Lydia Foy - Second Court Case

Second Court Case

Just two days after the decision against Foy, the European Court of Human Rights in Strasbourg heard a similar case. Christine Goodwin, a British transsexual, had claimed that the United Kingdom's refusal to allow her to amend her birth certificate and to marry as a female violated the European Convention on Human Rights. The Court declared that the UK Government had violated Articles 8 and 12 of the convention. In response, Britain passed the Gender Recognition Act 2004, providing for legal recognition of transgendered persons in their new or acquired gender, and for the issuing of new birth certificates reflecting that gender.

In 2005, the Foy case was sent back before the High Court by the Irish Supreme Court for further consideration. In the interim Ireland had passed the European Convention on Human Rights Act, 2003 to give greater effect to the European Convention on Human Rights in Irish law. Relying on this, Foy made another application for a new birth certificate in November 2005 and when this was rejected, she issued new legal proceedings in the High Court in January 2006, referring to the Goodwin decision by the European Court of Human Rights. These proceedings were consolidated with the earlier case and the matter was heard again by Mr Justice McKechnie. On 19 October 2007, the court found Ireland in violation of the European Convention on Human Rights, and decided to issue the first declaration of incompatibility between Irish and European law. According to Justice Liam McKechnie, provisions of article 8 of the Convention protecting Foy's right to respect for private life had been violated when the State failed "to provide for 'meaningful recognition' of her female identity". He also expressed frustration at the Irish government's failure to take any steps to improve the position of transsexuals following his previous judgment in 2002,