“A story of great human proportions” – Lydia Foy and the struggle for Transgender Rights in Ireland

8 June 2018

On the 8 June at our in our new building on 85/86 Dorset Street Upper, FLAC launched “A story of great human proportions” – Lydia Foy and the struggle for Transgender Rights in Ireland."

The report was officially launched by Justice Edwin Cameron, of the Constitutional Court of South Africa.  Michael Farrell, Sara Philips, Professor Donncha O'Connell, Lydia Foy and Eilis Barry also spoke at the launch. 

Speaking at the launch, Edwin Cameron stated that "We are here today to not only honour Lydia Foy, but to also honour transgender and non-binary people everywhere currently experiencing struggle."

He compared Lydia’s struggle with the movement for justice in his native South Africa. He also stressed the personal responsibility all of us have to change our attitudes in order to reflect new realities.

"I’ve found very many points of resonance between the struggle for justice in South Africa and Ireland. The road to change is long because of us. People like me who are still coming to insights along it. It’s a long process and it’s a process that starts with us."

Addressing attendees at the launch, Michael Farrell, former FLAC Senior Solicitor stressed how the case exposed serious flaws in the Irish legal system and weaknesses in Ireland’s protection of human rights, particularly under the European Convention on Human Rights.

“At its simplest, no one should have to wait 22 years for her first application of what we now recognise as a basic human right as Lydia finally did in 2015 after first applying for a birth certificate in 1993.”

If we’re serious about upholding human rights in this state, the European Convention on Human Rights Act needs to be amended to require the government to respond speedily or within a defined timeline to a decision by the court to a breach of human rights. Yet there’s been no move to amend it since Lydia’s case was settled in 2015. This shows a fundamental disrespect."

Sara Philips, chair of the Transgender Equality Network (TENI) outlined the daunting situation facing Lydia when she commenced her case;

“When Lydia began her case, there was no other trans people who were visible and willing to stand up and support her . Lydia fought this case alone, obviously with the help of FLAC but the trans community were nowhere to be seen. “

From 1993-2007, she withstood attacks on her person, in the media and on her family life. I’ve met many people throughout my life who’ve been brave and forthright but I’ve never met anyone like Lydia Foy."

Speaking at the event, Lydia Foy said that she believed that strategic litigation in the interest of human rights was still too difficult. Her experience had been “more like a criminal case than a learning curve for society”.

She added: “There should be a system where the court recognises what they’re dealing with and what the case is about before it even starts. It is an intimidating arrangement for people who are already isolated.”

Lydia said she believed that her case had resulted in “great progress” in Irish society, not just through the legislation that followed it; “looking back now, the case helped me explain being transgender to people” she added.

Also, at the launch FLAC CEO, Eilis Barry outlined FLAC's recommendations to the Review of the Gender Recognition Act saying that "16 and 17-year-olds should be able to apply for legal recognition as if they were 18 and that a legal pathway should be opened for children under 16 with the court being required to hold the best interests of the child as the paramount consideration in decision making”.

“We’ve also recommended the introduction of a third option such as ‘x’ for non-binary intersex on identity documents and that the Gender Recognition Act needs to be amended for recognition of non-binary gender identities."

She also described Lydia as "an incredibly strong, brave and resilient person who has brought a sea of change in law and how society views gender.”

 Professor Donncha O'Connell spoke about the legal impact of the Foy case:

"There has been a joyful atonement in recent years for what was done in the past. This case provides an example of judicial dialogue between the Irish judiciary and the European Court of Human Rights.”

 

                  

More about the report

The report details Lydia’s journey of complex and difficult litigation which resulted in radical reform of the law on gender recognition and fundamental change in how the State and society view gender and identity. Behind the legal challenges, there is a story of great human proportions, of courage and fortitude. This report records this remarkable story.

Michael Farrell, Donncha O’Connell, Broden Giambrone, former CEO of TENI and Lydia herself all made contributions to the report.

Michael Farrell, FLAC Senior Solicitor 2005-15: A story of great human proportions:

"Behind the legal case...there is a story of great human proportions which unfortunately this judegment..in a court of law is unable to adequately or properly recreate." -Mr Justice Liam McKechie giving judgement in the Irish High Court in the case of Lydia v an t-Ard Chláraitheor & Others, July 2002

Michael Farrell opens the report with this powerful quote. In his contribution, Michael does what Justice McKechie said a legal judgement was unable to do as he gives the full picture of the personal and legal struggles Lydia endured.

Michael's input gives a complete insight into the legal and legislative channels taken throughout the duration of the Lydia Foy case.  It charts FLAC’s decision to issue legal proceedings seeking recognition of Lydia’s gender in 1997 and gives the detail of subsequent legal actions. Michael outlines seminal events including; the case being heard in the High Court in 2000, the 2002 judgement given against Lydia, the second case in 2007, the court’s declaration of incompatibility with the ECHR, the third case in 2013 up to the publication of the gender recognition act in 2015.

Lydia Foy: Her in her own words

Lydia herself relays her own personal story in the report. She speaks about her struggles growing up in rural Ireland in the 1950s.

She speaks about the toll her struggle had on her. How the adversarial legal system made her feel like a criminal, how she had to endure a battery of unnecessary medical tests and how sensationalist media coverage ridiculed here. Despite the impediments and setbacks, Lydia writes that she believes her case resulted in great progress. She is thankful for what the case achieved and feels that it will give particular reassurance to young people. She mentions that people sometimes ask her about labels, but she says, her name is Lydia and that this case was about having an acknowledgment as an equal citizen of the state. 

Broden Giambrone, for CEO of TENI: Lydia Foy: A Hero to the Trans Community

Broden explains how there were very few visible trans people in the 1990s when Lydia embarked on her case. At the time, there was no trans organisation and the trans community was at its early stage of development. In many ways, Lydia was alone.

He details how inspired by Lydia, the Transgender Equality Network Ireland (TENI) was born in 2006 and joined Lydia in her struggle for legal recognition. In Broden’s contribution he conveys the importance for trans people of having the ability to change legal documentations.  He outlines how incorrect identification can lead to discrimination and even violence.                                                   

Lydia’s tenacity in the face of adversity makes her a hero to the trans community. Her struggle has motivated many individuals in Ireland and abroad to demand their own rights.

Donncha O’Connell, Professor of Law, NUI Galway: The legal impact of the Foy Case

The first declaration of incompatibility granted under the ECHR Act was granted by the High Court in the Lydia Foy Case.

Professor O’Connell writes that the case is interesting both substantively and procedurally. It illustrates the added-value that can be gained by invoking a provision of the ECHR upon the European Court of Human Rights had adjudicated definitely when, clearly the Irish Constitution 1937 provides inadequate rights protection for a claimant.

It is almost certainly the case argues Professor O’Connell that even allowing for delay, the Gender Recognition Act would have been passed without the declaration of incompatibility being granted in the Foy case.

He argues that a more active scrutiny by elected legislators of draft legislation for compliance with the ECHR would mean that it would not fall to individuals like Lydia Foy to draw heroically on their inner reserves to vindicate what are by any measure, basic human rights.