Human Rights in Ireland

It was confirmed yesterday that the Irish government has withdrawn its appeal to the Supreme Court against the High Court decision of McKechnie J in Foy v An t-Ard Chláraitheoir & Ors. In that case, the learned High Court judge held that the Irish state was in breach of the European Convention on Human Rights due to the absence in this jurisdiction of “any measures to honour the convention rights” of transgender citizens. This was based on the fact that under Irish law a citizen cannot have a birth certificate issued to them denoting a gender other than that declared at the time of birth. McKechnie J held that this situation constituted a breach of rights protected under Art 8 ECHR: the rights to private and family life.

The delcaration of incompatibility made under s 5 of the European Convention on Human Rights Act 2003 must be laid before the Dáil and the Seanad within 21 days of its issue. Obviously, given the appeal to the Supreme Court, this matter was delayed. However, the Irish Times reports that in anticipation of officially withdrawing that appeal, the government has established an interdepartmental committee on the legal recognition of transsexuals. This committee, the Gender Recognition Advisory Group, has been asked to provide the Heads of a Bill to address relevant matters including:

• the creation of a process for legally recognising the acquired gender of persons suffering from gender identity disorder who have made the transition from one gender to the other;
• the creation of a gender recognition register for such persons from which a document indistinguishable from a birth certificate can be issued;
• and, the establishment of an entitlement for transgendered persons to marry in their legally recognised acquired gender.

The Group will report on these matters to the Minister for Social Protection and it is hoped that Lydia Foy’s 13 year legal battle will conclude with the enactment of gender recognition legislation in the near future.

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