A Change Will Do You Good: The Evolving Position of Transsexuals under Irish & European Convention Law

Author:Roderic O'Gorman
Position:Senior Sophister Law, Trinity College, Dublin
Pages:41-61
A
CHANGE
WILL
Do You
GOOD:
THE
EVOLVING
POSITION
OF
TRANSSEXUALS
UNDER
IRISH
&
EUROPEAN
CONVENTION
LAW
RODERIC O'GORMAN*
Could
I
immediately
say
that
prior
to
the
start
of
this action,
my
knowledge
and
therefore
my
understanding
of
transsexualism
was,
as
I
now
know,
utterly
uninformative.
I
suspect,
and
hopefully
not
unfairly so,
that
many
members
of
the
general
public
who
otherwise
are
educated,
knowledgeable
and
thoughtful
are
in
a
similar
situation.'
There
can be little
doubt
that
the above
words
of
McKechnie
J.
accurately
describe the
state
of
knowledge
of
the
general populace
on the
issue
of
transsexualism.
The
very
concept
of
sex
change
is
enough
to
bring
sniggers
and
disparaging
comments
to
conversations.
While
the
bounds
of
what the
public will accept
as
'normal'
in
relation
to
gender
are
progressing
(take
for
instance
the
Hayley
Cropper
storyline
in
Coronation
Street,
or
Dana
International's
Eurovision
victory)
it
is
impossible
to
appreciate
the
difficulties
faced
by
those
who suffer
from
this
condition.
Yet
the
considerable
body
of
case
law
that
deals with
issues surrounding
transsexuals
show
that for
a
small
number
of
people,
the
issues
are
very
real
and
pressing.
The
wide range
of
discrimination
suffered
by
transsexuals
has
led
some
to
seek
relief
in
the
courts. We
shall
see
that
until
recently,
in
the
jurisdictions
covered
in
this
article,
this
forum
provided
them with
little
comfort.
In
Foy
v.
An
t-Ard
Chlaraitheoir,
2
such
a
case
came
before
the
High
Court;
a
post-operative male
to
female
transsexual sought
relief
on
a
number
of
grounds. In
rejecting
the
claim,
McKechnie
J.
was
following
precedents
of
the
English courts
and also those
of
the
European
Court
of
.
Senior
Sophister
Law,
Trinity College, Dublin. I
would
like
to
thank
James Wishart, Des
Ryan
and
David
Fennelly for
their
suggestions and comments
on
earlier
drafts. All
errors
and
omissions remain
my own.
1
Foy
v.
An
tArd-Chldraitheoir,
Unreported,
High
Court,
9
July 2002,
McKechnie
J.,
at
4
(Hereinafter
Foy).
2
bid.
©
2004
Roderic
O'Gorman
and Dublin University
Law
Society
Trinity College
Law
Review
Human
Rights
(hereinafter
ECtHR),
which
has
dealt with
a
number
of
cases
concerning
transsexuals
in
the
last twenty years.
However,
in
the
days
following
McKechnie
J.'s
ruling, the
ECtHR,
in
a
joint
decision
on
the
cases
Goodwin
v.
United
Kingdom
3
and
I
v.
United
Kingdom,
4
radically
changed
its
position
in
relation
to
the
rights
of
transsexuals.
The
purpose
of
this
article
is
to
discuss
the
ruling
of
McKechnie
J.
in
the
Foy
case
and
examine
the
merits
of
the
decision.
The
judgment
of
the
ECtHR
in
Goodwin
and
I
will
be
considered
and
the
methods used
in the
two
jurisdictions
contrasted
as
to
which
best
vindicates
the
rights
of
transsexuals.
Finally,
a
brief
analysis
of
the
forthcoming
appeal
of
the
Foy
decision
to the
Supreme
Court
will
be
undertaken
and
suggestions
proffered
as
to
how
the
Court
should
proceed
in
order
to
best
secure
the
rights
of
transsexuals.
In
doing
so,
particular
emphasis
will
be
laid
on
how
the
recent
incorporation
of
the
European
Convention
on
Human
Rights
(ECHR)
into domestic
law will affect
the
decision.
The
Foy
Case
Dr. Lydia
Foy,
a
post-operative
male
to
female
transsexual,
took
legal
proceedings
following
the
refusal
of
the
Registrar
of
Births
to
amend
her
birth
certificate
to
reflect
her acquired
gender.
The
challenge proceeded
on
two fronts. The
first
was
by
way
of
judicial
review
proceedings
against the
Registrar
General.
As
an
alternative
to
this ground,
the
applicant
sought
a
declaration
that
the
Registration
of
Births
and
Deaths
(Ireland)
Act,
1863,
was
unconstitutional,
claiming
it
violated
inter
alia,
her
rights
to
privacy,
dignity, equality
and
marriage.
Due
to
the
significant
impact
that
a
finding
in
favour
of
Dr.
Foy
could
have
on
their constitutional
rights,
the
applicants'
two daughters
were
joined
as
notice
parties
to
the
case.
5
Submissions
on
the
judicial
review
claim
Dr.
Foy's
first
ground
of
attack
was
on
the
refusal
of
the Registrar
General
to
alter
the
name
and
sex
entries
in
her
6 original birth certificate.
Dr. Foy
sought,
by
judicial
review,
an
order
of
certiorari
quashing
this
decision,
along
with
an
order
of
mandamus
compelling
the
Registrar
General
to
Christine
Goodwin
v.
The
United
Kingdom
(2002)
35
EHRR
447,
(Hereinafter
Goodwin).
41
v.
The
United
Kingdom,
(2003)
36
EHRR
53,
(Hereinafter 1).
Mrs.
Foy
also applied
to
be
joined
as
a notice
party, but
failed
to
obtain
legal
aid.
6
Following
the
approach
taken
by
McKechnie
J.
in
the
High
Court,
in this article
Dr.
Foy and
all
other
transsexual
applicants
will
be
referred
to in
their acquired
sex
at all
times
practicable.
[Vol.
7

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