The High Court has declared that Ireland’s failure to provide a way for Lydia Foy to obtain legal recognition of her reassigned gender breached her right to respect for private life under Article 8 of the European Convention on Human Rights.
In a judgment delivered on 19 October 2007, Mr Justice William McKechnie made a declaration of incompatibility under section 5 of the European Convention on Human Rights Act 2003. He said the declaration concerned the Civil Registration Act 2004 provisions governing correction of birth-register entries. The declaration does not invalidate or suspend those provisions. The court left it to the Oireachtas to choose how to remedy the breach.
Foy brought two sets of proceedings. The first was remitted to the High Court after the Supreme Court returned it for consideration of developments including the European Court of Human Rights’ 2002 ruling in Goodwin v United Kingdom and the 2003 Act. The second was an appeal under section 60(8) of the 2004 Act against the Registrar General’s refusal of a new application made in 2005.
Foy sought recognition of her female gender and chosen name, Lydia Annice, following gender reassignment surgery in 1992. The Registrar General refused to change the birth entry, maintaining that it correctly recorded the details at birth and that the statutory correction powers did not cover her request. The High Court held that the earlier court’s factual findings remained binding: it had found that the birth entry was not mistaken under the registration law then in force. The judge also rejected the argument that the 2004 Act could be interpreted to authorise the requested change, saying that would require a fundamental alteration of the statutory scheme.
The court dismissed Foy’s constitutional challenge, finding no basis to depart from the conclusions reached in the 2002 judgment. It made no finding on her Article 12 right to marry: Foy remained married, and her divorce proceedings had not been determined. The judge said he would have considered Goodwin’s reasoning under Article 12 compelling if the issue had been available for decision. He also found no separate issue under Article 14.
The declaration addressed the State’s Article 8 obligations and the absence of a means to recognise Foy’s acquired gender. The judgment did not order the Registrar General to amend the register or issue a new birth certificate. It left the means of recognition, including how to account for the rights of affected third parties, to the legislature.