Ireland’s Transgender Recognition

Up until recently, transgender people in Ireland were fighting a long battle to get their rights recognised under Irish law. Foy v An t-Ard Chláraitheoir (No. 2) was the seminal Irish case in this regard. Dr Lydia Foy was a transgender woman who had gone through gender reassignment surgery and then sought a new birth certificate which recognised her as a female. On her first application to the Irish court- Foy v An t-Ard Chláraitheoir (No. 1), it was held that the state weren’t violating Ms. Foy’s Constitutional rights by not recognising the gender she identified as.

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Dr Lydia Foy Image: Sinn Féin Flickr – https://www.flickr.com/photos/sinnfeinire land/19278800941/in/photostream/

However, 2 days after that judgment, the UK case of Goodwin v UK came before the Strasbourg court. In Goodwin, the ECtHR (European Court of Human Rights) recognised that Art 8 of the ECHR (European Convention on Human Rights), which protects the right to private life, protects the right for a person to establish their own identity as a human. By the time Foy (No. 2) came before the Hight Court, the ECHR was incorporated into our law. McKechnie J relied on ECtHR cases and recognised that the Goodwin decision cemented the position of transgender people under the ECHR. He noted that Irish law was in contravention of Article 8 of the  ECHR as it did not recognise the rights of transgender individuals. McKechnie J therefore granted the first ever declaration of incompatibility with the ECHR under s.5 of the ECHR Act 2003. The Gender Recognition Advisory Group proposed that legislation should be amended to recognise transgender peoples rights. However, there was a substantial delay before there was any progress on this and the Irish State was subject to criticism from the likes of the Council of Europe’s Commissioner for Human Rights.

Finally, the Gender Recognition Act 2015 was passed on 15th July 2015. This Act allows transgender people legal recognition of the gender they identify as (without requiring they undergo gender reassignment surgery) and under the Act, they can request a new birth certificate which reflects this. The Act applies to people 18+, although 16 & 17 years old can obtain legal recognition but must go through a more rigorous process.

Dr Lydia Foy was the first transgender person to be recognised under the 2015 Act. Since the enactment of the  Act, many transgender people have been legally granted recognition in Ireland. The legal recognition of transgender people in Ireland has also proven to be a stepping stone for social acceptance, for people who are often marginalized. Recently, we have seen the likes of Girl Guides Ireland stating that they have amended their policy to welcome transgender girls.

Whilst Ireland is undoubtedly moving in the right direction, only time will tell on this issue as unfortunately, no legislation is watertight.

Featured Image: Stock Image – Unsplash https://unsplash.com/collections/554131/hyper-gender?photo=aht9I6SOu2A

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Trump’s ‘Travel Ban’ & its infringement on Human Rights

It is a reasonable assumption that you are all relatively familiar with the Executive Order which was invoked by Donald Trump on 27th January. This was heavily reported by the media as being a ‘Travel Ban’ but was also branded an “Anti-Muslim Ban”.

In essence, the Order prevented immigration & temporarily barred people from entering the U.S from the following countries:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

These 7 countries are predominantly Muslim and this caused worldwide outrage.

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Of course, the ban was then blocked and the 9th Circuit Court of Appeal in San Francisco have since refused to reinstate it. It is important to note however that this doesn’t necessarily render the ban unconstitutional and undoubtedly there will be more to follow on this point as the legality of the ban is further examined. Those opposed to the ban felt it was repugnant to the 1st amendment of the U.S Constitution which was 1 of 10 amendments to the Bill of Rights on 15th December 1791.

The Immigration & Nationality Act was passed in the U.S in 1965. This set out that one can’t be “discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence“. Given that the 7 aforementioned countries were all predominantly Muslim, this resulted in the ban being dubbed an “Anti-Muslim” ban by critics and that it was a violation of the 1965 Act.

Zeid Ra’ad al Hussein, the United Nations rights chief said of the ban:

“Discrimination on nationality alone is forbidden under human rights law”

 

Under the United Nations Refugee Convention, the U.S is obliged to provide safety and protection to those facing persecution. In denying such people admission, the U.S was presumably flouting this duty.

Ireland & Preclerance

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Stock Image – Unsplash

Had the ban remained in place, there was also a possible human rights issue relating to preclearance in Irish airports.

The Aviation (preclearance) Act 2009 gives effect to the Preclearance agreement between the U.S and Ireland in 2008. This act means that preclearance in carried out in both Dublin & Shannon airports, which of course are Irish airports, and also the only European airports to have preclearance facilities for the U.S.

Preclearance areas are governed by Irish law however, and must be conducted in accordance with the Constitution and the European Convention on Human Rights (ECHR).

Fiona de Londras, in a blog post, raised an issue in relation to the effect Trump’s Executive Order would have had on discrimination on Irish soil. It is worth browsing humanrights.ie generally on the topic. De Londras noted that if someone was turned away at preclearance, they must be treated in accordance with Irish law and therefore any Irish officials involved must act in a way that is not in contravention with either the Irish Constitution or the ECHR. The State is required to ensure Constitutional rights and right under the ECHR are protected in such preclearance areas. Had the travel ban remained in place, we my have seen breaches of such rights become very topical.

Given that deportation is still a hot topic in the U.S, what do you think will happen next? Will a similar but more ‘thought-out’ ban be put in place?

Featured Image:  Stock Image – Unsplash

 

 

 

 

What are Human Rights?

It is important to have a basic understanding of Human Rights before engaging with this blog. Many of you will be very familiar with the concept but for those who are less familiar, hopefully this post will give you clarity.

Human Rights are difficult to define, but it is the belief of many that Human Rights derive from the natural law i.e, they are inherent in a person by virtue of the human personality.

If we analyse both words separately: ‘human’ and ‘rights’, we can deduce that human rights denote rights which are fundamental to every person. All rights are seen as being of equal importance and they must be protected by our legal system.

The United Nations Office of the High Commissioner for Human Rights definition is commonly cited. It set out that Human rights were:

‘basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status’.

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European Court of Human Rights, Strasbourg                                                            Image – Pixabay

Human Rights are now protected by our national and international legal systems. In Ireland, they are protected in the 1937 Constitution of Ireland. They are also heavily protected by the European Convention on Human Rights (ECHR). The ECHR is fundamental to the case law we will be addressing on this blog. However, there remains a noticeable lack of a definition of the concept of Human Rights.

In my next post I will be addressing the Human Rights issues that surrounded President Trumps ‘travel ban’ in the U.S.A. Make sure to follow the blog so you don’t miss a thing!