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Column: Why is the government delaying a law to recognise transgender people?

Ireland is in clear defiance of a High Court judgment that said the law on transgender people has to change, writes Michael Farrell.

Image: Sasko Lazarov/Photocall Ireland

ON 14 JULY last year Social Protection Minister Joan Burton launched a report on legally recognising transgender persons. The Minister said gender recognition legislation would be given high priority.  A year later the Government has not produced even the heads of a Bill on this issue.

Ireland is now in clear defiance of a High Court judgment that said the law on transgender persons was in breach of the European Convention on Human Rights. And this country is now one of only a tiny handful of European states that still do not recognise transgender people.

It is now just over 15 years since transgender woman Lydia Foy began a legal action to get a new birth certificate as a woman. Ten years later the High Court ruled in her favour, using a new statute that brought the European Convention on Human Rights into Irish law.

Judge Liam McKechnie, later promoted to the Supreme Court, ruled that Ms Foy’s rights under the European Human Rights Convention had been breached and granted the first ever declaration that Irish law on this issue was incompatible with the Convention. The Government appealed but dropped their appeal three years later and accepted that the law had to be changed.

They set up a Gender Recognition Group to advise on draft legislation. It took a year to report – the report that was launched last year. And in a recent parliamentary answer the Minister said she could not yet indicate when legislation was likely to be introduced.

This has all been deeply distressing to Lydia Foy, who has struggled so long for legal recognition and has had her hopes raised and dashed again several times in the five years since the High Court ruled in her favour in 2007. It is also distressing for the few hundred transgender people in Ireland, who felt that at last they were about to be accepted by society and would be able to live without the constant fear of embarrassment or worse whenever they were asked to produce their birth certificates.

Is this about marriage?

The Government’s failure to deliver on this issue threatens to undermine the European Convention on Human Rights Act of 2003, which was enacted to make the Human Rights Convention more accessible to people whose rights were being denied. When the High Court issued a declaration of incompatibility, that was supposed to trigger a process whereby the Government would change the law. But if the Government fails to respond to the first declaration of incompatibility to be made, the public can have little confidence in the effectiveness of this new procedure.

It has been suggested that the delay in bringing in new legislation is due to concern that if the State recognises transgender persons who are already married it would amount to recognising same sex marriages. The Gender Recognition Advisory Group proposed that married transgender persons should be required to divorce before they could be recognised in their acquired gender.

It is hard to take this seriously. The number of people involved is tiny. To force them to divorce if they do not want to would be contrary to the law, which requires that a marriage must have irretrievably broken down before a divorce can be granted. Any such provision, if enacted, would be immediately challenged. And same sex marriage is likely to become law within a few years anyway.

Lydia Foy has waited 15 years for justice for what the Government itself accepts is a violation of her rights. If legislation to remedy this situation is not introduced without delay, she will have no option but to take further legal action to vindicate her rights. It should not have to be that way. The Government should introduce legislation forthwith. They will have to do it eventually anyway.

Michael Farrell is the senior solicitor with Free Legal Advice Centres, which has represented Lydia Foy throughout her long legal battle.

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