On Friday, October 19th the Irish High Court declared its intention to issue the first ever Declaration of Incompatibility in Irish law. These declarations are allowed for by s. 5 of the European Convention on Human Rights Act 2003 and are to be issued if Irish law is found to be incompatible with the European Convention on Human Rights.
The Declaration is to be handed down in the case of Lydia Foy – a dentist who was born male and, prior to transitioning to female, married and had a number of children. She later transitioned including having irreversible surgery partly funded by the state and sought to have her birth certificate altered to identify her as female because of the considerable humiliation and trauma caused when she was required to prove her identity by means of a birth certificate on which she was still identified as male.
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 Dáil (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 – 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 “In 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 achieved”. Legislating positively in the context of transpersons may well introduce a much needed realignment of gender notions in Irish law – or at least force a (hopefully informed and balanced) debate on the law’s reliance on gender as a classification and the complexities of gender that simple ‘assignment at birth’ policies tend to obscure.