Dr. Jillian T. Weiss

Irish Law Moving To Recognize Transgender Identity

Filed By Dr. Jillian T. Weiss | June 21, 2010 3:00 PM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: birth certificate, Europe, European Union, Ireland, Irish Times, marriage politics

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The Government has withdrawn its appeal against a landmark ruling by the High Court that Irish law on transgender rights is in breach of the European Convention on Human Rights.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, ยง 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.


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I'd like to believe that my homeland has seen the light, but mostly they have seen the likelihood of condemnation by the EU if they don't do this.

Wow,

More than eight hours have elapsed and only one comment. What an interesting day - David Cameron apologizes for the killings in Derry on Bloody Sunday and the announcement the Irish government is going to drop it's appeal in the Foy case both coming almost simultaneously. It's also been a day on the telephone with my lawyer about gendered language regarding concurrent estate matters. I still don't grasp all the implications of Goodwin v United Kingdom. The marriage issue haunts me every which way I turn. I am not rushing out to have anything changed on my Irish Passport. I wish, however, the reach of the ECHR extended to Tennessee. Seems the only place I am an actual citizen is some faraway nebula.

Why doesn't everyone just admit that, since there has never been any clear concept of "Gender Identity Order", it is really impossible to make a case for "Gender Identity Disorder". Why can't it be acknowledged that sex determination is variable and the legal definition of sex should to be loosened up to give people the same amount of wiggle room nature appropriates for itself. There would probably an end to mutilation of intersex children, less of a legal argument to foster resistance to marriage equality and it would include the added benefit of leaving Alice Dreger without much of a career. Yes, the Dan Savage article about what's been going on at Cornell and New York Presbyterian has been on my mind today, too. Why is it so hard to say intersex genital mutilation? Why is transsexualism called GID? Why is it so hard to admit we both exist?

Have a good midsummer's night everyone.

It is curious you call this piece Transgender Identity, Dr. Weiss.

I think you should answer edith's question:

Why is transsexualism called GID?

Goodwin v. U.K. even as in your cite, is not about transgender people, far less about transgender identity. It is about, as are all landmark cases exploited by transgender people for their purposes, about a person with the medical condition called transsexualism.

It is really quite sad the suffering and achievements of transsexual people is taken over by others, certainly others who suffer also--some will take may comments as precisely the opposite of what I am actually saying--and say they are something other than what they are.

In the service of a political ideology.

This is very disappointing, Dr. Weiss. Is this a case of the ends justifies the means?

I am eager to see where a transgender person, that is, in the narrow sense of someone who is exploring gender, who is not living a fulltime life, is not seeking to change their sex, has won a legal case such as Goodwin that has been exploited for the service of transsexual people.

It never is.

In your cite:

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

What is being spoken about here is the achievement of something rather unrevolutionary, certainly in the context of those who argue for the blasting of the gender binary/spectrum: simply the adoption, in service of the physical urge to change sex, the opposite social gender role.

It is sad the courage, strength and sacrifice of, as here, it is women of transsexual history, is erased, and whether they will or not, their achievement is wagered, less for their lives, or the lives of other transsexuals, but for those who refuse to recognize the very lives that will give them the equality they seek.

This is why the term gender identity and gender identity disorder is so frantically defended, despite its provenance with Blanchard and Zucker--who otherwise we all challenge--and not, say, sex identity and sex identity disorder.

Dr. Weiss, how can you call your piece Irish Law Moving To Recognize Transgender Identity when you write about transsexual people?

How can you erase the lives of transsexual people/people of transsexual history and impose upon them transgender identity?

Those are good questions, Jessica, and I did wrestle with them while writing the piece. Both the Foy and Goodwin courts discussed these issues in the context of sex reassignment surgery, which made the term transsexual seem to be more appropriate, and led me to pull out those quotes and highlight them. At the same time, the Irish Times article used the term transgender. In addition, the British Gender Recognition Act that resulted from the Goodwin case, which was praised and recommended by the Foy court, do not require sex reassignment surgery.

I realize that your comment, Jessica, did not specify SRS as the dividing line, but rather referred to living full-time as the dividing line. However, many people would not define people living full-time without SRS as transsexual. I'm not one of them, but someone who has not physically changed sex may or may not be within the definition, depending on your political ideology. That's part of the reason I thought the broader term transgender would be a more appropriate choice.

You are correct that the Foy decision does not apply to all transgender people. Someone who is transgender but not seeking to change sex, would not require the benefit of the Foy decision. The Foy decision only applies to those seeking to change sex.

There is no escaping political ideology. If I had used the term transsexual, that also would have been a choice of political ideology.

I chose to use the more inclusive term, and then specify the scope of the court's reach. I do believe that the opinion, and the Irish government commission, are moving towards recognition of transgender identity.

Thank you for your thoughtful response. Dr. Weiss.

The more I look at the history, in America, in Europe, in England, in Canada, the more I see a history of transsexual people, particularly transsexual women/women of transsexual history making the precedent-setting decisions, but their sacrifice being erased, and often degraded because they, counter to the transgender ideology, do not seek to challenge the dominant discourse around gender--they are not revolutionary enough.

The physical urgency to change sex, through hormones, transition, and surgery, can be thwarted at any step--rather like the way one of my recent instructors described the dialectic of structure and agency: "you can always do something, it just might not be quite what you want to do."

In a recent academic piece--which I am presenting to my supervisor today--I refer to gender identity as a form of political expediency in that it has a provenance, soon to include, hopefully, C-389, that privileges gender at the expense of sex; I take this to be less of a problem than having the legal category to be sexual orientation, defined to include gender identity and gender expression, e.g. Maine.

This erasure of the sacrifice of transsexual people who have created the foundations of the decisions that now include transgender people and their identity, the efforts in the medico-legal sphere, seem to be part of the tendency to forget the past--part of what I understand to be oppression and neoliberal modernity.

It has been argued on this website that what has been agreed to in the past is what we must follow through in the present, as if all that appears to happen in the past is sacred--including the demolishing of the achieved rights of transsexual people to bring them to the level of transgender people.

In Canada we didn't do this; in Europe, as I read the law, this wasn't done either.

I cannot escape the conclusion that "melting pot," the urge to bring everyone down to size, is part of the declaration of the transgender ideology, that we must all be the same identity to seek the same goals with its destructive corollary, if you have something more we will knock you down to size so you have to work with us or die.

Increasing numbers of transsexual people/people of transsexual history refuse this, what I have taken to call, transsexual wager; there response is, we did it for ourselves, and you, in the past; if you refuse this, we will do it for ourselves in the future; you're on your own.

I wonder what Brynn thinks about this? He used to do posts about being trans and living in Ireland and, if I remember correctly, it was a less than welcoming experience.

Hi,

What I wrote wasn't intended to be pointed. I don't write from the so-called "classic transsexual" point of view. In fact, what I was writing in regard to is how my thirty-five year old marriage complicates my citizenship problems as far as my dual U S/Irish citizenship is concerned. My situation is further complicated because of the fact that I was born in Tennessee.

I wrote what I wrote in an off handed way but I do agree that the notion that Foy or myself, for that matter, would be interested in having a "transgender identity recognized" is full of problems.

Dr. Weiss, you wrote:

Both the Foy and Goodwin courts discussed these issues in the context of sex reassignment surgery, which made the term transsexual seem to be more appropriate, and led me to pull out those quotes and highlight them. At the same time, the Irish Times article used the term transgender."

Smyth at the beginning of her article says:

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.

Even Smyth seems to frame the case as one where Foy is seeking to live as a woman and have her acquired SEX recognized, when she is speaking in terms of specifics.

You wrote:

In addition, the British Gender Recognition Act that resulted from the Goodwin case, which was praised and recommended by the Foy court, do not require sex reassignment surgery.

I understand the reasons for that.

Dr. Weiss you also wrote:

I realize that your comment, Jessica, did not specify SRS as the dividing line, but rather referred to living full-time as the dividing line. However, many people would not define people living full-time without SRS as transsexual. I'm not one of them

I think that is where a lot of problems arise. I don't think there is a clear dividing line where sex is concerned. I think, however, most people resort to the term gender when speaking of continuums because of an underlying belief that sex falls into two distinct categories and is unalterable, which leads to the denial that transsexulism and intersex exist.

Both Dan Savage and Alice Dreger avoided using the word intersex in their articles about the abusive research carried out at Cornell and New York Presbyterian. The cutting done there was done to make the body conform to an imposed gender. There are many who are upset the term "intesex genital mutilation" was replaced by the term "female genital mutitilation" which is seen by those who are upset as another instance of the erasure of the existence of intersex. It is the notion that gender and sex exist as simple dichotomies that is the underlying cause of this abuse. Gender Identity's "provenance" is John Money.

The term "Gender Identity Disorder" implies one's gender is contrary to their sex but sex is much more complicated than something that exists as a dichotomy. Dreger's colleague, Zucker, knows this but he still abuses young children by trying to shape a "gender identity" in the fashion of John Money. It has led to endless physical and psychological abuse. Notions of "transgender identity" are patronizing at best and can lead to very serious forms of abuse.

The CAMH/Northwestern relationship is indicative of just how interrelated sense of self is with sex differentiation. There would not be such a close relationship if that weren't the case.

I am not trying to equate transsexualism with intersex. What I am trying to do is point out that transsexualism is undeniably physical after medical treatment and for many people is a physical issue before treatment. The psychological establishment has erased transsexualism and its medical counterpart has erased intersex. The idea of "gender identity" needs to be met with suspicion because it leads to the notion that people are disordered simply because their nature is different.

Sorry for the long comment. My feelings about this are too complicated. I shouldn't have jumped in on this yesterday. I just think legal gender recognition has to recognize the diverse nature of sex in which identity and orientation are inextricably intertwined in very complicated ways, sometimes.


You make many excellent points, edith.

What I am trying to do is point out that transsexualism is undeniably physical after medical treatment and for many people is a physical issue before treatment. The psychological establishment has erased transsexualism and its medical counterpart has erased intersex. The idea of "gender identity" needs to be met with suspicion because it leads to the notion that people are disordered simply because their nature is different.

I believe the evolution of academic, psychological, medical and, of course, popular discourse in the last half of the 20th and on into the 21st century has been to erase the physical aspect of our lives.

Most people, particularly those who subscribe to feminism, queer theory and, of course transgender theory/ideology, have a vested interest in doing this. Most people, however, simply do not have the lived experience to see out of this valley of reification, to coin a term.

This is what puts those of us who are intersex and transsexual on the front lines--whether we wish it or not. Who would want to go through this if we had a choice; this is the very point the Goodwin Decision makes in the part Dr. Weiss cites.

There are those who seek to erase our lived experience because they do not live it--and their lives conform to notions of social constructionism; there are those who seek to erase our lived experience because of their good faith in believing only if we all share the same identity will we be able to seek the same goals; and there are those who have been brought in this ideology and cannot see out of it--who are oppressed in the classical sense of oppression.

The danger of gender identity as an artifact of bad theory, as you point out, edith, leads to the impossibility of seeing, even thinking the very substance of our lives, our sex.

The prudery of so many Americans requires them to use the word, and concept, of gender rather as Victorians were compelled to cover piano legs with skirts--and blinds them to the reality of our lives; we must be covered up.

A notion such as sex identity is as inconceivable to them, and is as offensive, as that of transsexual.

Those who must change sex--transsexual people--and those whose sex is ambiguous, at least to others--intersex people--are a threat not simply to their thinking, but since their thinking is the substance of their lives, we are a threat to their lives also.

So, we must be eliminated.

I for one do NOT wish to be eliminated or erased. It seems pretty obvious to me that the reason that "trans genders" the recently coined term for all those "gender variant" type people who DO NOT want to change their SEX, want so desperately to erase transsexuals is that the TS stand in stark contrast to the CLEAR DIFFERENCE to the TG.

The identifying criteria of a TS is their uncompromising, unrelenting drive to match their bodies to their brains/"souls"/spirits. The very essence of a TS's identity is just the same as any other natal conceived person whose SEXUAL IDENTITY conforms with their morphological SEX, EXCEPT that their bodies do NOT match.

Trans sexuality has NOTHING to do with GENDER, which is a social construct. "Gender" is HOW one EXPRESSES one's sexuality. I am female, hence I dress and 'act' like a woman/girl. I may CHOOSE to dress and act like a boy/man in which case I would be "gender variant" or "gender transmorphic" or simply transgender.

Amy Hunter Amy Hunter | June 27, 2010 7:38 AM

What a truly compelling discussion!

I have always been bothered by the term Transgender. I am today, have been always, Transsexual. I choose to live as a female and have taken the necessary steps to conform my physical sex to that which my sensibilities demand of me. The goal of transition, for me, was always to minimize the inconsistencies in my physical form with how I am "wired".

Of late, the pieces I write have drawn an implicit distinction between "trans"-all inclusive, "transgender"-referring to social identity, and "transsexual".

My thinking is not well developed along these lines, but discussion such as this adds much needed information for me to ponder. Thank You!