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Subsequently Foy lived entirely as a female. She had left the family home in 1990, and a judicial separation was granted on 13 December, 1991. Anne was given sole custody of the children with conditional access to Lydia, but in May 1994 the Circuit Court prohibited all access.<ref name="judge"/> |
Subsequently Foy lived entirely as a female. She had left the family home in 1990, and a judicial separation was granted on 13 December, 1991. Anne was given sole custody of the children with conditional access to Lydia, but in May 1994 the Circuit Court prohibited all access.<ref name="judge"/> |
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While Foy, who legally changed her Christian names in November 1993, was able to obtain passport, driving license, medical card, and polling card in the new name, her request to amend the sex on her birth certificate was refused.<ref name="ie760"/><ref name="it"> |
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</ref> She was issued with a fresh passport stating her sex was female,<ref name="it"/> and obtained a driving license, medical card, and polling card in the new name.<ref name="ie760"/> When Foy applied to have her birth certificate amended to reflect her new gender, however, she was refused. |
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==Initial court case== |
==Initial court case== |
Revision as of 18:27, 30 October 2009
Foy v An t-. Ard Chlaraitheoir | |
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Court | High Court (Irish: An Ard-Chúirt) of Ireland |
Full case name | Foy -v- An t-Ard Chláraitheoir & Ors |
Decided | 19 October 2007 |
Citation | [2007] IEHC 470 |
Case history | |
Prior action | Foy v. An t-Ard Chlaraitheoir & Ors [2002] IEHC 116 |
Court membership | |
Judge sitting | McKechnie J. |
Lydia Foy was born in the Republic of Ireland on 23 June 1947, with male genitalia. After marrying and fathering two children, she had sex reassignment surgery and began a 12 year legal battle to assert her identity as a woman on her birth certificate. This resulted in a declaration that the Law of the Republic of Ireland was incompatible with the European Convention on Human Rights.
Life as a man
Lydia Annice Foy of Páirc Bhríde, Athy,Co Kildare is a retired dentist. She was born in a private nursing home in the Irish Midlands[1][2], and at birth was officially registered as a male with the Christian names Donal Mark.[3] Foy was raised as a male,[4] with five brothers and one sister.[3]
From early childhood she was conscious of a feeling of ‘femininity’. This continued throughout boarding school at Clongowes Wood College from 1960 to 1965. Having obtained her Leaving Certificate, she started pre-med studies at University College Dublin, but changed to dentistry a year later. She graduated with a Bachelors degree in Dental Surgery in 1971, and began to practice as a dentist.[3]
In 1975, through a music society where she lived in Athlone,[2] she met Anne Naughton - a secretary from Clara, Co. Offaly, who was eight years her junior. They got engaged, and married at the Church of Saints Peter and Paul in Horseleap[2] on 28 September, 1977.[3] They had two children, one born on 16 August, 1978, and the other on 18 October, 1980.[3]
Sex reassignment
In the 1980s Foy began to suffer physical and psychological problems, which worsened in August and September 1989, when she suffered a total collapse. She had psychiatric counseling,[5] was diagnosed a core transsexual and was prescribed a hormone treatment. She attended two further psychiatrists in England who diagnosed her as suffering from Gender Dysphoria.[3]
Foy began a process of transitioning from male to female, with electrolysis, breast augmentation surgery, operations on her nose and Adams apple[3] and voice surgery.[5] On 25 July, 1992, she underwent full, irreversible sex reassignment surgery[3] in Brighton,[2] England. This involved the removal of the external and internal genitalia with which she was born and the surgical creation of the internal and external female genitalia.[5] The Irish Eastern Health Board paid £3,000 towards the cost of the procedure.[5]
Subsequently Foy lived entirely as a female. She had left the family home in 1990, and a judicial separation was granted on 13 December, 1991. Anne was given sole custody of the children with conditional access to Lydia, but in May 1994 the Circuit Court prohibited all access.[3]
While Foy, who legally changed her Christian names in November 1993, was able to obtain passport, driving license, medical card, and polling card in the new name, her request to amend the sex on her birth certificate was refused.[5][6]
Initial court case
Foy began legal proceedings in April 1997,[7] to challenge the refusal of the Registrar General to issue her with a new birth certificate. Unemployed, Foy was represented in the action by Free Legal Advice Centres. She sought a declaration that the practice of using biological indicators existing at the time of birth to determine sex for the purposes of registration was ultra vires (outside the powers of) the Births and Deaths Registration (Ireland) Act 1863.[6]
In an affidavit, Dr Foy said that she was, at birth, a congenitally disabled woman suffering from gender identity disorder.[6] She argued that while her birth certificate continued to assert erroneously that she was male, she would be incapable of exercising her constitutionally protected right to marry, and that nothing in the 1863 Act or in the regulations required that sex be determined by biological criteria alone.[6]
The case reached the High Court in October 2000. Foy's former wife and their daughters contested her plea, claiming that it could have an adverse effect on their succession and other rights.[1]
Judgment was reserved for nearly two years until 9 July 2002 when Mr Justice Liam McKechnie rejected Lydia Foy’s challenge. In a judgment running to over 130 pages[8][9] he stated that, based on medical and scientific evidence, Dr Foy had been born male.[1]
Second court case
Just two days after the decision against Lydia, the European Court of Human Rights in Strasbourg heard a similar case. Christine Goodwin, a British transsexual, had claimed that the UK's refusal to allow her to amend her birth certificate and to marry as a female violated the European Convention on Human Rights.[10] The Court declared that the UK Government had violated Articles 8 and 12 of the convention. [11] In response, Britain passed the Gender Recognition Act 2004, providing for legal recognition of transgendered persons in their new or acquired gender, and for the issuing of new birth certificates reflecting that gender.[7]
The Irish Supreme Court returned Foy's case to the High Court in 2005 to consider the issues raised by the European decisions.[12] On Friday, October 19 2007 the court 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. Justice Liam McKechnie said the failure of the State to provide for "meaningful recognition" of her female identity violated Foy's right to respect for private life under article 8 of the Convention,[13] and Taoiseach Bertie Ahern and Houses of the Oireachtas should consider adopting the British system.
Affect on law
Although the issues have been raised in parliamentary debate,[14][15] no ruling has been made. The declaration of incompatibility is not unconstitutional, but does place the government in a dilemma, and the need to reconcile Irish and European legislation.[16]
On 5 January 2009, Thomas Hammarberg, the Human Rights Commissioner of the Council of Europe published a viewpoint on the rights of transgender people in Europe, and mentioned the Foy case specifically. He stated that "There is no excuse for not immediately granting this community their full and unconditional human rights."[17]
See also
References
- ^ a b c "Dentist in new court battle to be called a woman - National News, Frontpage - Independent.ie". Retrieved 2009-02-27.
- ^ a b c d
Quigley, Maeve (July 14 1992). "I was so desperate to be a woman I used to wear my wife's dresses as..." Sunday Mirror. Retrieved 2009-02-27.
{{cite web}}
: Check date values in:|date=
(help) - ^ a b c d e f g h i Courts Service of Ireland. "Foy -v- An t-Ard Chláraitheoir & Ors". Retrieved 2009-02-27.
- ^ "Carlow Nationalist - 2002/07/22: Lydia's fight goes on". Retrieved 2009-02-27.
- ^ a b c d e
"Transsexual takes Court case to change birth cert (I. Examiner)". Retrieved 2009-02-27.
{{cite web}}
: Text "Press For Change" ignored (help) - ^ a b c d
"Ireland: Gender change on birth cert sought (Irish Times)". Retrieved 2009-02-27.
{{cite web}}
: Text "Press For Change" ignored (help) Cite error: The named reference "it" was defined multiple times with different content (see the help page). - ^ a b "Ireland violated transsexual's right to new birth certificate under EU law, judge rules - International Herald Tribune". Retrieved 2009-02-27.
- ^ "RTÉ News: Transsexual fails in High Court bid". Retrieved 2009-02-27.
- ^
"Foy v. An t-Ard Chlaraitheoir & Ors [[2002]] IEHC 116 (9 July 2002)". Retrieved 2009-02-27.
{{cite web}}
: URL–wikilink conflict (help) - ^ "State to appeal judgment in Foy case to Supreme Court - The Irish Times - Tue, Apr 01, 2008". Retrieved 2009-02-27.
- ^ "ECHR Portal HTML View". Retrieved 2009-02-27.
- ^ "RTÉ News: Transgender dentist continues legal fight". Retrieved 2009-02-27.
- ^ "The Irish Times - Sat, Oct 20, 2007 - Judge says State did not recognize female identity of woman". Retrieved 2009-02-27.
- ^ "Dáil Éireann - Volume 640 - 06 November, 2007 - Order of Business". Retrieved 2009-02-27.
- ^ "Dáil Éireann - Volume 647 - 19 February, 2008 - Passports Bill 2007: Report Stage". Retrieved 2009-02-27.
- ^ "Birth registration laws facing repeal after transgender ruling - National News, Frontpage - Independent.ie". Retrieved 2009-02-27.
- ^ "Thomas Hammarberg: "Discrimination against transgender persons must no longer be tolerated" / News / Europe / ilga - ILGA Europe". Retrieved 2009-02-27.