Foy -v- An t-Ard Chláraitheoir & Ors, [2007] IEHC 470 (2007)

Docket Number:1997 131 JR & 2006 33 SP
Party Name:Foy, An t-Ard Chláraitheoir & Ors
Judge:McKechnie J.
 
FREE EXCERPT

THE HIGH COURT

(THE FIRST SET OF PROCEEDINGS)1997 No. 131 JRBETWEENLYDIA FOYAPPLICANT ANDAN tArd-CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND

JENNIFER AND CLARE FOYNOTICE PARTIESTHE HIGH COURT

(THE SECOND SET OF PROCEEDINGS)2006 No. 33 SPIN THE MATTER OF AN APPEAL PURSUANT TO S. 60(8) OF THE CIVIL REGISTRATION ACT, 2004

BETWEENLYDIA FOYPLAINTIFF AND

AN tArd-CHLÁRAITHEOIR, IRELAND AND THE ATTORNEY GENERALDEFENDANTS

AND

ANNE FOY, JENNIFER FOY AND CLARE FOYNOTICE PARTIES

JUDGMENT delivered by Mr. Justice William McKechnie on the 19th day of October, 2007.

Introduction

1. On 9th day of July, 2002, this Court gave judgment in the first set of proceedings above listed. Therein the applicant, who is and was then a post-operative male to female transsexual, sought a finding that at birth she was born female but suffered from a congenital disability which at that time was neither identifiable nor discoverable. That disability, which is now known as Gender Dysphoria or Gender Identity Disorder, meant that although psychologically female her biological made up of chromosomes, gonads and genitalia, both internal and external, was that of a male person. Pursuant to such a finding if granted, she then sought an order, in effect correcting the original entry in the Register of Births, to record in Column 4, under the heading "Sex", the letter "F" for "female" instead of "M" for "male", and in Column 3 under the heading "Name", "Lydia Annice" instead of "Donal Mark". If however such a finding was not obtainable, she alleged that in the alternative the existing legal regime infringed her constitutional rights to privacy, dignity and equality as well as her right to marry a biological male. In support of her claim she relied, inter alia, upon case law from the European Court of Human Rights.

All of the claims so made were strongly resisted not only by the respondents but also by the notice parties who are the daughters of the applicant. In the events which occurred she was unsuccessful and this Court dismissed her cause of action.

Reference should be made to that judgment for a comprehensive outline of the background events and circumstances giving rise to her claim and the submissions made therein.

2. On 30th July, 2002, Dr. Foy filed a Notice of Appeal to the Supreme Court. By the time the appeal came on for hearing, on 8th November, 2005, there had been three significant changes in the legal landscape. Firstly, some short time after the 9th July, 2002, the European Court of Human Rights, in abandoning and indeed in reversing its declared jurisprudence up to then, unanimously held, in the case of a male-to-female post operative transsexual, that by reason of its legal regime (being one comparable to that of this jurisdiction), the United Kingdom was in breach of both articles 8 and 12 of the European Convention of Human Rights, 1950 (see the decisions in the cases of Goodwin v. United Kingdom [2002] 35 E.H.R.R. 447 ("Goodwin") and I .v. United Kingdom [2003] 40 E.H.R.R. 967 ("1")). Secondly, on 31st December, 2003, the rights contained in this International Convention ("The Convention" or "the ECHR") became part of the domestic law of this State via the enactment of the European Convention on Human Rights Act, 2003, ("The Act of 2003" or "the 2003 Act") and thirdly, a new system of Civil Registration was introduced by the Civil Registration Act, 2004, ("The Act of 2004" or "the 2004 Act"); which in the process repealed all existing primary and secondary legislation in this area.

As a result of these events the applicant wished to raise these new issues on her appeal. However since such matters were not, and could not have been, dealt with by this court in July, 2002, the Supreme Court remitted the case back so that a decision could be made at first instance on these points. Hence this second judgment in the first set of proceedings.

3. By letter dated 21st November, 2005, Mr. Michael Farrell, Solicitor wrote to An tArd-Chláraitheoir on behalf of the applicant seeking to have the "mistake" in the record of her birth corrected so as to reflect her "true and actual" female gender as well as changing her name from "Donal Mark" to "Lydia Annice". He also sought the issue of a new birth certificate reflecting these corrections in respect of his client. The case made in support of this application was then outlined and included references to the Act of 2003 and to the "Goodwin" and the "I" decisions, both of which were delivered in 2002. These cases are referred to later in this judgment, but as the lead decision was Goodwin, references to that case can be considered as including the decision in "I", as the legal principles in both are essentially indistinguishable. By way of response dated 23rd December, 2005, the first named respondent denied that there had been any "mistake" in the record of Ms. Foy's birth and accordingly refused her application. Being dissatisfied, the applicant exercised her right under s. 60(8) of the Civil Registration Act, 2004 to appeal to this Court from that decision. Hence the second set of proceedings.

4. The First Named Respondent

In the paragraph immediately following under the heading of "Background", there is set out a summary of the relevant events and circumstances pertaining to the applicant, her condition and her family. In this paragraph a brief word is said about An tArd-Chláraitheoir, whom I shall also refer to as either "The first named respondent" or "The Registrar General". The office of An tArd-Chláraitheoir was first established under and by virtue of the Marriages (Ireland) Act of 1844. The scope of this office, which originally dealt only with the registration of civil marriages, which meant all non Roman Catholic marriages, was later extended to include births and deaths by the Registration of Births and Deaths, (Ireland) Act, 1863, (the "Act of 1863" or "the 1863 Act") and to the registration of Roman Catholic Marriages by a Private Members Act - The Registration of Marriages (Ireland) Act 1863 - of the same year. As a result there was then in place, for the first time in this country's history, a complete Irish civil registration system. That system was the recipient of several pieces of amending legislation in the years which followed, including the Matrimonial Causes and Marriage Law (Ireland) Amendment Acts of 1870 and 1871 (dealing with marriages), and the Births and Deaths Registration Act, (Ireland) Act 1880 (the "Act of 1880" or "the 1880 Act") and the Regulations made thereunder (dealing with births and deaths). The system so created remained largely intact until the enactment of the Civil Registration Act, 2004 which repealed all the primary and secondary legislation which had existed up to then. Section 7 of the 2004 Act, however, continued the office of An tArd-Chláraitheoir and under s. 8 his principal functions included the maintenance of a system of registration in respect of, inter alia, births and marriages (s. 8(1)(a)). In short, for the purposes of this case, he continued to be charged with the responsibility of registering all births which occurred within this State and of registering all marriages as well.

The second named respondent is Ireland and the Attorney General.

5. Background

Commencing at para. 7 of the July, 2002 judgment, this Court set out in some detail the background circumstances of the applicant and of her family. As a result, a further recitation of these events is not necessary but a short summary is required so that the current issues can be seen in context.

The applicant was born on 23rd June, 1947, and having the external genitalia of a male was so registered with the Register of Births and Deaths and had the Christian name of "Donal Mark" assigned to him by his parents. She had five brothers and one sister. From early childhood she can recall feeling different from her brothers. Within this "difference", she was conscious of admiring members of her opposite biological sex and of having a feeling of 'femininity'. This continued right throughout primary school and secondary school which she spent as a boarder in Clongowes between 1960 and 1965. Having obtained her Leaving Certificate she started pre-med that year in UCD but changed to dentistry a year later. She graduated with the degree of Bachelor of Dental Surgery (B.D.S) in 1971. She practised as a dentist for a number of years thereafter. In 1975, she met one Anne Naughton who was some eight years her junior. They got engaged at Christmas 1976 and got married on 28th September, 1977. They have two children, Jennifer who was born on 16th August, 1978, and Clare who was born on 18th October, 1980.

6. In the early 1980s the applicant suffered a series of physical and psychological reverses which she has loosely attributed to her condition. Her psychological welfare continued to deteriorate and in August and September 1989, she suffered a total collapse. She was referred to a number of psychiatrists one of whom, a Dr. Frank O'Donoghue who specialised in psychosexual matters, diagnosed her as a "core transsexual" and commenced her on hormone treatment. She subsequently attended two further psychiatrists in England who confirmed the diagnosis of Gender Dysphoria. This is a well recognised and genuine psychiatric condition and has been so classified in several editions of the Diagnostic and Statistical Manual of Mental Disorders (DSM), including DSM - IV (published in 1994) and in the International Classification of Diseases (ICD - 10)). She underwent electrolysis, breast augmentation surgery and had operations on her nose and Adams apple. These steps were part of her overall process of gender readjustment. On 25th July, 1992, she underwent full gender reassignment surgery in England (in so far as that is possible) under Mr. Michael Royle, a Consultant Urologist. That surgery is irreversible. Since then she has lived entirely as a female person.

7. The progressive attachment to and the...

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