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“OUR IDENTITY IS a fundamental part of who we are – whether it’s your nationality, your race, your religion, or your gender.” – Sara Phillips, TENI.
Irish transgender woman Lydia Foy spent 20 years of her life involved in a difficult and complex litigation to have her gender legally recognised in the Irish State.
Her battle has since resulted in a radical reform of the law on gender recognition – the Gender Recognition Act.
Flac (Free Legal Advice Centres) has produced a comprehensive history of Foy’s right for justice – ‘A story of great human proportions’: Lydia Foy and the struggle for transgender rights in Ireland.
Foy was born in Westmeath in 1947 and was registered male at birth. In 1992, she had gender reassignment surgery in the UK and from then on she has lived as a woman.
The legal battles
As Teni details in its timeline of Foy’s story, and as is detailed in the new report, in March 1993, Foy’s legal battles began when she applied to the office of the Registrar General for a new birth certificate to accurately reflect her correct gender.
In 1997, Foy began High Court proceedings, with the help of Flac, to request that the Registrar provide her with a new birth certificate.
The case was heard in the High Court before Justice Liam McKechnie in 2002. On 9 July 2002, Foy’s request was rejected and Kechnie stated there was no authority under the Registration Acts to change the gender registered at birth except for purely clerical errors.
McKechnie called on the government to take urgent action to assist transgender people.
Foy then appealed to the Supreme Court. However, before the appeal was heard, the European Convention on Human Rights Act 2003 was enacted. The report outlines that the Act required public bodies to carry out their functions, as far as possible, in compliance with the ECHR and required the courts to interpret legislation, also as far as possible, in line with it also.
Because of this, and as noted in the TENI timeline, Foy made a new application to the Registrar General in November 2005, citing the obligation under the Act to comply with the requirements of the European Convention.
The Registrar General refused her case again under grounds that he had no power under the Registration Act to do what was requested. Foy again began a new High Court case, seeking a declaration under the ECHR Act that Irish legislation was not compatible with the European Convention in relation to the registration and issue of birth certificates.
In 2007, Foy returned to the High Court and Justice McKechnie again heard her case. As noted in the report, Judge McKechnie repeated that there was nothing in Irish law on the Constitution that would require or allow for Foy’s birth record to be amended or to allow for a new birth certificate.
Recent progress
In May 2010, the government set up the Gender Recognition Advisory Group (GRAG) to advise on the legislation to recognise transgender people as their preferred gender.
Flac (having taken on Foy’s case), the Transgender Equality Network Ireland (TENI) and other bodies made recommendations to the group. In July 2011, the group published its recommendations and proposed gender recognition legislation, the TENI timeline and report outline.
In January 2013, Foy issued new proceedings in the High Court, seeking a declaration that the Irish government was under a legal duty to make provision for issuing her with a new birth certificate. She also sought damages for the continued breach of her rights following the High Court decision in 2007.
The case was settled in November 2014.
The Gender Recognition Act was passed on 15 July 2015. It meant that a person can apply for a Gender Recognition Certificate to the Department of Social Protection in order to have their preferred gender recognised by the State.
In November 2017, Minister Regina Doherty appointed a review group chaired by Moninne Griffith (executive director of BeLonG To) which includes members from TENI, Flac, other independent experts in the field and government bodies.
The group has said it will review the following areas:
It will submit its report to the Minister in May this year.
‘Thank you’
Speaking at the launch of Flac’s report, and addressing the impact Lydia Foy has had on transgender rights in Ireland, chairperson of TENI Sara Phillips thanked Flac and Foy.
“Without this case, without her struggle and without her unyielding and forthright commitment to make sure she kept going, I think the trans community wouldn’t be where they are today,” Phillips said.
“As we step forward, the trans community, from the shadows, with pride now, we can be confident that there are allies who will support and stand behind us within that struggle.
So, let’s be clear, there is still a need to ensure that the social causes and heroes like Lydia are documented and remembered.
“For the trans community, we must pledge for keeping this story alive in the minds of everyone, in the minds of society, but also in the minds of our own community.”
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It really is a futile gesture to change a birth certificate to reflect anything that happens later. Yes, you should be allowed to identify whatever way you wish, but your historical record should never be tampered with. Surely Ms Foy’s life is completely defined by the fact that she was born male, and will die male, but society has progressed that we don’t care that she identified as a women and provides her passports, recognition certs and haven’t prevented her from living life in the opposite sex.
@Gulliver Foyle:
I would have to agree that an existing birth cert is a historical document and should not be changed. She was determined as female at birth, and that’s what the document says. Removing the requirement to record the determined gender from the birth cert would solve the problem for the future. In the meantime, the Gender Recognition Certificate determines her “official” gender.
I don’t know why you think she “will die male”
@CrabaRev: typo *She was determined as male at birth
@CrabaRev: ‘Determined as female at birth” but fathered 2 children and now also has grandchildren.
@Cheryl Mellett: Typo. I corrected it above. Are you implying because she fathered children that she should not be allowed to change her gender?
@Dermot Dinan: Yes. Gender is “determined” at birth. Google “gender assignment”. Or “s.e.x assignment” (obviously without the dots) The journal won’t allow me to post the links for some strange reason
@CrabaRev: I don’t know how you have come to the conclusion that I am implying anything of the sort?
@CrabaRev: What a crazy mixed up world we live in .
@CrabaRev: just to clarify that last point, it’s that the genetics that determine she was born male are still there when she dies, like everyone else, and are a part of her identity. The certificates and recognition for self affirmation are only valuable in life, and if they dig up my bones and her bones in 10,000 years, they will both be male.
@Gulliver Foyle: agree completely. By all accounts do & identify as whatever is your true persona, but tampering with ones birth certs is not an accurate or appropriate step forward in this issue.
Does this not have huge implications for the future for say, adoption and the like. How will someone be able to find their birth mother if she has changed to a he in the birth cert… Please don’t just assume im being intolerant, I am genuinely concerned about how this will people going forward. I think it’s wrong to change the birth certificate. How can we hope to be able to trace our family records back of there are false birth certs in the past…?
Gender is not a social construct. Your gender is determined by your chromosomes, XX and XY. What’s with all the pseudo science that’s spreading around this issue? Facts matter. I’m perfectly happy for a man, who wants to be a woman, to dress like a woman and get any surgery they like. Everyone has the right to control their body.
@Daniel Donovan: We must also note that as things stand it is impossible to change your gender as you can’t alter your genetic makeup in such a way. I’m more than happy to call someone who wants to be called a female name such but under no circumstances must this be unforced by law, especially given the scientific premise which I stated. As an atheist I value science and its contribution to our development but if we’re going to allow ourselves to get wrapped in nonsense like this, we will do nothing but regress.
@Daniel Donovan: What about people who have a different set of chromosomes than XX and XY, maybe you should educate yourself before talking about gender in absolutes
@Larissa Caroline Nikolaus: These people are intersex and an make up less than 1% of the population. Transgender people do not fall under this category and share no comparison.
@Daniel Donovan: Correction 1.7% of the population.
@Daniel Donovan: Out of curiosity, Daniel, what education have you undertaken in this area and what qualifications do you now possess?
@Daniel Donovan: as I posted earlier in this article, gender assignment is not an exact science, there are some links in that post if you wish for more information. . While gender assignment is not completely a social construct, there are so many artificial social constructs around gender that the argument is valid. Why do we distinguish children by dividing them into boy/girl? Why do children wear different clothes based on their gender? Why do we segregate learning based on gender? Why do we have different toys based on gender. Why do we have different names based on gender e.g. Paul/ Paula. Gender is in all practical terms a social construct.
@CrabaRev: I agree with most of what you said. Well language is certainly a social construct, hence divisions based on gender in language.
@Daniel Donovan: The journal removed the links I posted. Google “gender assignment” or use the more common three letter word for gender, that the journal has determined is too rude to post :)
@Daniel Donovan: So, without any qualifications or experience in this area you wish to proceed in making pronouncements about gender and sexual identification that directly impacts some people but has no impact on you, including spreading false information that directly contradicts those who are actually qualified in this area.
@Brian Ó Dálaigh: What information I have provided is false Brian?
Whilst I am sympathetic to the plight if any transgender person in this particular case I feel the individuals priorities were misplaced. There was no consideration for his children who were teenagers when the media circus started. When you become a parent your number 1 priority should be your children but there seemed to be zero consideration for them in this case.
@mike scott: part of the problem with all this gender stuff is the lack of agreement as to whether we are discussing biological sex or a characteristic – we obviously have masculine females and feminine males (which one could class as gender, I guess) – but you still have an X or y chromosome at the end of the sequence.
If they carry on the way they’ve been ..there’ll be no point in having a comment section at all ..
My understanding is that sex and gender are different things. Birth certificates record sex which is usually (but not always) easy to determine from genitalia. A person’s gender usually (but not always) corresponds to their sex (i.e. most males identify as men, most females as women).
Changing a birth certificate seems to me to be tampering with historical medical data. I’m not sure why it is necessary or advisable. Ms Foyle not only changed her appearance but also her name. Has her birth certificate been altered to reflect that?
I’d appreciate someone more woke than I am explaining where I’m going wrong (while recognising their right to merely tell me to Google it).
Congrats to Lydia Foy .. hero
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