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Call for reform of sex-change legislation

Wednesday, October 1, 2008
CAROL COULTER, Legal Affairs Editor

THERE IS a need for urgent reform of Irish law relating to transgendered people, according to the Irish Human Rights Commission (IHRC).

Transgendered people are those who have had gender reassignment surgery and treatment, having being diagnosed with gender identity disorder. This is a recognised medical disorder where a person's psychological identity and physical characteristics diverge.

Under current law a transgendered person cannot have a birth certificate issued with his or her new gender, and does not have the right to marry in that identity. However, in 2008, following a High Court case, the Oireachtas enacted the Passports Act 2008 which recognised a person's right to have a passport issued in his or her new gender.

In October 2007 the High Court, in a case brought by Lydia Foy, stated that Irish law on issuing identity documents to transgendered people was incompatible with the European Convention on Human Rights (ECHR). That decision is being appealed by the State to the Supreme Court, despite enactment of the Passports Act.

The Government should set up a working group to examine the legal rights of transgendered people, according to the IHRC.

The proposal comes in a submission to the Government on protection of the rights of transgendered persons, and is being presented today. The IHRC submission does not specifically refer to the Foy case, but examines the law and jurisprudence under the ECHR.

It points out that the European Court of Human Rights has found, in a succession of cases, that laws restricting or preventing transgendered people from obtaining birth certificates or marrying in their new gender breach human rights in failing to recognise the person's new gender.

Referring to the situation in the UK, including Northern Ireland, the president of the IHRC, Dr Maurice Manning, said: "Prior to the adoption of the gender recognition act in 2004 by the British government it convened an interdepartmental working group on transsexual persons to consider the need for legislation and what form that legislation should take. This approach has much to commend itself in the Irish context."

Such a group should include representatives of the transgender community, the IHRC, the Equality Authority, civil society and the legal and other appropriate professions, he said.

He pointed out that protections currently available to transgendered people in Northern Ireland raised the issue of the equivalence of rights protections, as provided for in the Belfast Agreement.

In drafting amending legislation the Government should consider referring the draft legislation to the IHRC, as provided for in the legislation setting it up, he said.

© 2008 The Irish Times

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