[T]he Oireachtas must be mindful not to rush into producing a knee-jerk, reactionary piece of legislation….it is important to remember that the law in Ireland regarding gender recognition is no worse today than it was before the Foy judgment was handed down. Although it is clear that something must be done to ensure the vindication of the rights of transsexual persons this does not have to happen within the next month. Such persons would be better served by our legislators taking time to consider properly the issues raised by the Foy case. It is not sufficient simply to “copy and paste” the [UK] Gender Recognition Act into Irish law.
In the original action her claim was unsuccessful, however the European Court of Human Rights handed down the Goodwin v United Kingdom decision only two days later and, as a result, the High Court was to rehear the case taking the ECHR into account (as the 2003 Act requires). On this basis the High Court last Friday found that although Irish law was not unconstitutional and although Lydia Foy was not entitled to an altered birth certificate under Irish law, this position was clearly incompatible with the Convention and therefore a Declaration of Incompatibility would be appropriate. The Court gave counsel three weeks to consider the judgment (which does not yet appear to be online) and once the Declaration is issued the DÃ¡il (lower house of parliament) will be required to consider it within 21 days.
This case and the repercussions of the Declaration of Incompatibility are exceptionally important developments in Irish law. First of all, from the perspective of those interested in the real impact that the Convention will have now that it has been incorporated (Ireland is a dualist state under Article 29 of the Constitution) it affords the opportunity to see whether the legislature will in fact respond to the political imperative to legislate for the recognition of the realigned gender of transpersons â€“ it has no domestic legal obligation to do so. From a gender perspective the decision is also important. Irish law has traditionally been strongly gender-structured emanating from a gendered Constitution that includes a provision in Article 41.2 to the effect that â€œIn particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achievedâ€. Legislating positively in the context of transpersons may well introduce a much needed realignment of gender notions in Irish law â€“ or at least force a (hopefully informed and balanced) debate on the lawâ€™s reliance on gender as a classification and the complexities of gender that simple â€˜assignment at birthâ€™ policies tend to obscure.
Later this week Tanya nÃ Mhuirthile, a PhD candidate at the CCJHR whose research focuses on the legal implications of intersexuality, will guest blog a post on Foy and on the implications of this case for Irish law and policy on gender identity.