Foy -v- An t-Ard Chláraitheoir & Ors [2007] IEHC 470 (19 October 2007)

Foy -v- An t-Ard Chláraitheoir & Ors [2007] IEHC 470 (19 October 2007)

The Registrar General has no statutory power under the relevant Irish legislation, including the Civil Registration Act 2004 and its predecessors, to amend the birth register to reflect the acquired gender and name of a post-operative transsexual. The refusal to do so does not constitute an error of fact or substance. The ECHR Act 2003 does not apply retrospectively to decisions or events predating its commencement. However, the current legal regime's failure to provide for recognition of acquired gender is incompatible with the State's obligations under Articles 8 and 12 of the ECHR, as interpreted in Goodwin v. UK. A declaration of incompatibility is warranted.

Citation
[2007] IEHC 470
Parties
Applicant/plaintiff: Lydia Foy; Respondent/defendant: An tArd-Chláraitheoir; Respondents/defendants: Ireland and the Attorney General; Notice Party: Jennifer Foy; Notice Party: Clare Foy; Notice Party: Anne Foy
Jurisdiction
Ireland
Judgment Date
19 October 2007
Procedural Posture
Judicial Review and Statutory Appeal / High Court Judgment Following Supreme Court Remittal and Statutory Appeal Under S.60(8) Civil Registration Act 2004
Outcome
Declaration of incompatibility granted; other reliefs refused.
Legal Topics
Gender Recognition, Birth Registration, Transgender Rights, Interpretation of Statutes, European Convention on Human Rights, Ultra Vires, Retrospectivity of Legislation
Administrative Law Constitutional Law Human Rights Law Family Law Gender Recognition Birth Registration Transgender Rights Interpretation of Statutes +3 more

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Parties

Lydia Foy

Applicant/plaintiff

An tArd-Chláraitheoir

Respondent/defendant

Ireland and the Attorney General

Respondents/defendants

Jennifer Foy

Notice Party

Clare Foy

Notice Party

Anne Foy

Notice Party

Procedural Posture

Judicial Review and Statutory Appeal / High Court Judgment Following Supreme Court Remittal and Statutory Appeal Under S.60(8) Civil Registration Act 2004

Legal Issues

  1. 1 Whether the Registrar General has power to amend the birth register to reflect acquired gender and name of a post-operative transsexual under Irish law
  2. 2 Whether the refusal to amend the register breaches constitutional rights to privacy, dignity, equality, and the right to marry
  3. 3 Whether the refusal is incompatible with Articles 8, 12, and 14 of the European Convention on Human Rights (ECHR)

Ratio Decidendi

The Registrar General has no statutory power under the relevant Irish legislation, including the Civil Registration Act 2004 and its predecessors, to amend the birth register to reflect the acquired gender and name of a post-operative transsexual. The refusal to do so does not constitute an error of fact or substance. The ECHR Act 2003 does not apply retrospectively to decisions or events predating its commencement. However, the current legal regime's failure to provide for recognition of acquired gender is incompatible with the State's obligations under Articles 8 and 12 of the ECHR, as interpreted in Goodwin v. UK. A declaration of incompatibility is warranted.

Court Disposition

Declaration of incompatibility granted; other reliefs refused.

Orders

  • Declaration that the failure to provide for recognition of the applicant's acquired gender is incompatible with Articles 8 and 12 ECHR pursuant to s.5 ECHR Act 2003.
  • Refusal of orders directing amendment of the birth register or issue of a new birth certificate.