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Opinion: 'Under 16s should be able to access gender recognition with parental consent'

FLAC has also recommended that there should be recognition for intersex and non-binary gender identities, writes Eilis Barry.

Eilis Barry CEO, FLAC

LYDIA FOY WAS born in 1947 and was registered at birth as male. From her early years she felt uncomfortable and ill at ease as a boy. As she grew up she tried to conform to a male role and eventually married and had two children. But she always knew she was female.

Lydia Foy grew increasingly unhappy and wanted to live in what to her was her true female gender. In 1992, she had gender reassignment surgery in the UK.

It was a hard and painful journey for her. She was a reluctant campaigner. By the time Lydia Foy approached FLAC in 1996 she had already had her request for a birth certificate reflecting her true gender refused by the Registrar General and a complaint to the European Commission of Human Rights in Strasbourg rejected.

Legal battle

FLAC has a long history of engaging in strategic litigation to challenge unjust laws, to increase public awareness of pressing legal needs and bringing about effective changes in the law to help marginalised and disadvantaged groups and individuals. We decided to take on Lydia’s case and represented her over a period of 20 years. We were proud to do so.

Our new report highlights the very particular difficulties faced by a trans person as a litigant in the court system when seeking to assert rights in relation to core issues of identity.

Lydia Foy describes how intimidating she found the whole process and how disempowering it made her feel. She had to go through one particular unsuccessful High Court hearing that lasted over 14 days followed by an appeal to the Supreme Court.

The case was then sent back to the High Court with another hearing lasting over 7 days. Mr Justice McKechnie held that Article 8 of the European Convention on Human Rights imposed a positive obligation on the State to provide for the recognition of Lydia Foy’s preferred gender and that it had failed to do so.

Lydia Foy had to issue a third set of High Court proceedings when the State failed to enact proper legislation before the case was finally settled.

Gender Recognition Act

Lydia Foy faced many sets backs and it is a testament to her resolve and resilience that she persisted for over 20 years in pursuing her rights.

FLAC were also involved in briefing politicians, policy makers and the Council of Europe’s Commissioner for Human Rights. There was active support from the Equality Authority and the Irish Human Rights Commission. The Transgender Equality Network Ireland (TENI) when it was set up in 2005 provided great support.

Eventually in 2015, the Oireachtas passed the Gender Recognition Act. The Act provides a process enabling trans people who are over 18 to achieve full legal recognition of their self-identified gender and allows for the acquisition of a new birth certificate that reflects this change. 

Recognising gender in Ireland

FLAC also recently made a submission to the Department of Social Protection’s review of the Gender Recognition Act 2015 with a view to making improvements for transgender young people who wish to access legal gender recognition.

It is FLAC’s view that those aged 16 and 17 should be able to access the same gender recognition process as those over 18, and those under 16 should be able to access recognition through a simplified court process with the consent of their parent or guardian with the Court being required to hold the best interests of the child as paramount. FLAC has also recommended that there should be recognition for intersex and non-binary gender identities.

Lydia’s long legal struggle to have her identity recognised is a testament to the strength of the human spirit. Because of her determination and willingness to continue in the face of the opposition of the State, trans adults in Ireland can now have their correct gender recognised in Irish law.

In September 2015, Lydia received her Gender Recognition Certificate. It was the first of its kind issued in Ireland. Indeed, by the end of 2017, 295 Gender Recognition Certificates had been granted.

Tellingly, when she received her certificate Lydia remarked “my country has finally recognised me for who I really am.”

Eilis Barry is CEO of FLAC. The report is online at https://www.flac.ie/publications/lydia-foy-and-the-struggle-for-transgender-rights/.

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About the author:

Eilis Barry  / CEO, FLAC

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