.
A litigant who has been granted a declaration of incompatibility may receive monetary compensation, within the discretion of the Government.
The European Court of Human Rights (ECHR) in Strasbourg found in favor of recognizing transgender rights to legal recognition in 2002 in the case of Goodwin & I v. United Kingdom. In that case, the ECHR specifically directed the UK to pass legislation to allow Ms. Goodwin's birth certificate to be changed, and to require governmental recognition of the change in regard to marriage and other state benefits.
An apparently important aspect of the Goodwin opinion seemed to be the fact that the UK had approved and paid for her sex reassignment surgery, and that chromosomes do not always determine sex.
81. It remains the case that there are no conclusive findings as to the cause of transsexualism and, in particular, whether it is wholly psychological or associated with physical differentiation in the brain. The expert evidence in the domestic case of Bellinger v. Bellinger was found to indicate a growing acceptance of findings of sexual differences in the brain that are determined pre-natally, though scientific proof for the theory was far from complete. The Court considers it more significant however that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with "gender identity disorder"; see also the International Classification of Diseases, tenth edition (ICD-10)). The United Kingdom national health service, in common with the vast majority of Contracting States, acknowledges the existence of the condition and provides or permits treatment, including irreversible surgery. The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance.
82. While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex (Sheffield and Horsham, cited above, p. 2028, § 56), the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55 above).
83. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals.
As directed by the ECHR, the UK government passed the Gender Recognition Act in 2004. That Act does not require sex reassignment surgery, but it does require that the individual have transitioned to living in the opposite gender two years prior to the issuance of a Gender Recognition Certificate, and that there be certifications from a registered medical practitioner or chartered psychologist in the field of gender dysphoria and another registered or chartered practitioner.
Interestingly, the Irish High Court said that the Goodwin decision was not binding on it because Ms. Foy's initial complaint pre-dated that decision by several years. However, in the end, the Irish High Court said that the reasoning of the Goodwin decision was persuasive. The decision can be found here.
The Court noted a letter written by Ms. Foy's solicitor in 2007, stating that "... The plaintiff's position is that there is and has been an obligation on the State arising from both the Constitution and the European Convention on Human Rights to recognise that, following her successful gender reassignment surgery in 1992, the plaintiff is of the female sex."
The Court doesn't specifically state whether Ireland has to specifically address sex reassignment surgery or not. However, it does suggest that the British system would be a good one to consider, and that system does not require sex reassignment surgery.
It found Ireland in violation of the European Convention on Human Rights, and decided to issue the first declaration of the incompatibility between Irish and European law. According to Justice Liam McKechnie, provisions of article 8 of the Convention protecting Foy's right to respect for private life had been violated when the State failed "to provide for 'meaningful recognition' of her female identity", and the Irish Prime Minister and the Parliament should consider adopting the British system.
According to the Irish Times, the Government's decision this week to withdraw its appeal against the 2007 decision by the High Court means it will have to reply to that judgment. I'm not exactly sure what this means, but I suspect it means the Government will have to address the judgment by means of legislation.
According to the Irish Times, In anticipation of the withdrawal of the legal appeal the Government has set up an inter-departmental committee on the "legal recognition of transsexuals."
The gender recognition advisory group held its first meeting on 6th May and is due to make recommendations on legislation within six months. Under its terms of reference it is to propose heads of a bill to provide for:
- a process for legal recognition of the acquired gender of persons suffering from gender identity disorder who have made transition from one gender to another.
- to set up a gender recognition register for such persons. The certificates issues by this register should be indistinguishable from birth certificates and not refer to the fact a person has acquired a new gender.
- an entitlement to transsexuals to marry in the legally recognised reassigned gender.