19th October 2000

Transsexual takes High Court case to change birth certificate

A MALE to female transsexual, who has undergone extensive gender reassignment surgery, has asked the High Court to direct the alteration of her birth certificate to record her sex as female, not male.

The case, the first of its kind in the Irish courts, has been taken by Lydia Annice Foy, 53, with an address at Athy, Co Kildare, whose name is recorded on the birth register as Donal Mark Foy, born in June 1947.

The court heard that, as Donal Foy, she married in 1977 and has two daughters.  The marriage ended in the early 1990s and she has no contact with her wife and daughters.  She changed her name to Lydia Annice Foy by deed poll in 1993 and holds a driving licence, medical card, polling card and UK and Irish passports in that name.

But her birth certificate still records she is a male and she has taken proceedings against the Chief Registrar of Births, Marriages and Deaths and the State to alter that.  The applicant’s wife and daughters are notice parties to the action but only the daughters are legally represented, the wife failing to qualify for legal aid.  Mary O’Toole SC, for the daughters, said they had concerns about the implications of the action for their parents marriage.

Opening the case yesterday, Bill Shipsey SC, for Ms Foy, said his client was not seeking to change the birth registration of her daughters or to affect their succession rights in any way.  His client was born with a congenital disability known as congenital gender disability, sometimes gender dysphoria but commonly referred to as transsexualism, and the case was about his client’s right to her true identity and to have it recognised and respected by the State.

It was conceded that, at birth, the applicant had the external genitalia of a male and was registered as a male on that basis.  The determination of gender on the basis of external genitalia was a practice dating back two centuries and the Registrar’s decision was based on Regulations of 1880.  Our understanding of how the human body was made up was now much more vast and comprehensive.  In his client’s case, her brain was at birth, and is now, female.  From as early as she could remember, she considered herself female, regarded herself as female and, in her dreams and aspirations, was female.  She had had to endure great distress in her life as a result of her congenital disability and had tried to live with her family and society’s expectation that she would live and function as a man while her own belief, conviction and determination was that she was first a girl and then a woman.

It was estimated the disability from which she suffered affected one in 12-15,000 persons born with external male genitalia and one in 50-60,000 persons born with external female genitalia.  Ms Foy would try to explain to the court how she came to marry in 1977, had two children with her wife and how her increasing conviction and awareness of her womanhood understandably led to the breakdown of her marriage and the tragic loss of all contact with her daughters, Mr Shipsey said.

As his client advanced through early middle age, she had an increasing desire for the physical anatomy to be made more congruent with her psychological side.  She had psychiatric counselling and, having been advised hormone treatment and physical intervention could have a therapeutic effect, began a painful, costly and ultimately irreversible process of gender assignment.  This involved hormone treatment followed by long and painful electrolysis and then radical surgery, including the removal of the external and internal genitalia with which she was born and the surgical creation of the internal and external genitalia of a woman.  She also underwent breast augmentation, had her Adam’s apple removed and had voice surgery.

This was not something a person took on lightly, the process was full of anguish and personal struggle, Mr Shipsey said.  Significantly, the cost of the surgery was underwritten by the Eastern Health Board which had to be satisfied of the genuineness of his client’s needs and the reality of her congenital disability.  The board had paid £5,000 towards the cost.

Ms Foy’s wished to have the entry relating to her in the birth register rectified to correct what she asserted was a mistake regarding her gender and to correct, as a consequence, her gender indicative name.  While she had changed her name by deed poll, she was still required to produce a birth certificate for a number of professional, official and social purposes, or to give the name on the birth certificate.  Consequently, for a number of purposes, she was still considered to be male.  This was a source of considerable distress to Ms Foy who wished to be considered female in every aspect of her life.  The hearing continues before Mr Justice McKechnie today.

Copright © Irish Examiner, 2000