The separated wife of a dentist, who was registered at birth as male but later underwent a sex change operation, is "alarmed" about the legal implications for her marital status if her husband wins a court declaration that the refusal to describe her as female on her birth certificate breaches the European Convention on Human Rights, the High Court heard yesterday.
Anne Foy is judicially separated but still legally married to the plaintiff Dr Lydia Foy, Mary O'Toole SC said. If Dr Foy succeeded in securing the court declaration, this would have major implications for the Foys' marriage and for ongoing divorce proceedings and would mean "enormous uncertainty" for Ms Foy and their two daughters.
Ms O'Toole said such a declaration could, for example, mean that Ms Foy was never legally married as, under Irish law, marriage can only occur between persons of the opposite sex. It would also have unknown implications for the divorce proceedings involving Dr Foy and Ms Foy.
If the Foys' marriage was declared void, this could mean, for example, that Ms Foy and her daughters were no longer members of a family as recognised under the Constitution.
It appeared the point of getting the declaration was to procure legislation to address the situation of transsexuals but at the moment there was no such legislation and she was unaware of any legislative proposals in that regard, Ms O'Toole said. Any such legislation would create uncertainty for Ms Foy and her daughters as they would not know the implications for them.
Mr Justice Liam McKechnie said he had, five years ago, invited the legislature to address the situation.
Dr Foy (59), Athy, Co Kildare, wants the High Court to rule that the failure by the State to provide for a system of birth registration, which would allow her to be registered as female, places the State in breach of the European Convention on Human Rights Act 2003.
The European Court of Human Rights unanimously ruled in 2002 in favour of two British transgendered residents; the High Court had urged the Government at that time to address the registration situation of transgendered persons, but the State has done nothing since to make provisions for them, she claims.
Dr Foy was born with male genitalia but 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.
