Transgender Recognition in Ireland

Gender reassignment is not yet recognised in Ireland but is recognised in every other member state of the European Union.  This has lead to a somewhat bizarre situation where the Irish authorities will recognise the acquired gender of a transgender EU national but not that of a transgender Irish national.

In 2011 the Irish Registrar of Births, Deaths and Marriages registered a civil partnership between a transgender woman EU national and her female partner.  The reason the Registrar allowed the registration of this civil partnership was because, under EU law, a member state (including Ireland) is obliged to accept an applicant’s nationality as determined by his/her state of origin.

At the time of writing it has been in excess of twenty years since Dr Lydia Foy, a transgender woman (who is also a qualified dentist) first sought legal recognition of her acquired gender as a female from the then Registrar of Births in 1993.  In 2007 the High Court made a declaration in the case of Foy -v- An t-Ard Chláraitheoir & Ors that the lack of legal recognition of an individual’s acquired gender breaches Ireland’s obligations under the European Convention on Human rights Act 2003.

Despite this High Court declaration nearly six years ago no draft legislation has been published to date.  In 2011 shortly after taking office, the Minister for Social Protection Joan Burton assured interested parties that the heads of a bill would be published in 2012 however there is still no sign of a bill.  It has been suggested by commentators that this delay is because further research into the impact of any proposed legislation on the institution of marriage and the family in Ireland is required.

In March of this year (2013) it emerged that Dr Foy has issued new proceedings in the High Court against the Minister for Social Protection and the State seeking either an order compelling the Minister and the State to publish legislation on foot of the 2007 High Court declaration or, in the alternative, a declaration that the European Convention on Human Rights Act 2003 is void and has no practical effect in Ireland.

If the Court is forced to make a decision in this case it will be interesting to see how the judgment respects the doctrine of the separation of the three powers of the State; the legislative, executive and judicial.  The judicial arm of the State does not have the power to initiate legislation as that is the function of the legislative arm – the Dail and the Seanad. However, the judiciary is responsible for upholding the fundamental rights conferred on citizens by the Constitution (including one’s right to marry, equality, dignity and one’s identity) and ensuring that these rights have a practical effect. However, given the backlog in the courts’ system, we may have to wait for some considerable time before a decision is made.

Dr Foy’s case is unlikely to be heard for at least 2 years and maybe longer and she will inevitably encounter many more legal obstacles on route to a hearing in the High Court.  One must wonder how many steps remain in Dr Foy’s thousand-mile journey.

Update

Amorys Solicitors are delighted to hear that Dr Foy settled her long drawn out case against the State last Tuesday, 28th October 2014 on the basis of the State telling the Court it was the “expressed intention” of the Government to secure the enactment into law of the Gender Recognition Bill 2014, which would enable Dr Foy to get the certificate.