She, He or It

In 1997, Dr Lydia Foy an Irish dentist, at that time unemployed, registered as male on her birth certificate, applied to the courts in Ireland represented by FLAC (Free Legal Aid Centres) for the right to alter her birth certificate to reflect her gender of choice. She had been married with two children. She had separated in 1991 and in 1992 she underwent gender reassignment surgery in England, such surgery not being available in Ireland. My understanding is that this surgery is still not available in Ireland but interestingly the Eastern Health Board (as it was at the time) contributed money to the surgery. At the time of her application, Dr Foy had changed her name legally and her passport, driving license, medical and polling card all reflected her new name but not her birth certificate. After her marital separation Lydia was granted conditional access to her children at first, however, in 1994 the Irish Circuit Court prohibited all access. I have no idea why the Circuit Court arrived at that decision but I can make an educated guess. One can only imagine the suffering, confusion and embarrassment all this must have caused on every side of the equation. Recently, I listened to a transgendered woman being interviewed on the radio as I drove into work and she said that she was pleased that her ex wife at the time that she was undergoing gender reassignment surgery kept their daughter away from her because it meant that her daughter did not have to deal with all that stuff at that period and equally, she did not have to cope with her daughter’s confusion and possible pain when she had so much on her plate at that time. Much later she made contact with her daughter through a happy accident and discovered a wonderfully broad minded girl with whom she now has a great connection. I do not know how things worked out for Lydia Foy in that regard but I can hope. I know that at the time of her application to the court, the barrister representing her wife and children who contested the application when it came on for hearing in 2000, was a chum of mine, and from what I heard the children were very angry and confused about the whole business. After reserving judgement for nearly 2 years which must have greatly added to the suffering, the High Court eventually handed down a decision rejecting Dr Foy’s challenge. Then by a twist of fate, 2 days after the decision, The European Court of Human Rights (ECHR) handed down a decision in the matter of Christine Goodwin v UK, who was a British transsexual, that her rights were violated under articles 8 and 12 of the Convention. In 1970 in the High Court in London after 7 years of marriage, Arthur Corbett, a member of the British aristocracy, filed to have his marriage to April Ashley declared invalid on the grounds of Ashley’s sex. She was a male to female transsexual, a society hostess and a model for Vogue. Corbett was well aware of Ashley’s background and had been at the time of the marriage. She had been “outed” as a transsexual by either, The News of the World or the Sunday People (the morals of those particular rags are consistent at any rate) depending on which report you read, in 1961. The Judge ruled that the key criteria for deciding sex were chromosomes and internal or external sex organs. He ignored psychological factors or the effects of gender reassignment surgery and stated the essential role of the female in marriage was to have children. He went on to declare the marriage void. This decision guided Britain until 2004 when after the Christine Goodwin case in the European Court, the Gender Recognition Act 2004 in the UK was passed. Ironically, April Ashley applied in 2005 and was finally given a Birth Certificate showing her female name and gender. The Goodwin decision opened the door for the Foy case to be reviewed by the Irish courts. In 2005 it was back before the High Court who ruled in favour of Dr Foy finding that the Irish State was in breach of its obligations under the European Convention on Human Rights in its failure to provide recognition of the acquired gender of transgendered persons. Initially the State appealed the decision but subsequently withdrew the appeal and the way was then open for the State to deal with this matter in a proper manner. For Lydia Foy this had been a 13 year battle through the courts but an ongoing battle in that legislation has yet to be enacted and while progress has been made there is still a way to go.
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)