The High Court yesterday gave the Government two months in which to outline how it proposes to rectify breaches of human rights in the case of a dentist who underwent a sex-change operation and official recognition of her new female identity.
The High Court yesterday made formal declarations that certain provisions of birth registration laws here - the Civil Registration Act 2004 - violate the right of Dr Lydia Foy to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR) because they do not provide for "meaningful recognition" of her new female identity.
However, Mr Justice Liam McKechnie granted a two-month stay on the declarations - the first ever declarations of incompatibility with the ECHR issued by the Irish courts - to allow the State time to consider whether it will appeal his rulings in favour of Dr Foy to the Supreme Court.
The judge also awarded costs of the court proceedings to Dr Foy against the State.
If the State decides not to appeal, the coming into effect of the declarations in two months will place an onus on it to address the situation of trans-gendered persons urgently.
Once the formal court declarations are made, the Taoiseach has 21 days within which to go before the Dáil to outline how it is proposed to bring the State into compliance with Article 8. Dr Foy may also seek compensation.
The judge has indicated that one means of bringing the State into compliance with Article 8 would be to introduce laws similar to the Gender Recognition Act in the UK, under which a person may secure identity documents and new birth certificates reflecting their new sexual identity without their original birth or marriage certificates being affected.
Dr Foy made legal history last October when the judge indicated he was prepared to make a declaration that provisions of the Civil Registration Act 2004, dealing with the system of birth registration, were incompatible with Article 8 of the ECHR because they did not provide for "meaningful recognition" of her new female identity and thus violated her right to respect for private life under Article 8.
Mr Justice McKechnie also criticised the continuing failure of the State to enact legislation to deal with the situation of transgendered persons. The State, "for whatever reason", had decided not to act and was very much isolated within the Council of Europe states in that regard, the judge said. The court could not, "with any integrity", find that the State's failure to act was within the margin of appreciation allowed by the European Court to member states.
Gender dysphoria, the syndrome where a person's sexual identity is at odds with their physical sexual indicators, was a recognised psychiatric condition and "a living tragedy" for many people, who often had a burning desire to have their new sexuality legally recognised, the judge said.
