Michael Farrell is the Senior Solicitor with FLAC and represented Dr Lydia Foy in her litigation against the Irish Government culminating in the passing of the Gender Recognition Act 2015.
The signing of the Gender Recognition Act 2015 by President Michael D Higgins on 22 July marked a huge step forward for the transgender community in Ireland. It also confirmed the importance of the European Convention on Human Rights Act, 2003 (‘ECHR Act’), without which it would not have happened. The ECHR Act brought the provisions of the European Convention on Human Rights (the ‘Convention’) into Irish domestic law. The litigation exposed serious flaws with the ECHR Act that need to be remedied if it is to be an effective tool for vindicating peoples’ rights.
The Gender Recognition Act, which will, for the first time, allow transgender people to be legally recognised in their true gender, was the result of a long drawn out legal battle by Dr Lydia Foy that began in March 1997. That litigation was very effectively supported in its later stages by Transgender Equality Network Ireland (TENI) and other Trans and LGBT organisations. But the legal struggle would not have succeeded without the ECHR Act which brought the European Convention into Irish domestic law.
Dr Lydia Foy’s first legal case had been expertly argued in the High Court in 2000 and evidence had been called from leading transgender experts from the UK and the Netherlands. But when the court gave its verdict in July 2002, it held that there was nothing in Irish legislation or the Constitution that would enable Dr Foy to get a new birth certificate in her female gender.
Two days after that High Court decision, the European Court of Human Rights held that the UK was in breach of the Convention because of its failure to recognise transgender persons. This led to the adoption of Gender Recognition legislation in the UK. A year later the ECHR Act was passed, requiring public bodies in Ireland to comply with the Convention.
Following a further refusal by the Registrar General to issue Dr Foy with a new birth certificate and in light of the legal developments from Europe and enactment of the new ECHR Act a second set of proceedings were taken in 2005.
Giving his judgement in 2007 Mr Justice McKechnie said nothing had changed so far as the law on registration was concerned and there was still nothing in the Constitution that would warrant overturning the Registrar’s decision. He accepted the ruling by the Strasbourg Court but the ECHR Act did not enable him to strike down the domestic law or order the Registrar to issue a new birth certificate.
Mr Justice McKechnie did avail of a mechanism under the ECHR Act to issue a Declaration of Incompatibility with the Convention, however the ECHR Act went on to provide the Declaration would ”not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made”. As such despite the Declaration, Dr Lydia Foy was still unable to get a new birth certificate. There had been no effective remedy.
The mechanism had been adopted from a similar provision from the earlier UK Act but importantly the UK legislation also contained a ‘fast-track’ procedure whereby a government Minister could amend the offending legislation to bring it into line with the Convention. And by using this procedure, or simply expediting amending legislation, the UK has acted to change the law in 18 out of the 19 cases where Declarations of Incompatibility have been made and finalised under the Human Rights Act. The ECHR Act does not contain any ‘fast-track’ mechanism.
Judge McKechnie clearly thought that the issuing of the Declaration would, by itself, be enough to lead to a change in the law. He said in his judgment in the Foy case that “[A] constitutional court ... can have a reasonable expectation that the other branches of government ... would not ignore the importance or significance of the making of such a declaration”. Unfortunately, he was a little over optimistic.
The Government set up a committee of civil servants to consider amending the law but when no draft legislation had been published by Janaury 2013, five years after the Declaration had been made, Dr Lydia Foy felt she had no option but to begin a third legal case. This time she asked the court to order the introduction of legislation to allow her to be recognised in her female gender, or to declare that the ECHR Act itself was incompatible with the Convention because it did not provide an effective remedy for breaches of Convention rights.
It was not until the end of 2014 that, as part of a settlement of Dr Foy’s proceedings, the Gender Recognition Bill was finally introduced into the Oireachtas. Thereafter it made good progress until it was passed in July 2015.
Separate to the proceedings, Dr Foy had also applied for compensation for violation of her rights under the Convention provided for under the ECHR Act. The Government could appoint someone to advise it on the appropriate amount of compensation but was not bound by the advice. An application of this nature had not been made previously and no guidance was issued on the procedure. While compensation was ultimately obtained by Dr Foy the procedure was unsatisfactory and lacked transparency.
Domestic law and the Constitution provided no protection for a fundamental human right, the right to recognition in her own true and deeply felt gender. The Convention provided that protection and recognition via the ECHR Act, but only eight years after the High Court had declared that her rights under the Convention had been breached and that the Irish law in question was incompatible with the Convention.
The Convention provided and provides protection for rights in areas where domestic law and the Constitution have failed to do so, but the ECHR Act is inadequate to deliver that protection where the domestic law itself is at fault and where the only remedy is a Declaration of Incompatibility. A process that can take eight years to bring about change following a clear and unequivocal declaration by the High Court is neither effective nor acceptable. Provision for compensation with no publicly available criteria or rules of procedure is also unsatisfactory.
And while the ECHR Act was closely modelled on the UK Human Rights Act, it left out a significant provision from that Act. When introducing Bills in the UK parliament, the Minister responsible must certify whether the Bill complies with the Convention, which requires the government to seriously human rights proof its legislation or face the possibility of its being defeated. That would be a welcome addition to procedure in the Oireachtas as well.
The Lydia Foy case and some other cases involving social housing and Traveller accommodation have demonstrated that the ECHR Act is needed to fill gaps in our human rights protections. However, the Foy case in particular also shows that the ECHR Act is in need of significant reform if it is to become an effective instrument for vindicating rights that are not otherwise protected by our laws and Constitution. Perhaps the need for a revised and strengthened ECHR Act should become part of the debate in the run-up to the forthcoming general election.
And if a new Government is minded to review the working of the ECHR Act, it might also ratify Protocol 12 to the Convention, which contains a free-standing prohibition of discrimination that is stronger and more comprehensive. Ireland signed this Protocol in 2000 but has done nothing about implementing it since then. Eighteen states that are parties to the ECHR, including eight EU countries, have ratified the Protocol and it has already come into force. This creates the danger that a two-tier version of the Convention may develop, where some states have a more effective prohibition of discrimination than others and where Ireland would be in the slow lane.
Surely we could do better than that as we commemorate the centenary of the Proclamation of the Republic, with its guarantee of equal rights and equal opportunities to all its citizens.