A dentist who underwent a sex change operation has begun a further stage of a 10-year legal battle to be registered as female at birth.
Lydia Foy has asked the High Court to rule that the failure to provide a system of birth registration that would allow her to be registered as female places the State in breach of the European Convention on Human Rights Act.
Although the European Court of Human Rights unanimously ruled five years ago in favour of two UK transgendered residents and the Irish High Court had urged the Government at that time to address the registration situation of transgendered persons, the State had done nothing since to make provisions for its transgendered citizens, Bill Shipsey SC, for Dr Foy, said.
He was opening proceedings by Dr Foy (59), of Athy, Co Kildare, who was born with male genitals and was registered at birth as a male. The action is being heard by Mr Justice Liam McKechnie and is expected to last several days.
Dr Foy, who is being represented in the action by the Free Legal Advice Centres, suffers from a syndrome known as gender identity disorder, a recognised psychiatric condition under which a person's individual sexual identity is at odds with their physical sexual indicators.
She married in 1977 and fathered two daughters. She has lived as a female since 1991 and underwent irreversible gender reassignment surgery in 1992. The marriage ended in the 1990s and in 1993 Dr Foy changed her name by deed poll.
In the High Court in July 2002, Mr Justice McKechnie refused to grant orders directing the registrar of births to describe Dr Foy as female on her birth certificate. He ruled, on the basis of his findings from medical and scientific evidence, that Dr Foy was born male with conforming biological structures.
However, the judge appealed to the legislature to keep the situation of transgendered persons under constant review and to consider meeting their needs through legislation.
Two days after his decision, the European Court of Human Rights, in the Goodwin and "I" cases, ruled that the UK's refusal to recognise officially transgendered persons and give them new birth certificates breached their rights to marry and to respect for privacy under the convention.
In 2004, the European Convention on Human Rights Act, 2003, which requires all public authorities to act in accordance with the convention, came into effect here. Dr Foy made a fresh application for a female birth certificate in light of that. That second application was also refused in late 2005 and she initiated proceedings challenging that refusal.
In these latest proceedings, Dr Foy contends the European court decisions in the Goodwin and I cases mean the High Court should hold the State, in failing to provide for her registration as female at birth, to be in breach of her rights under the convention.
She claims she is entitled to be registered as female and that this could be achieved without her daughters losing their existing birth certificates.
Yesterday, when opening the case, Mr Shipsey said the failure of the State to address the registration of transgendered citizens was compounded by the fact that the State had carried out a full review of the system of registration of births, marriages and deaths prior to enacting the Civil Registration Act, 2004.
During that review, the needs of adopted and divorced persons and those who secured decrees of nullity of marriage were addressed, but not the needs of transgendered persons, he said.
Dr Foy's former wife and two daughters are opposing Dr Foy's application and claim that, if the birth register is altered, this would have an adverse effect on their succession and other rights.
