European Human Rights Chief welcomes Government's transgender decision

31 August 2010

Council of Europe Human Rights Commissioner Thomas Hammarberg has welcomed the Government's decision "at long last" to recognise transgender woman Lydia Foy as a female. But he also called on the Government to include transgender representatives on its working group to draft a change in the law.

In a "Comment" circulated to all 47 member states of the Council of Europe, Commissioner Hammarberg welcomed the Government's decision to set up an inter-departmental working group to draft legislation to recognise transgender persons in their preferred gender. But the Commissioner said it was "crucial that representatives of the transgender community" and other experts in the area be represented on the group. He hoped that the proposed Irish legislation would become a model for other European states.

Mr Hammarberg said that in many European states transgender persons were still forced to divorce from their partners and undergo sterilisation before they could get recognition. He said this was a violation of their rights.

Free Legal Advice Centres (FLAC), which represented Lydia Foy in her 13 year legal battle to secure recognition as a woman, welcomed Commissioner Hammarberg's 'Comment'. FLAC supported the call for transgender representatives to be included on the working group on changing the law.

"The Government has an opportunity to bring in humane and inclusive legislation that will respect the dignity and rights of this very marginalised group of people" said Michael Farrell, Senior Solicitor with the legal rights group FLAC. "We would urge the Government to work closely with Commissioner Hammarberg's office and bring in legislation which will serve as an example of good practice to other states in the Council of Europe".

Commissioner Hammarberg's Comment in full:

Forced divorce and sterilisation - a reality for many transgender persons
Transgender persons gender identity
The rights of transgender persons are still ignored or violated, but some signs of understanding now begin to appear. One example is the outcome, at long last, of Lydia Foy's struggle in Ireland. She was registered as male at birth but has lived as a woman since 1992. This summer she finally succeeded in her battle for legal recognition by the Irish state as a woman and for a birth certificate that reflects this reality.
Most people legally defined as man or woman will experience a corresponding gender identity. Transgender persons, however, do not have such a corresponding identity and may wish to change their legal, social, and sometimes also physical status.
The case initiated by Lydia Foy in 1997 led to a High Court ruling ten years later that Ireland was in breach of the European Convention on Human Rights by not providing recognition of Dr. Foy in her preferred gender. It took the Irish government another 2.5 years to accept that Irish law is incompatible with the European Convention. In June 2010 the Irish government withdrew its appeal to the Supreme Court and will now recognise Lydia Foy as a woman.
The Irish government will introduce legislation to recognise transgender persons in their preferred gender including the possibility for them to obtain new birth certificates. An inter-departmental working group has been set up by the Irish government to develop a legal framework which respects the human rights of transgender individuals. It is crucial that representatives of the transgender community as well as other experts be represented in this working group. This could become a good model for other states which are currently considering improving their legal framework for transgender persons, including Portugal, Hungary, the Netherlands.
Still viewed as a mental disorder
Ireland is not the only country where transgender persons have faced obstacles in obtaining legal recognition of their preferred gender. Some Council of Europe member states still have no provision at all for official recognition, leaving transgender people in a legal limbo. Most member states still use medical classifications which impose the diagnosis of mental disorder on transgender persons.
Even more common are provisions which demand impossible choices, such as the "forced divorce" and the "forced sterilisation" requirements. This means that only unmarried or divorced transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register. In reality, this means that the state prescribes medical treatment for legal purposes, a requirement which clearly runs against the principles of human rights and human dignity.
Some positive legal developments can however be found. The Austrian Administrative High Court ruled in 2009 that mandatory surgery could not be a prerequisite for gender change, and in Germany the Federal Supreme Court indicated in 2005 that operative interventions as a precondition for the change of gender are no longer tenable.
Full right to physical and moral security
All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights.
In 2002, in Goodwin v UK, the Strasbourg Court's Grand Chamber stressed that in the twenty first century the rights of transgender persons should be effectively protected by states. They should have the same right to personal development and to physical and moral security enjoyed by others in society. One cannot but agree.
There is a strong need for an informed dialogue about the widespread discrimination against transgender persons in Europe today. One contribution will hopefully be a comparative study, the result of which my office will present early next year, on continued discrimination in all parts of Europe on grounds of sexual orientation and gender identity.

/END

Editors' notes:

1. FLAC (Free Legal Advice Centres) is an independent human rights organisation which works to promote equal access to justice for all. It runs a lo-call telephone information line giving general legal information to the public and it supports a network of evening FLAC clinics around Ireland where volunteer solicitors give first stop legal advice to people who need it and cannot afford legal representation.

2. The Council of Europe is an international organisation based in Strasbourg, France. Founded in 1949, it comprises 47 countries in Europe and aims to promote democracy and protect both human rights and the rule of law. Ireland is a founder member of the Council.

3. The Government set up the Gender Recognition Advisory Group in order to achieve this reform in July 2010. Submissions to the group must be made by 17 September 2010.

4. Legal background to the case of Foy vs An t-Ard Chlaraitheoir:
Lydia Foy began High Court proceedings to secure recognition of her acquired gender as a woman in 1997. In July 2002 the High Court ruled against her, saying that neither the Constitution nor Irish legislation allowed for recognition of gender change. Two days later, the European Court of Human Rights held that the UK had breached the rights of two transgender women when it refused to recognise their new gender identity.
Dr Foy had appealed to the Supreme Court but when the new ECHR Act 2003 came into force, giving the ECHR more standing in Irish law, she made another application for a new birth certificate, relying on the European Convention. When it was refused, she went back to the High Court. The case did not come to court again until April 2007.
In the meantime, almost all other European countries had granted legal recognition to transgender persons. Giving judgment in the second Foy case in October 2007, Mr Justice McKechnie said: "In this regard, Ireland as of now is very much isolated within the member states of the Council of Europe". He ruled that the lack of provision for recognising Dr Foy's new gender identity was a breach of her rights under Article 8 of the ECHR, which protects private and family life. He also made a declaration that the Irish law on this issue was incompatible with the ECHR. This was the first such declaration made under the ECHR Act, 2003.
The State appealed Judge McKechnie's decision, despite the general consensus on transgender recognition elsewhere in Europe. The Government withdrew that appeal in June last, thereby confirming and finalising the declaration of incompatibly, which has become the first declaration to be confirmed. It also set up an inter-departmental working group to advise on new legislation to provide legal recognition for transgender people.
You can read a more detailed briefing note about the case - and transgender issues and the law generally - online at http://www.flac.ie/publications/foy-case-briefing-document/