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.
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.
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