High Court of Ireland Decisions

female instead of "M" for male, and in column 3 under the heading, `Name', "Lydia Annice" instead of "Donal Mark". In addition to this order rectifying what is claimed to be a fundamental error in the record of his birth, many other reliefs are sought including those reflective of an alleged infringement of constitutional rights, such as the right to privacy, dignity, equality and marriage. The claims as made, both individually and collectively, have been robustly denied and vigorously contested.

The disability referred to, was that, though female, his biological make-up of chromosomes, gonads, & genitalia both internal and external, was that of male. This condition amongst others, is one currently described by the medical profession, as a Gender Identity Disorder.

largely unchanged since the beginning of this century although certain amendments have of course been introduced. Many of the more relevant ones will be referred to later in this judgment. However, ending with the Registration of Births Act, 1996 the main structures so established continue to survive with the office of the Registrar playing a pivotal role in the discharge of the duties and responsibilities assigned to it under this body of legislation. In the briefest of descriptions the Registrar General, through the system and mechanism established by this code, is responsible for the collation and custody of all births, deaths and marriages occurring within the State. The terms of the statutory provisions and the regulations material to this case, are of course, in appropriate detail, hereinafter set forth and recited.

therefore, in the granting or withholding of legal aid, there was any residual discretion, then in my view this was a case for its favourable exercise. However and notwithstanding this less than satisfactory position, I was satisfied that in proceeding with the case, as we did, no injustice would result to the said Mrs. Foy. Thus the notice parties are the children of Dr. and Mrs. Foy.

case therefore there is a story of great human proportions which unfortunately this judgment vehicle in a court of law is unable to adequately portray or properly recreate.

BACKGROUND:

identity objectively assigned to him. This distinction arose in a very simple but direct way: with what group, either boys or girls, would he receive his First Holy Communion? At the age of seven or eight there was but one answer. It was a tearful experience.

Dr. Foy claims that he associated with the mothers of some of the pupils, effectively as some form of substitute girlfriends, though whether this could have been a realistic situation at the age of nine or ten is doubtful. There was no one to whom he could talk about his feelings, his emotions or his desires. A lady, doing domestic chores in the family home, was viewed by him as perhaps being slightly indulgent to his less than boyish inclinations.

In any event, he proceeded on to secondary school, at Clongowes, where he was a boarder between September 1960 and 1965. He described the period as like walking on a tightrope. Some boys felt that he was gay. Some on the other hand, acted in a very "gentlemanly" way towards him. To no group could he intimately relate and thus had no real relationship with either or any. His feelings on gender continued. He had an "in world" and an "out world", one quite distinct and separate from the other. In the former, he reflected on who he truly was, on why his feelings were different, on where he was going and on what the future might hold. In holiday time and in the early morning or late evening when otherwise it was safe to so do, he would cross-dress. This was not the first episode or period in his life when this occurred. At home when growing up, he remembers something as perhaps

innocuous as a towel being used by him as a skirt, though when recalling such an incident or incidents, he considers, at least now, that these were a true expression of himself.

THE MARRIAGE AND MARRIAGE PERIOD:

a psycho sexual problem. The ongoing intensity of dysphoria was matched only by the pace of his inner intensity to feminism. This caused for Dr. Foy emotional, psychological and physical havoc. Still trying to conform and reconcile outwardly, on the one hand, whilst on the other, necessarily trying to maximise his expressions of femininity, caused much deep and prolonged unhappiness. So much so that he suffered from a number of stress related physical complaints. Some way forward for him had to be found.

Medically, surgically and psychologically this major surgery, was for Dr. Foy and continues to be, successful. She is now living in this jurisdiction as a female.

(a) that throughout two and a half years of courtship and for the first four or five years (approximately) of their married life, Dr. Foy appeared, acted, dressed, behaved and responded, both physically and psychologically, as would any average normal man;

(b) that the sexual intimacy which they shared was frequent and normal with both parties equally instigating mutual contact;

(c) that Dr. Foy fathered and was therefore the male progenitor of the two daughters who were conceived out of that marriage;

(d) that to their children, Dr. Foy acted as a father teaching either one or both of them how to sail, boat, drive, fish etc., and on all occasions manifested himself as a male, depicting appropriate masculinity;

(e) that sometime in 1977, either shortly before or after their marriage, Dr. Foy informed his wife that he liked female clothing which she understood to reflect, and was intended to reflect, on her sense of dress and on her femininity

only, a view which I fully share: there being no scope in my opinion for any canvassed argument that this comment was understood by Mrs. Foy in the context of Dr. Foy's own gender identity;

(f) that sometime in 1982/1983, after undergoing surgery, Dr. Foy told his wife that he was a transvestite and so enjoyed wearing female clothing; to which she responded that she would have nothing to do with such activity, that neither she nor the children were ever to see him so dressed and that he was never to mention it again to her. In fact, it was not so raised again until late 1989;

(g) that whilst in their relationship the frequency of intimacy declined in the early to mid 1980's, nevertheless they continued to live as man and wife, having a sexual relationship, up to and indeed after their return from Saudi Arabia sometime in 1987;

(h) that up to the time of their separation, Mrs. Foy never saw Dr. Foy cross-dressed and that at no time, to the knowledge of his wife, did the applicant ever have her clothing, either her inner or her outer wear;

(i) that Dr. Foy was quite a persistent and determined person and had a forceful resolve as to achievement; this in his family relationship both as to general and specific matters;

(j) that Dr. Foy never informed his wife that he was, either at birth or at anytime throughout his life, in reality to himself, female with feminine instincts, feelings, desires and needs; and finally,

(k) that at no time prior to the summer of 1989 and most probably not until the 7th November of that year, did Mrs. Foy have any reason to believe that the person whom she married and who fathered her children, was anyone other

than a normal member of the male sex.

SEXUAL DIFFERENTIATION:

Stage 1. This starts with the fusion of the egg and the sperm when the chromosomal configuration is established. Normally it contains 46 in number with the last two being XX in the case of a future woman and XY in the case of a future man.

Stage 2. This step involves the production of the gonads, which as a common principle originates exactly the same in future men and future women. The genetic information on the Y chromosome directs the indifferent gonads to become testes. When there are two X chromosomes present the indifferent gonads become ovaries. These gonads or sex glands are sometimes referred to as the primary organs of sex.

Stage 3. This involves the formation of the internal genitalia. In each future boy and girl there are two ductal systems, the Mullerian ducts and the Wolffian ducts, which exist as a paired set of structures. If the primitive gonad becomes an ovary the Mullerian ducts form the Fallopian tubes, uterus and upper vagina and the Wolffian ducts disappear. On the other hand if the primitive gonad becomes a testis, the Wolffian ducts form the epididymis, vas deferens and seminal vesicle, with the Mullerian ducts degenerating. As with stage 2 there is also a common principle at this level.

Stage 4. After the formation of the internal genitalia there next comes the development of the external genitalia where testosterone is decisive. If this hormone stimulant is not present a male will not develop. With testosterone there follows a penis, the scrotum and the descent of the testes into it. With a female there is a vulva and vagina.

HORMONES IN THE REPRODUCTIVE SYSTEM:

• Enlargement of the penis, testes and other reproductive parts;

• Growth of pubic, underarm, facial and body hair;

• Enlargement of the larynx, causing the voice to break and deepen;

• Increased muscular development;

• Widening of the shoulders;

• Growth spurt (body weight may double);

• Increased secretion of sebum in the skin, and

• Altered attitudes, for example, increased interest in sexuality.

Again at puberty the male pituitary gland produces two hormones, namely FSH (follicle stimulating hormone) which causes the sperm producing cells in the testes to divide by meiosis and produce sperm and secondly, LH (luteinizing hormone) which stimulates the interstitial cells in the testes to produce testosterone.

• The maturing and enlargement of the breasts;

• Widening of the pelvis to allow for birth;

• Increased body fat;

• Growth of pubic and underarm hair;

• Growth spurt (which is also stimulated by testosterone produced by the adrenal glands), and

• Behavioural changes, for example, interest in sexuality.

with double structures, that is with both an ovary and a testis. Later in the process medicine has discovered that sometimes organs are not sensitive or sensitive sufficient to the production of testosterone and therefore, for example, the prostate is deficient or the vas deferens not existing at all. In the final stage it has been known that people with an XY pattern and who have testes and thus produce testosterone, nevertheless end up with the external genitalia of a female, namely a vulva and a vagina. Indeed many of these individuals act and live like females. They marry and only discover this mischance in nature when they are unable to conceive due to the absence of ovaries and an uterus. So at every stage of the process mishaps can and do occur and have been so recorded as occurring.

In the mid 1950's the term "transsexual" emerged, via the medical profession, into public usage as a means of designating a person who aspired to or who actually lived in the

anatomically contrary gender role. This expression applied whether or not the individual in question had been in receipt of hormonal therapy or had undergone surgery. In the decades which immediately followed the psychiatric profession altered this term somewhat by inserting the word "true" before transsexual. The "true transsexual" was thought to follow a characteristic pattern whose quality of life could be improved by way of a treatment sequence that culminated in genital surgery. It was also thought that this method of identification enhanced the accuracy of the diagnosis. Such persons, who could be of either sex, were thought to have; (a) cross-gender identifications that were consistently expressed behaviourally in childhood, adolescence and adulthood; and (b) minimal or no sexual arousal to cross-dressing and no heterosexual interest relative to their anatomical sex. Other persons, who followed a different path, typically adopting a masculine behavioural pattern, but who nonetheless also arrived at the transsexual door, were distinguished from the former group. This concept however, of the "true transsexual", began to lose favour when the profession realised: (a) that such patients were rarely encountered; (b) that those who requested surgery more commonly had adolescent histories of fetishistic cross-dressing or autogynephilic fantasies without cross-dressing; (c) that patients, undoubtedly transsexual, had not followed the characteristic path of that condition; and (d) that some of the original "true transsexuals" had "falsified their histories to make their stories match the earliest theories about the disorder": see p. 19 of the The Standards of Care for Gender Identity Disorders, (5th ed). (S.O.C.) issued by the Harry Benjamin International Gender Dysphoria Association. The term "gender dysphoria syndrome" was then adopted in order to designate the presence of a gender problem in either sex.

removing their sexual anatomy and transforming their bodies and social roles. Others with different gender dysphoria were separately characterised. In 1994, the DSM-IV committee, replaced the diagnosis of Transsexualism with Gender Identity Disorder. A distinction as to age was made and so one could be described as having a Gender Identity Disorder of Childhood, Adolescence or Adulthood. For persons who did not meet this criteria Gender Identity Disorder Not Otherwise Specified (GIDNOS) was used. Between 1980 and 1994 the term "transgendered" or "trans-person" began to be used but only informally and in a value free manner. It did not replace the more formal name. Accordingly, as of now, for those who suffer with the applicant's condition the preferred term used by members of the various professions applying supportive assistance is Gender Identity Disorder.

Gender Identity Disorder, formerly Gender Dysphoria to include Transsexualism has been recognised for at least the past 25 years or more, as a genuine psychiatric medical condition. It was so classified in DSM (Ed. No. 2) published many years ago. The condition, in the most simple descriptive sense, consists of a person having a persistent dislike and discomfort for his or her own outward looking sex and a feeling that such sex is quite inappropriate to his or her inner self. Such a person has an intense feeling of rejection for the behaviour, attributes, attire and stereotype expectations of his or her biological sex. In addition such an individual has a pervasive desire to be, to belong to, to live and be accepted as a member of the opposite sex to that assigned, and many are prepared to undergo a variety of treatments, to achieve for that purpose the desired level of compatibility with the gender of choice. In short, such people have an innate belief that they live in the wrong body, either in whole or in part and that for their inner self fulfillment it is necessary to discard the expected role of them in their biological sex, and to transform into, adopt and pursue the role and commitment expected of the opposite sex. They believe truly and rationally that they are

members of that sex. This condition is indiscriminate as to creed, class, profession, calling or social position. It can affect virtually all age groups from the very young to adults in their sixties. Statistically it is said that of the general population one in 10,000 to 12,000 males and one in 30,000 females, are affected.

orientation can cover the entire spectrum of such an outlook. Some can be heterosexual, homosexual, bisexual and indeed during the course of their lives adopt more than one of these preferences. There are however, a number of persons who cannot deal with the condition in such a benign way. Treatment, they feel, is essential. Many therefore resort to the psychiatric and medical professions for help. Some will accommodate the condition by relying only on therapeutic advice. Others however, will add hormonal treatment whilst further groups feel that they have no choice but to undergo surgery. Virtually for all the condition is distressing. It can have a serious impairment in almost every aspect of their lives, can lead to secondary physical complaints and indeed without treatment, the suicide rate, at least as suggested, is not insignificant. It is unquestionably an acknowledged psychiatric condition and for those sufferers who portray any characteristics other than those associated with their biological sex, it can cause great humiliation, ridicule, isolation and outright discrimination. It is on any treatment of the subject, a most serious condition.

There are at least two widely used and highly respected nominators which deal with this condition and in particular which set forth and identify the appropriate diagnostic criteria which characterise this condition. DSM-IV, published in 1994, is the manual more widely favoured in North America whilst the International Classification of Diseases (ICD-10) is slightly more applied in Europe. For practical purposes there is no real or substantial difference between the respective texts when dealing with this condition. In the DSM document under the heading, "Diagnostic Criteria for Gender Identity Disorder", the following is stated:-

A. "A strong and persistent cross gender identification (not merely a desire for any perceived cultural advantages of being the other sex).

In children the disturbance is manifested by four (or more) of the following:

(1)      repeatedly stated desire to be, or insistence that he or she is, the other sex,

(2)      in boys, preference for cross-dressing, or simulating female attire: in girls insistence on only wearing stereotypical masculine clothing,

(3)       strong and persistent preferences for cross-sex roles in make-belief play or persistent fantasies of being the other sex,

(4)      intense desire to participate in the stereotypical games and pastimes of the other sex,

(5)      strong preference for playmates of the other sex.

In adolescence and adults, the disturbance is manifested by symptoms such as stated desire to be the other, sex, frequent passing as the other sex, desire to live and be treated as the other sex, or the conviction that he or she has the typical feelings and reactions of the other sex.

B. Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex.

In children, the disturbance in manifested by any of the following:

In boys, the assertion that his penis and testes are disgusting or will disappear or assertion that it would be better not to have a penis, or aversion towards rough and tumble play and rejection of male stereotypical toys, games and activities: In girls the rejection of urinating in a sitting position, assertion that she has or will grow a penis, or assertion that she does not want to grow breasts or menstruate, or marked aversion towards normative female clothing.

In adolescence and adults, the disturbance in manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics (e.g, request for hormones, surgery, or other procedures to physically alter sexual characteristics to simulate the other sex) or belief that he or she was born the wrong sex.

C. The disturbance is not concurrent with any physical intersex condition.

D. The disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

At paragraph F64 of the ICD manual gender identity disorders are dealt with in the manner following:- .

"F 64.0 TRANSSEXUALISM

A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one's anatomical sex and a wish to have hormonal treatment and surgery to make one's body as congruent as possible with the preferred sex.

Diagnostic Guidelines:

For this diagnosis to be made, the transsexual identity should have been present persistently for at least two years, and must not be a symptom of another mental disorder such as schizophrenia, or associated with any intersex, genetic or sex chromosome abnormality.

F 64.1 DUAL-ROLE TRANSVESTISM

The wearing of clothes of the opposite sex for part of the individual's existence in order to enjoy the temporary experience of membership of the opposite sex but without any desire for a more permanent sex change or associated surgical reassignment. No sexual excitement accompanies the cross-dressing which distinguishes the disorder from fetishistic transvestism."

(a) that, in essence the condition is a repudiation of once biological sex including one's primary and secondary sex characteristics as well as the disowning of the psychological, physical, personal and societal manifestations of that sex;

(b) that in its place there is to be found a prolonged and compulsive inner feeling of being and of having to belong to the opposite sex and, insofar as treatment, including hormonal and surgical will permit, of having to adopt both the primary and secondary sex characteristics of that sex;

(c) that this cross-gender identification, commands in that person's existence, a need to demonstrate, to have acknowledged and to have accepted, by the world at large including their loved ones this fundamental change and the manifestations of that change;

(d) that this condition cannot be a symptom of any other mental disorder such as schizophrenia; and

(e) that this addictive desire for a new identity is separate and distinct from any intersex condition such as a genetic or sex chromosomal abnormality.

Finally it should be noted that in neither DMS-IV or in the ICD document, is there any suggestion that the condition is congenital in origin.

Having so diagnosed the existence of this disorder, the next step is to consider the treatment which is available, though in this jurisdiction the third step in the triadic therapeutic sequence, namely surgery, is not. The desired standard for this treatment is now comprehensively articulated in a publication issued under the name of the Gender Dysphoria Association, which is mentioned at para. 24 above. This standard of care, "SOC", also known as the Harry Benjamin Guidelines, is that which is aspired to by each branch of the different professions which has an input into this matter. There is widespread unconditional support for these standards with modifications occurring only where the circumstances do not permit of their strict compliance or where from clinical experience the unit in question, has by itself, imposed a higher standard. However for all purposes these guidelines set the level to which the care of such persons should be measured and implemented.

(A) THRESHOLD

(i) The clinical threshold for an individual purporting to have this condition, is passed when his or her uncertainties, concerns and questions about gender identity, persist and reach such a level of intensity that these become the consummate part of that person's existence. Such gender dysphoria frequently manifests itself in and from pre-school days and continues to old age. In form it comes about by varying degrees of personal dissatisfaction with sexual anatomy, gender demarcating body characteristics, gender roles, gender identity and with the perception of others.

(ii) When so diagnosed the overarching treatment goal of the specialists, whether they be psychotherapeutic, endocrinal or surgical, is the lasting personal comfort with the gender of choice; this so as to maximise the overall psychological well-being and self fulfillment of the patient.

(iii) The involvement of these professionals covers any and all of the following, namely, diagnostic assessment, psychotherapy, real life experience, hormonal therapy and surgical procedure.

(iv) All such persons must be conscious of the distinction between eligibility and readiness criteria, certainly when considering the administration of hormones or when making a recommendation for the carrying out of surgery. Before a person is eligible to move to the next step in the sequence of treatment, whether that be real life experience, the administration of hormones or the carrying out of surgery, not only must compliance with the specified criteria be documented, but in addition the doctor in question must make a clinical judgment as to whether such person is ready to embark upon that progressive next stage.

(B) DIAGNOSTIC ASSESSMENT:

A diagnosis of this condition can be made only on and if the criteria specified in DSM-IV and/or ICD is satisfied.

(C) PSYCHOTHERAPY:

The offer of therapeutic help may vary from clinic to clinic. For some patients its availability may by itself be sufficient to satisfy the degree of disability from which that

patient suffers. Most clinics will provide a range of education to deal with matters such as the next phases of treatment, all of which are optional, and with the patient's awareness of the familial, vocational, inter personal, educational, economic and legal consequences of attempting to change one's gender role.

(D) REAL LIFE EXPERIENCE:

The act of fully adopting a new or evolving gender role for the events and processes of every day life is known as the real life experience. Because of the enormous consequences of embarking upon the course of action which is contemplated, it is critical for the clinician, who is concerned with the psychological and psychiatric well-being of the patient, to assess periodically the quality of that person's real life experience in his/her new gender role. Such real life experience involves the legal acquisition of a new name appropriate to the gender of one's choice, the dressing fully and at all times in the clothes of the opposite sex and the engagement in work or study within the community in that role.

(E) HORMONAL TREATMENT:

Prior to the administration of such treatment, the prescribing doctor must be satisfied that the patient inter alia has a documented real life experience of not less than three months, or has undergone a period of psychotherapy of not less than that period. At p. 31, para. 5 of the S.O.C. it is stated "under no circumstances should a person be provided hormones who has" not fulfilled either of this criteria.

(F) SURGERY:

Six eligibility criteria for surgery exist and these apply equally to biological males and females. They are:

(i) Legal age of majority, in the patient's own country.

(ii) Twelve months of continuous hormonal therapy for those without a medical contraindication.

(iii) Twelve months of continuous full-time real life experience, which must be successful.

(iv) Whilst psychotherapy is not an absolute requirement for surgery for adults, regular sessions may be required by the treating psychiatrist.

(v) Knowledge of the costs, required length of hospitalisation, likely complications and post surgical rehabilitation requirements, and

(vi) An awareness of different competent surgeons.

In addition the patient must demonstrate acceptable progress in consolidating the new gender identity and certainly must demonstrate such progress in dealing with work, family and inter-personal issues resulting in a significantly better and more stable state of mental health.

If surgery becomes an option in a male to female patient, the procedures available may include orchidectomy, penectomy, vaginoplasty, augmentation mammaplasty and vocal cord surgery.

As I have previously said, all or virtually all, of the practitioners in this area apply the diagnostic criteria in either DSM-IV or ICD and aspire to implement the Guidelines from the Harry Benjamin Institute. For reasons, individual to a given hospital or clinic, some of the specified standards are often modified: rarely if ever by way of relaxation, almost always by may of additive requirement. In this case a number of doctors gave evidence as to how the above mentioned documented data, in practice is implemented in their separate units. Dr. Samuel Dalrymple a consultant psychiatrist with over 20 years experience in this field,

has been attached to the gender identity clinic at Charing Cross Hospital for nine years and for the last four has held the position of lead clinician. This unit deals exclusively with people who have gender identity disorders and does not engage in any other type of psychiatry. He would see about 200 patients per annum of which 50 would be new patients. Approximately 45% to 48% of those who have been diagnosed as transsexuals, proceed through the available range of treatment including surgery. With the appointment of a second surgeon which has recently come about, this clinic will carry out 90 procedures to the year ending April 2002 and thereafter 80 such procedures annually. It is the biggest of any similar clinic in the UK.

for a consideration of surgical realignment, and having undergone a complete course of `hormonal treatment, at least two clinical opinions within the unit, must then express a view as to whether or not for that patient, surgery would be appropriate. The completion, even successfully, of all previous steps is not an automatic entry to surgery. Following upon such a recommendation, if so made, the patient is then seen by the surgeon who has an independent right to fully reassess the situation. He can conclude positively or negatively. Only if he agrees with the recommendation can the patient undergo surgery.

of the particular service available in this area. To admit or not to admit, is the decision of the panel before whom the patient is interviewed and to whom the entire information is copied. On this panel are three consultant psychiatrists, two neurologists, a consultant physician, a nurse from the gynaecological clinic, a social worker, a speech therapist and two lawyers. Having been admitted, the Harry Benjamin Guidelines are acted upon with some modifications. There then follows three stages. Stage 1 involves a period of twelve months in role prior to any drugs being considered. During this time the person is seen in the out patients' department, which includes a speech therapist, on probably six occasions. At the end of this one year period, a second interview takes place before the panel. At this meeting it is decided whether or not the patient should proceed with the second stage. This stage involves the administration of hormones and has a duration of approximately one year. At the end of that period a third interview takes place and if a continuation of treatment is thought desirable, the panel will make a decision to refer the patient to the surgeon. In so doing it is expressing no view on surgery, this decision being purely one for the surgeon. The overall period from the time of presentation to the completion of the entire cycle is a minimum of five years which includes a waiting time of approximately fifteen months.

twenty, would have been recommended for surgery. Whilst at all times he would have a commitment to the Harry Benjamin Guidelines, nevertheless because of several factors, including the limited number of patients involved, the lack of true specialised facilities and the absence of any panel or other professional support group, it has not always been possible to do so. In Ireland there is no surgery available.

At paras. 16 and 17 above there is a brief reference to this period but for the court's decision on the question of diagnosis a further understanding of this time and of relevant events is necessary. These are as follows:-

(a) In August, 1989 there was for Dr. Foy a crisis imminently unfolding. Being so unwell and having a feeling of profound illness, she was seen by a fellow professional of the Eastern Health Board in August of that year. Dr. Wilson, consultant psychiatrist with the Board saw her as a matter of urgency and with priority when requested to so do. The consultation was brief but pointed. Though it was not suggested that this doctor had any expertise, practice or knowledge of gender identity disorder, nonetheless the information obtained was sufficient for her to realise that a referral onwards to Dr. O'Donoghue was required. Whilst awaiting that appointment Dr. Foy collapsed and was seen at Naas General Hospital on the 24th August, 1989.

(b) On the 5th September, the patient saw Dr. O'Donoghue for the first time. Dr. Foy continued to be his patient until mid September or at the latest the 1st October, 1990, during which period she was seen by him on approximately twelve occasions. The reasons why this termination took place are not highly material though two aspects of it should be noted. First, Dr. O'Donoghue could not under any circumstances be criticised, and had no responsibility for the ending of this patient and client

relationship. Second it was Dr. Foy's sole choice to leave this practice and she did so because of a resolute insistence on her part that Dr. O'Donoghue should defy the expert opinion of a child psychologist in the context of visitations to her children.

(c) At the first visit Dr. O'Donoghue was informed that the patient had already commenced self-medicating. His recollection was for about one year prior to that visit; Dr. Foy's recollection was for about one week. In any event because of this self-medicating and because of the uncertainty on his part as to the precise nature of the hormonal drugs being used or the dosage thereof, he, the doctor, decided, after two consultations, in the interest of regulating the intake of such drugs, to formally commence Dr. Foy on hormonal treatment. In October or November he prescribed oestrogen and also a testosterone suppressant, the latter at a quantity level, which despite the applicant's claims, was not in my view excessive. On the 7th November he saw both Mr. Foy and Mrs. Foy. To the latter he explained what the condition of gender identity disorder was, what tentative diagnosis he had arrived at and also he outlined the range of treatment, up to and including surgery, upon which Dr. Foy might potentially embark. During that twelve month period a major issue of concern to Dr. Foy and one which she discussed repeatedly with Dr. O'Donoghue was her children and the views, opinions and beliefs held by her with regard to access and visitation. These views were not shared by Mrs. Foy. This difficulty was the subject of constant debate throughout that year. Dr. O'Donoghue wasn't sure if one could say that on the 5th September, Dr. Foy was presenting as a self diagnosed transsexual. Whether she was or not, there was no doubt in his own mind, but that the tentative diagnosis arrived at, early on in their relationship, was correct and that in his opinion Dr. Foy was a transsexual. His patient however, was not in role at any time during this period. She was at all times quite insistent and a very determined person. Dr.

O'Donoghue saw her as an in-patient for the last time, on the 1st October 1990, but it is quite clear that in the previous month, for the reasons given, their relationship had ended.

(d) Being concerned lest his former patient should not be under the care of any psychiatrist, Dr. O'Donoghue wrote on the 19th September, the 15th November and the 17th December, all of 1990, to Miss. Foy helping to obtain another psychiatrist who might be in a position to assist. Ultimately Dr. Michelle Cahill was identified. This doctor first saw the patient on the 22nd January, 1991. For this almost four month interval there was no evidence that Dr. Foy was under the care of any psychiatrist.

(i) the referral occurred only because of the breakdown between the patient and Dr. O'Donoghue and given the existence of a volatile situation. Dr. Cahill saw her role as maintaining the applicant's position but no more:

(ii) this doctor therefore acted in a "stop gap" capacity (to use her own words) and at all times to the knowledge of Lydia Foy, intended to refer the patient onwards;

(iii) her value was in therapeutic support which she could provide, by being available, without being critical or judgemental, and by talking with and listening to the applicant;

(iv) she was not a treating doctor;

(v) she would not and never had (or has) prescribed hormones for people with gender identity disorders and as such had no view, and therefore expressed none, on the hormonal medication prescribed by Dr. O'Donoghue;

(vi) she was not advising the patient regarding her treatment, that simply was not her role and neither was it to make any clinical decision regarding surgery - a position which she made known to Dr. Foy;

(vii) she had no reason to doubt the diagnosis made by Dr. O'Donoghue but that given his pre-eminence in this area and the accepted reversal of their respective roles (normally she would refer patients to him), she did not independently make any separate diagnosis of the applicant's condition; and finally,

(viii) in her said letter to Dr. Russell, when she speaks of seeking a second opinion on sexual reassignment, the prior opinion to which she was referring, was that of Dr. O'Donoghue and not her own.

by the Health Board with Dr. Cahill but an internal memorandum from the Board contains a recommendation dated the 19th March, 1992, that "the necessary arrangements be made for her to have to have an operation at Charing Cross Hospital, London". In the events which happened a sum of approximately £3,000 was made available in respect of this surgery. However, this did not take place, as would appear to have been indicated, at Charing Cross but rather at the private clinic of the operating surgeon at Hove in England. This change of location was brought about by what Dr. Foy described as the urgency of her situation. However it is quite unclear to me as to when this decision was made or by whom. It certainly was not that of Dr. Cahill. The correspondence with Mr. Royle from Dr. Russell on the 7th January, 1992 would appear to indicate that a decision had at that stage been taken to have the operation carried out in Hove. In the internal memorandum just mentioned the Health Board was of the view as late as March 1992 that the operation was to be carried out at Charing Cross. Someone at some stage altered that. Whilst nothing of any great significance turns on this, it is however indicative of what I think was the applicant's utter determination to drive on with surgery at any cost.

male to female transsexual. From the psychiatric viewpoint it is appropriate for her to proceed to gender reassignment surgery".

(i) The applicant was self-medicating when first seen by Dr. O'Donoghue on the 5th September 1989. This fact is not in dispute though the period of such intake is.

(ii) She had I am quite satisfied, a firm view of her condition which in its essential form was that of a transsexual, a view which, when the opportunity arose, she expressed and implemented forcibly.

(iii) She was prescribed hormones without having any or any documented real life experience. Understandable in the circumstances this may have been, nonetheless this was clearly in breach of the Guidelines and of the practice at both Charing Cross and at Newcastle.

(iv) Dr. Foy never worked or engaged in occupation on a full-time basis within the community in her new gender of choice.

(v) She had one and only one treating doctor, namely Dr. O'Donoghue. This means that from October 1990 right throughout 1991 and up to July 1992, she was not under the care of any training psychiatric consultant.

(vi) She was not seen by any consultant between October 1990 and January 1991, when she saw Dr. Cahill for the first time. Dr. Cahill was not treating Miss. Foy for transsexualism,

(vi) Neither Dr. Reid nor Dr. Dalrymple had overall responsibility for Miss. Foy's health with both doctors seeing and examining the applicant on one occasion only,

(viii) If, as I believe, the first psychiatric recommendation for surgery was that of Dr. Russell Reid in January 1992, it follows that the applicant was in real life experience for a period of ten months only, which period again falls short, indeed in part significantly short, of the published material and the practice in the aforesaid clinics, and finally,

Dr. Cahill and that as such the applicant was under her care, for at least two years. So for him, with the back-up expertise which he thought the system had produced, a single one hour consultation, with only Dr. Cahill's letter of 2nd December 1991, was quite sufficient. So it would appear that there was never a recommendation from the only treating doctor, namely Dr. O'Donoghue, which in my view is a significant omission in the process. The consequences in this case, thankfully are not of significance but they could be and given the irreversible nature of the late stages of treatment, it is essential in my respectful view that no voids should be allowed to exist at any step of the process. Indeed Dr. Darlymple recalled a situation at Charing Cross where two individuals, some fifteen or twenty years ago inappropriately went through the system, and later regretted it. He felt that a repeat situation could not now occur. No matter how impressive a system may look, it is only as good as its implementation. In this case it is not necessary at this remove in point of time to search for and identify why this breakdown occurred, but it seems to me that it was largely attributable to the absence of a treating doctor taking overall responsibility for the patient and in his place the applicant herself effectively adopting this role.

matter of evidential fact, that all psychiatrists who gave evidence in this case accepted as a medical record and as a matter of personal knowledge from transsexual patients, that a characteristic among patients with this condition is a tendency to rigorously press on with their desired treatment, even if, in the process, accuracy and sometimes truthfulness are the victims. Against that, and so, subject of course to the particular comments previously made, I should also like to say that I have found Dr. Foy utterly genuine, honourable and committed, and I do accept her repeatedly expressed conviction of having no choice in her search for treatment.

A number of eminent consultants gave evidence in this case and each dealt with or touched upon the existence or non-existence of this alleged fifth indicator. In addition to Doctors O'Donoghue, Darlymple, and Dunleavy, mentioned above, the court also heard the evidence of Professor Gooren and Professor Green.

Professor Gooren is a specialist in endocrinology, in particular in the hormones of men and, women which relate to sexual reproduction and sexual differentiation. This doctor is and for several years past, has been attached to the Free University Hospital in Amsterdam. In 1988 he was appointed Professor in Hormonal Diseases with special interest in the conditions of intersex and transexualism. As Professor of Transsexuology he has worked for over twenty years at the gender clinic in that hospital. He has lectured widely, written a number of books and has been responsible for several publications. He has provided evidence to various courts in different jurisdictions including the European Court of Human Rights. He has attended

conferences and taken part in many of the more major debates on this condition throughout the years. He is undoubtedly pre-eminent in his field.

In his evidence he described what transsexualism was and did so in a manner which is reflected at paras. 26 and 27 above. He said, rather surprising perhaps, that to some degree the condition effects one in 12,000 males and one in 30 to 40,000 females from the overall public pool of persons. He confirmed that sexual differentiation is the process of becoming man and woman and that, as earlier mentioned its four sequential steps, are, first, the fusion of the egg and sperm from which the chromosomal pattern is determined, secondly the production of the gonads, thirdly the formation of the internal genitalia and lastly the establishment of external genitalia. These have always been known as the biological markers or indicators of sex. Though the process is stepwise, nature is not perfect and at all stages errors can and do occur. As a result for a very small number of people but nonetheless a number forming a very definite group in society, there is a lack of congruence between one or more of these indicators. Specific examples of where nature has gone wrong are given at para. 22 above. This resulting condition, when it exists, is referred to by the medical profession as an intersex condition.

The above indicators were traditionally thought to be self inclusive and therefore to be a complete set of markers in determining the sex of a human person. Whilst acknowledging that the acceptance of this has worked well for millions of years in respect of the vast majority of people, nevertheless the Professor argues that this long established view must now be reassessed in light of the present medical and scientific evidence. When it is he alleges, that this court should conclude that there is a fifth indicator of sex which is of course the brain indicator. In his opinion at birth every boy and girl is born with a part of their brain being pre-programmed as either a "male" brain or a "female" brain. This part fills out or

evolves between two and four years of life and generally it follows the other markers of sex, namely the biological markers. Hence all indicators are concordant. However in the case of the transsexual this is not the situation. A person with such a condition usually, but not always, has a full set of what might be described as the normal biological criteria of the male or female sex, but his or her brain totally refutes that sex which by those indicators society would assign to him. A transsexual therefore suffers from this condition because his or her psychological sex has not followed adult markers. In this way it differs from an inter sex condition. With the latter there exists a contradiction within stages 1 to 4, but with transsexualism, these stages are normally congruent but in their totality are out of step with the psychological brain.

shape and size of that part in the male brain is larger than the corresponding part in the female brain. Secondly when that part of the hypothalamus was examined, in the male to female transsexual, the result was that in terms of shape and size the relevant part fell within the limits of the "normal" female and not within the limits of the "normal" male. Hence the alleged presence, via these studies, of support for the view that there is a neurological explanation for the condition of transsexualism.

These are however, in my view, several limitations with these studies and as a result there exists a certain number of difficulties with both the conclusion which is sought to be made based on them and the extrapolation which is sought to be taken from them. These difficulties are outlined later in this judgment.

Dr. Green is the Professor of Medical Genetics at U.C.D. He is a fellow of several colleges and faculties, is the Director of the National Centre for Medical Genetics at Our Lady's Hospital for Sick Children in Crumlin as well as being a consultant at that hospital and at Temple Street. He has written and published widely and is an authoritative expert in his field. Though not an endocrinologist or a psychiatrist, his practice involves the diagnosis and treatment of intersex persons many of whom have a genetic base. And so in both his own and in the court's view, Professor Green was qualified to give the evidence which he did during the course of the hearing.

First, he referred to an analysis which was carried out on Dr. Foy in Crumlin Hospital on the 22nd July 1999. The purpose was to analyse the chromosomal compliment of the applicant, to determine whether that was male or female and to detect the presence of any chromosomal abnormality, if that should exist. Whilst this analysis was done by Dr. Stallings, the report of the latter and the witnesses' views thereon, were admitted without objection. This test showed a perfectly normal "chromosomal" pattern applicable to a male, as well as a normal genetic profile, again applicable to such a person. Within the remit of the test there was no indication of any abnormality in the make-up of the person under review. In addition knowing as one does that Dr. Foy fathered two children it is clear that at the relevant time he was fertile which is confirmatory of the absence of certain disorders.

identification and development as an illustration of what he meant. He felt that uncertainty existed as to whether the difference between the male and female brain was an independent event or was reliant, either in whole or part, upon other forces. He pointed out that because of hormonal factors, facial hair and particular bodily characteristics occur. He therefore postulated whether the difference in the respective brains of males and females, which he acknowledged, could similarly relate to some other earlier stage of human sex development. The process is a sequential one. A following step cannot occur without the previous one. This could equally apply to the brain which should not be taken in isolation. More research was needed, he said; a fact acknowledged itself by one of the studies above mentioned. The process of falsification was important. As of now he did not think that there was sufficient evidence to establish a fifth independent factor. In his opinion, a transsexual male to female as here, was male at birth and equally remained male prior to any gender reassignment surgery. Post that surgery, if the appearance of the transsexual was that of the preferred gender and if the individual wished to be regarded as of that gender, he would so regard that individual. He would in a post-operative situation respect a person's wishes even though, chromosomially and in several other structural ways, that person could never fully become a female. He recognised that there was a difference between biological sex and gender. Gender is how a person feels in terms of sex about themselves.

Professor Green told the court that human life depends on there being a progenitor.

He concluded by indicating that, in his opinion, transsexualism was not an intersex condition as by definition the latter involved an abnormality in stages one to four. He was satisfied to follow the DMS-IV and the Guidelines. He also freely acknowledged that Gender Identity Disorder was a recognised psychiatric condition.

In addition to his evidence on the practice and procedure at Charing Cross Hospital, and on his examination of the applicant on the 9th July 1992, Dr. Darlymple also expressed views of a more general nature. In the context of relevance to the issue presently under discussion, he was of the opinion that transsexualism was a recognised psychiatric disorder and had been so recognised as such a disorder for several years. He was satisfied with the DSM-IV and the ICD documents. Therefore, subject to the following observation, he agreed that transsexualism was not concurrent with any other physical intersex condition, that it was not a symptom of any other mental disorder such as schizophrenia and likewise that it was not associated with any genetic or sex chromosome abnormality. The observation mentioned was that though intersex was different, he felt that perhaps some future research might show a linkage between that condition and transsexulism, which conditions of course could conceivably exist simultaneously in the same person. Dr. Darlymple re-emphasised the approach of the psychiatric profession which was one focused on and directed towards psychiatric health and not biological status. In the post-surgical reassignment situation, he would have no doubt but that the patient should be regarded as of the female gender for all intents and purposes but no further would he go. He was not making a statement about biological set up or about brain sex differentiation. Within his discipline therefore his understanding was that this condition was psychiatrically based and that the post-operative individual should and was entitled to be regarded as of his or her preferred gender.

Like his colleague from the Charing Cross Clinic, Dr. Dunleavy informed the court that transsexualism was not concordant with any other physical intersex condition which condition was biological in origin. Neither was it, part of any other psychiatric illness or part

of a genetic or chromosomal abnormality. It was and has been recognised for decades as a psychiatric illness. In treating such patients the advice of the psychiatrist is directed towards the happiness and well-being, physiologically; of that person. It is no part of the doctor's brief to address the biological issues which in any event in his opinion would be impossible to change. If a person had a normal chromosomal profile, normal hormonal profile, genitalia properly formed and had fathered two children, then, that individual was at birth male. Surgery, and in particular post reassignment surgery, if successful, would lead to a new gender. If hormones were stopped or significantly reduced then there was every likelihood of a regression, by this he meant in the case of a male to female transsexual, that hair growth and other former characteristics would re-emerge. He saw at present no reason to change from the published criteria based view that this was not an intersex condition or a condition of the brain.

Dr. O'Donoghue was, in all material respects, in agreement with the other consultant psychiatrists who gave evidence before me. He did not consider that this was a congenital abnormality and was satisfied that it was separate from an intersex condition. It was psychiatrically based but he said that because of the recent publications some people might move closer to the line of thinking that there may be some neuro hormonal basis for the condition. He relied upon and supported DSM-IV and ICD. It was not possible in his opinion to assess gender dysphoria in the newborn but some differences did emerge between age three and four. At four to five the concept of gender became an issue. The purpose of surgery in his view was to reassign a person's biological body with a person's psychological self-identity. In his opinion Dr. Foy was at birth and prior to surgery a male but post-operatively was only partially a male. There was in his view a clear distinction between sex

and gender, gender being the psychological component of sex. Post July 1992, Dr. Foy was of the female gender.

Dr. Daly, who at the relevant time was Master of the Coombe Hospital in Dublin, performed an ultrasound scan on Miss. Foy on the 11th August 1999. The scan evaluated the pelvic anatomy. As to be expected the result of the scan showed no uterus or cervix. Thus there was no evidence of ovarian tissue. The vagina had a normal appearance as did the bladder and bowel loops. There was no sign of any female reproductive organs.

Dr. Quinn who is a general practitioner in Athy, Co. Kildare, has seen the applicant on a number of occasions throughout the years. She gave evidence of Miss. Foy's external appearance after July 1992 and commented favourably on the end result including breast augmentation.

The applicant seeks an order of certiorari by way of an application for judicial review to quash the decision taken by the first named respondent refusing to correct the entry relating to the applicant's sex, at column 4 in the Register of Births, by changing it from "male" to

"female." She also seeks a similar order in relation to the refusal of the first named respondent to correct the entry relating to the her name, at column 3 in the Register of Births, by changing it from "Donal Mark" to "Lydia Annice."

privacy and to dignity insofar as they do not allow for the correction of column 3 and column 4 of the applicant's entry in the birth register.

The notice parties have also filed a defence.

The pleadings in this way have thus been closed.

In para. 2 of this judgment there is a very brief overview of this framework. It commences in respect of births with the Registration of Births and Deaths (Ireland) Act, 1863, which set up in this country, for the first time, a structure with personnel, to carry out and perform the duties and responsibilities assigned to it. Section 4 of the Act established a General Register Office and provided for the appointment of a fit and competent person, to be known as the Registrar General, to take charge of that office. The titles of both the office and its occupant were changed, by section 3 of the Vital Statistics and Births, Deaths and Marriages

Registration Act, 1952, to Oifig an Ard-Chlaraitheora and to An tArd-Chlaraitheoir, respectively. That office holder, with the consent of the Lord Lieutenant in Council, was given the power to alter the forms annexed to that Act and the right to appoint an assistant to be known as the Assistant Registrar General. In Part II, districts, to be known as the Superintendent Registrar's Districts and the Registrar's Districts were provided for, as well as the personnel to fill and operate these posts. Other administrative supports including the provision of register books and forms were put in place. Under s.30 every registrar was required to inform himself carefully of every birth and death which happened within his district and to learn and register, as soon after the event as conveniently could be done, in one of the said register books the particulars required to be registered according to the annexed forms (A) or (B) whichever was appropriate. As a result of the cross-reference to form (A), which dealt with the registration of births, s.30 required the recording of the sex of the child which was to be made in column 4 of form (A).

No. of entry,

Date and Place of Birth,

Name, that is Christian Name (if any), Sex, whether "male" or "female",

The Christian Name, Surname and Dwelling Place of the Father,

The Christian Name and Married Surname of the Mother: then her maiden Surname preceded by the word "formally",

The Rank, Profession, Trade or calling of the Father,

The Signature, Qualification and Residence of the Informant, The Date when Registered,

The Signature of the Registrar,

Baptismal Name, if added after Registration of the Birth and Date.

Section 30 of the Act of 1863 was amended by s. 4 of the Registration of Births Act, 1996 :-

(a) by the substitution for "Forms (A) and (B) hereunto annexed respectively" of "Form (B) hereunto annexed, in respect of deaths " and

(b) by the deletion of Form (A), annexed thereto"

Number of entry.

Date and Place of Birth.

Sex of Child.

Forename(s) and Surname of the Child.

Mother's Forename and Surname, Address and Occupation.

Any former Surname(s) of Mother.

Father's Forename and Surname, Address and Occupation.

Any former Surname(s) of Father.

Signature, Qualification and Address of Informant:

Date of Registration and Signature of Registrar:

Forenames(s) of Child, if added after Registration of Birth and Date thereof.

Section 1 of the Act of 1996 does not apply to the registration of any birth registered before the commencement of that Act: - s.1 (7) thereof. However and notwithstanding this, it is interesting to me that the "sex" and "name" of a child must still be specified though in relation to sex, the words" "whether 'male' or 'female'" have been deleted.

Under s.1 of this, the 1880 Act, it is the duty of certain identified or identifiable persons (qualified informants) to give to the registrar, within 42 days of birth, information of the particulars required to be registered concerning such birth and in the presence of the registrar to sign the register. In order of priority, this duty is placed on the father and mother of the child, in default on the occupier of the house where the child was born, in default on each person present at the birth and lastly on the person having charge of the child.

Under the section next following, if within this period of time the required information was not forthcoming from these informants, the registrar could by notice in writing require any of these persons to supply such information and to do so not later than three months from the date of birth, and furthermore could require such persons to attend and sign the register in the presence of the registrar.

If after the expiration of twelve months the birth of any child had not been registered, then the written authority of the Registrar General was required and due compliance with prescribed rules was necessary.

"27. With regard to the correction of errors in registers of births and deaths it shall be enacted as follows:-

(2) Any clerical errors, whether they occurred before or after the commencement of this Act, which may from time to time be discovered in any such register may be corrected by any person authorised in that behalf by the Registrar General subject to the prescribed rules.

(3) An error of fact or substance in any such register may be corrected by entry in the margin (without any alteration of the original entry) by the officer having the custody of the register upon payment of the appointed fee, and upon production to him by the person requiring such error to be corrected of a statutory declaration

(Form C, Schedule Three), setting forth the nature of the error and the true facts of the case, and made by one or more persons required by this Act to give information concerning the birth or death with reference to which the error has been made, or in default of such persons, then by two credible persons having knowledge of the truth of the case; and it shall be the duty of the registrar, on becoming aware of any error in fact or substance, to send a requisition to the informant requiring him to attend and correct same.

(4) ......

And whenever such correction shall have been made in any entry of birth or death subsequently to the transmission to the General Register Office of the return of certified copies containing such entry, such declaration or certificate of coroner shall be forthwith sent through the post office to the Registrar General, who shall cause such correction to be made in the certified copy, and such addition shall be held to be good as if part of the original entry."

Forms A, B, and C of the First Schedule to the Act of 1880 deal with the change of name under s.8 and Form C of the Third Schedule with the statutory declaration required under s.27 (3) to correct errors of fact or of substance.

Section 6 (1) of the aforesaid Act of 1952, allows the Minister to make regulations for the issue, inter alia, of birth certificates containing such items as may be specified in the regulations. This resulted in S.I. 215/1953 which instrument is headed "Short Birth Certificate Regulations, 1953. " Paragraph 3 defines a "short birth certificate" as meaning in respect of an entry in the register of births, a certificate of the items set out in Part I of the Schedule endorsed in the manner set out in Parts II, III or IV of the said Schedule. Part I includes the name and surname of the person as well as the "sex" of that person. In passing I should say that I do not read para. 5 of this statutory instrument in the same way as has been suggested on behalf of the respondents. I believe that para. 5 deals with "the application" for such a certificate and not with the particulars which should be contained in that certificate.

In any event, in addition to this statutory instrument the Vital Statistics Regulations ( S.I. 280/1954), require the recorded particulars to be made available to the Central Statistics Officer. The particulars to be supplied have also been laterally^-supplemented in relation to stillbirths by S.I. 427/1994.

Section 22 of the Adoption Act, 1952, as later amended, requires the establishment and maintenance of an Adopted Children's Register, with the Minister again being given power by regulation to provide for the short form birth certificate and in particular for which items should be contained therein.

Section 11 of the Registration of Births and Deaths (Ireland) Act, 1863, gives to the Lord Lieutenant, or with his consent to the Registrar General, power to make regulations for the management of the General Register Office and for the discharge of the duties of the Registrar General, officers, clerks and servants of the said office and of the superintendent registrars and registrars and their respective deputies.

A complimentary power was also conferred on the Lord Lieutenant, or with his consent on the Registrar General, under s.34 of the Act of 1880. Under this section either of these office holders, could by order, alter or amend any existing forms and could prescribe new forms as well as making regulations for "prescribing any matters authorised by this Act to be prescribed, and to revoke and alter such regulations ".

Superintendent Registrars of Births, Deaths and Marriages made in 1881 ("the 1881 Regulations ").

"Column .3. The name (commonly known as the Christian name), if any, which shall have been given to the child in baptism, or otherwise. The surname must not be inserted in this column. ... (Reg 64).

Column 4. The Sex, whether "male" or "female". (Reg 65)

Similar information is required where the birth is registered after three months and indeed after twelve months.

The correction of errors in completed entries is dealt with in paras. 159 to 171. Regulation 159 provides:-

"The Registrar must make no alteration in any completed Entry of a Birth or Death, whether made before or after the commencement of the ... (Act of 1880) except in accordance with the provisions here set forth."

Regulation 160 deals with clerical errors: it reads:-

"Clerical errors. - All accidental Errors and omissions made through want of care in entering the particulars, or signing the entries, or through misunderstanding on the part of the Informant or the Registrar, are to be deemed Clerical Errors. A list of Errors of this nature is given in the Appendix F page 54, and they are arranged in two classes, namely (1) those Clerical Errors which may be corrected in the presence of an Informant ... and (2) those which may be corrected in the presence of a qualified Informant only ".

The method of correcting such an error is by the Registrar

"drawing his pin through the erroneous words, letters, or figures, and by writing what is correct above the word etc. struck out, or by supplying what is deficient when an Error consists of an omission. The Registrar having so made the correction; must note the Clerical Error in the broader margin of the Entry in which it occurs by writing therein the words "Clerical Error in Col. Corrected on the day of by me. ... An asterisk (*) should be fixed to the note in the margin and to the word etc. altered or supplied. " (Reg. 161)

Regulation 169 states:-

"The Registrar must correct an error of fact or substance in a Register Book of which he has the custody, by entering in the margin without any alteration of the original Entry, upon payment to him ... and upon production to him by such person of a Statutory Declaration on Form C, Third Schedule, made before a Justice of the Peace, setting forth the nature of the Error and the true facts of the case. The declaration must be made by one or more persons required to give information concerning the Birth or Death with reference to which the Error has been made, or in default of such persons then by two creditable persons having knowledge of the truth of the case. "

"170. The Registrar is required upon becoming aware of any Error of Fact or Substance to send a Requisition on the proper printed form to the Informant requiring him to attend and correct such Error........"

"Upon the attendance of such an Informant ..... and upon the production to him of the Statutory Declaration duly made and signed by the proper person or persons, he must, unless there are reasonable grounds for his declining to so do, make the correction in the broader margin of the Register Book opposite to the erroneous Entry in the manner shown in Appendix F p. 63. If the Error be the insertion of erroneous words or figures, the Registrar must indicate such words or figures in the body of the Entry by affixing an asterisk (*) to such works or figures, he must then send …"

On behalf of the applicant it is submitted that this court should now conclude from the most recent medical and scientific evidence available, first, that there exists this alleged fifth indicator of sexual differentiation, secondly, that where such indicator is inconsistent with biological markers then the former should be given precedence over the latter, and thirdly, that when in existence, this conflict is present no later than at birth and accordingly the person

who suffers from this condition, is at birth, of a sex contrary to his or her anatomical structures. This being the true position, as the argument goes, any entry in column 4 of the register which does not reflect this, is an entry containing an error of fact or substance and accordingly the Registrar General under s.27 of the Act of 1880, has not only the power but also the duty to correct it. Certainly he must do so, at least where the affected individual has undergone gender reassignment surgery. This proposition has at its core a claim that the biological criteria, as fixed by the court in Corbett v. Corbett [1970] 2 W.L.R. 1306, should not be applied or followed in circumstances like the present.

On behalf of the respondents the first submission, dealt with the principles of interpretation which should apply to the relevant Acts and Regulations made thereunder. A distinction is of course made between pre 1937 Statutes and post 1937 Acts of the Oireachtas. This, in the context of the presumption of constitutionality, of the double construction rule and of the

principles of constitutional justice with regard to proceedings, procedures, discretions, and adjudications which are permitted, provided for or prescribed by post 1937 Acts. Since, quite evidently, the Acts in question pre-date the Constitution there is, on that account only, no presumption as to constitutionality. However relying on ESB v. Gormley [1985] I.R. 129 it is suggested that by virtue of s.15 (2) of the Vital Statistics and Births, Deaths and Marriages Registration Act, 1952 and s.5 of the Births, Deaths and Marriages Registration Act, 1972, the appropriate Acts and Regulations are deserving of this presumption. Even however if this be incorrect, it is submitted that in accordance with judicial dicta, an example of which is the. State (Kennedy) v. Little [1931] I.R.39, the courts, even with pre-1922 statutes, should be quite slow and quite reluctant to declare any such a Act, inconsistent with the Constitution unless it is evidently so contrary. In any event it is pointed out that the onus of establishing inconsistency rests with the person who challenges the continuing validity of the provision in question. As between the effect of a presumption and this onus, it is stated in Kelly, The Irish Constitution (3rd ed.) at p. 455 that "one would be hard put to identify a real distinction between this requirement and the presumption of constitutionality itself".

These submissions on behalf of the daughters of Dr. and Mrs. Foy, cover some of the grounds already mentioned in the preceding recitation, and therefore I don't propose to further repeat what is already set out elsewhere in this judgment. In principle however the submissions of behalf of the Notice parties were focused, correctly in my view, on the consequences for

them, which would follow if the reliefs sought were granted. It was pointed out that if there was an alteration of the historical document to record the applicant as having been born female then the resulting marriage of Dr. Foy to Mrs. Foy would be void, the consequences of which would have a profound effect on the status not only of Mrs. Foy but also of the children of that marriage. The law relating to nullity in Ireland is governed by the Matrimonial Causes and Marriage, Law (Ireland) Amendment Act, 1870. A distinction must be made between a decree of dissolution of marriage and a decree of nullity. Griffith v. Griffith [1944] I.R. 35 was cited in support of this distinction, as was Shatter's Family Law (4th ed.) at p. 182. Based on what Haugh J. said in Griffith, (supra) and on what the textbook refers to as the law, it is claimed by the notice parties that if persons of the same biological sex enter into a contract of marriage then that marriage is void. Accordingly, if the amendment as to sex is granted, the notice parties would be deprived of their status as members of a constitutional family. Mrs. Foy would never have been the wife of Dr. Foy and so the orders of both the Circuit Court and the High Court on Circuit, which are referred to above, would be set at naught or at least placed in serious jeopardy. These orders, some of which have the effect of regulating property rights are of great importance even to this day. In many other spheres, for example in areas such as taxation, social welfare, etc. the resulting consequences are unknown and at a minimum great uncertainty would arise. Moreover the birth certificates of the children would be open to review and alteration. In all it is claimed that to permit the amendments as sought would be to gravely interfere with the established rights of the notice parties and their mother.

consider the question of constitutionality, then the balancing result should favour the rights of the notice parties over and above that of the applicant.

The first major issue in this case is whether on the correct interpretation of the relevant provisions of the Acts of 1863 and 1880 and the Regulations made thereunder, the Registrar General, in his application of these provisions to the facts of this case, was or was not legally correct in relation to the original entry and his refusal to amend. His views and the basis for such views, must therefore be examined. Having done that, the issue then demands an evidential decision on the fifth indicator of sexual differentiation.

Commencing with her letter dated the 29th March 1993, the applicant entered into correspondence with the Registrar and the General Register Office with a view, initially, to obtaining an amended birth certificate showing her corrected name and what she claimed was her corrected sex. Throughout the summer and autumn of 1993 that correspondence continued. On the 17th December of that year the Assistant Registrar General, Mr. Kehoe, replied to Mr. James Houlihan, solicitor who was then appearing on behalf of the applicant.

He pointed out that an entry in the birth register is a record of an event and thus is confined to the relevant facts then in existence with regard to that birth. The entry is not intended to be a personal record which could be updated from time to time. The format of that entry requires the sex of the child to be specified in column 4. Though he understood that Dr. Foy had undergone gender reassignment surgery, this fact in his opinion had no bearing on the relevant entry. He regretted that the first named respondent could not accede to the request for the corrections as sought.

In the following number of years further correspondence passed between the parties from time to time. On the 17th January 1996, Mr. Kehoe's successor, Mr. O'Cleirigh, wrote to Dr. Foy and effectively repeated the position of the Registrar General as previously outlined in the said letter dated the 17th December 1993. On the 3rd December of that year, Miss Johnson, who was then representing Dr. Foy, wrote to Mr. O'Cleirigh formally seeking to have the original entry in column 4 of the Register, with regard to her client, amended by specifying as her sex "female" instead of "male". The basis of this application, which was made pursuant to regulation 168 of the 1880 Regulations, was that at birth Dr. Foy was a female but was suffering from a disability which had not been diagnosed. In addition in that letter it was claimed that any negative response would constitute a breach of the applicant's constitutional rights to privacy, dignity, equality and the right to marry.

" ... I would like to explain that an entry in the birth register is a record of a particular event: which occurred on a particular date. It is therefore confined to the facts relating to the circumstances of birth at the time of the birth in question. In this

case it relates to a birth of Donal M. Foy which occurred on the 23rd of June 1947 in St. Mary's Home, Athlone. I must also explain that a birth entry is not, nor did the law intend it to be, a personal record which is to be constantly updated to take account of every significant change in the life history of the subject.

The format of the entry in the register of births in prescribed by law, in particular s.30 of the Births and Deaths Registration (Ireland) Act, 1863 and the Schedule to that Act, and it requires the recording of the sex of the child in column 4. The physical evidence of the genital characteristics of the child at birth would be used to determine sex, for registration purposes and a determination on this basis would be reflected in column 4 of the relevant birth entry.

I am aware from the correspondence on the file that Miss Foy has undergone gender reassignment surgery, related hormone and other treatments. While I fully accept the significance of this for her as a person, I must explain that it has no bearing on the facts of the birth and accordingly there would not appear to be any possibility for an amendment to birth entry in question. For this reason even if a statutory declaration was completed for the amendment you requested, which would be the procedure in the case of an amendment of an error of fact or substance, An t-Ard Chlaraitheoir would not be in a position to grant authorisation for such an amendment. "

In July 1994, Mr. O'Cleirigh succeeded Patrick J. Kehoe as the Assistant Registrar General in the General Office dealing with births, deaths and marriages. Subject to the direction and supervision of An tArd-Chlaraitheoir, who at the relevant time was Mr. Anthony Enright, an assistant secretary in the Department of Health and Children, this witness is effectively in charge of the Office of the Registrar General.

He explained that a civil system of registration was first introduced in this country by the Marriage (Ireland) Act, 1844, under which all marriages, save for those involving Roman Catholics, had to be registered. This omission was corrected by the Registration of Marriages (Ireland) Act, 1863. In the same year a similar system with regard to births and deaths was also provided, this by virtue of the Act of 1863. Under this legislation, as previously noted, a General Register Office was established, and provision was made for its staffing and support, with the offices of Registrar General, Assistant Register General and many others, also being

created. To facilitate the system the country was divided into almost 800 districts with a registrar for each district. In the years since, many such districts have been merged with the result that there is now approximately 250 district registrars. Each of these registrars has the duties and responsibilities referred to above and in particular at paras. 70, 71, 72 and at 78 to 83, inclusive.

Part of their function is to make quarterly returns to the Registrar General. This is affected through the district's Superintendent Registrar, who looks for, and if found, corrects any errors therein. These returns comprise an exact copy of each entry which is originally made in the register.

The particulars required to be registered, in respect of a birth, have remained unchanged from the commencement of the system until the coming into force of the Act of 1996. The amendments affected by this piece of legislation were intended to and did introduce an equality of recorded information as between a child's mother and a child's father. Save for this, the information is the same. In particular column 4 remains unaltered with column 3 being amended only by the addition of the child's surname to the already existing requirement of the child's forename.

with a variety of other documents, it may have some uses in the obtaining of services, nevertheless its legal status is and remains that as described by him.

"In Column 4 read 'female' for 'male' with a likewise reference in Column 3. If so made though prospectively dated, nevertheless such a corrected entry would indicate in Mr. O'Cleirigh's view that Ms. Foy had been born female with the name Lydia Annice. So the last paragraph of Section 27 where it is stated that any such alteration `shall be held to be good as if part of the original'. "

correction, or else a certificate displaying the amended particulars without indicating that a correction has taken place. In addition there is available a short form certificate, which contains the particulars identified at para. 75 above. As I understand the evidence where a correction has taken place, this form can be produced in like manner to the long form birth certificate again where corrections have taken place.

neighbouring jurisdiction the practice in similar circumstances was to enter in column 4 "sex not determined " or "indeterminate sex ". Whilst acknowledging that there was no scope within the Acts or Regulations for facilitating this, his preferred choice, he emphasised that he had never to deal with such a case and that no precedent existed to determine how it would be handled.

DECISION ON ISSUE:

Though Form A has now been replaced by s.1 of the Act of 1996 and the Schedule thereto, nevertheless these two requirements as to sex and name continue to form part of the mandatary notation in respect of every birth. The sex to be specified, notwithstanding the absence of the words "male" and "female" from the Schedule to the Act of 1996, must be either that of "male" or "female", there being no suggestion that it could be otherwise. So

in the execution of his duties and responsibilities, the Registrar must, as of the date of birth, record the sex of the new-born child and must do so as either being male or female.

exclusively the biologically criteria for making such a determination, or, more accurately, the external genitals, if in appearance and structure these are normal. Where the chromosomal, gonadal and internal and external genitalia of the person are congruent then that is conclusive as to the resulting entry. These biological criteria are generally said, to have derived by way of formal categorisation from the decision of Ormrod J. in Corbett -v- Corbett (supra.) even though that was a nullity case. In it the petitioning husband sought a declaration that a ceremony of marriage, between him and the respondent on the 10th September 1953, in Gibraltar, was null and void and of no effect on the ground that at the time of its celebration the respondent was a person of the male sex. In the alternative he alleged that a similar result should follow as it was claimed that the marriage was never consummated owing to the incapacity or wilful refusal of the respondent to so do. This second ground is not relevant to the issues in the present case. However and notwithstanding the differences in the legislative codes between Corbett and Foy, the decision of Ormrod J. on the first issue is and remains highly material.

the respondent and with his assistance she changed her name to April Ashley, though the superintendent registrar refused to effect a comparable change in her birth certificate. After going through the marriage above mentioned, the parties for a variety of different and complicated reasons, not here relevant, remained together for a period of fourteen days only. There then followed the petition launching Corbett -v- Corbett.

"This hypothesis is based on experimental work by Professor Harris and others on immature rats and other animals, including rhesus monkeys, which suggests that the copulatory behaviour of the adult animals may be affected by the influence of certain sex hormones on particular cells in the hypothalmus, a part of the brain closely related to the pituitary gland, in early infancy. At present the application of this work to the human being is purely hypothetical and speculative. Moreover the extrapolation of these observations on the instinctual or reflex behaviour of animals to the conscious motives and desires of the human being seems to me, at best, hazardous. The use of such phrases as "male or female brain" in this connection is

apt to mislead owing to the ambiguity of the word "brain ". In the present context it refers to a particular group of nerve cells, but not to the seat of consciousness or of the thinking process. In my judgment these theories have nothing to contribute to the solution of the present case. On this part of the evidence my conclusion is that the respondent is correctly described as a male transsexual ..... "

(i) Chromosomal factors,

(ii) Gonadal factors (i.e. presence or absence of testes or ovaries),

(iii) Genital factors (including internal sex organs) and

(iv) Psychological factors

In addition apparently some of the witnesses would add as a fifth, hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique etc). As with all of the doctors in the Foy case, the medical experts in Corbett emphasised at p. 1319 that these criteria had been evolved for the purposes

"of systematising medical knowledge and assisting in the difficult task of deciding the best way of managing the unfortunate patients who suffer, either physically or psychologically, from sexual abnormalities. As Professor Dewhurst observed: 'we do not determine sex - in medicine we determine the sex in which it is best for the individual to live'."

The learned trial judge then commented that these "criteria are, of course, relevant to, but do not necessarily decide, the legal basis of sex determination. "

of male chromosomal sex: to have had testes prior to the operation and therefore to be of male gonadal sex and to have had male external genitalia without any evidence of internal or external female sex organs. As a result the learned trial judge was of the view that she was of male genital sex but psychologically was a transsexual.

"The question then becomes, what is meant by the word "woman " in the context of a marriage, for I am not concerned to determine the "legal sex" of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors' criteria, i.e. the chromosomal, gonadal and genital tests. and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. "

The conclusion, by applying this criteria, was that the respondent was not a woman for the purposes of marriage but was a biological male and had been so since birth. The ceremony was therefore void.

U.K. and elsewhere and this not only in the field of marriage law but also in the context of other legal relations between person and person and person and institution. Given the passage of time from its delivery and the advances in knowledge and understanding since that time, the questions now are, whether or not a continuing adherence to this criteria for the purposes of the original entry is valid, and secondly whether the test adopted for the correction of errors is likewise valid and still within the aforesaid Acts and Regulations? Or, on her representation of the evidence, should what the applicant argues for now be in place, in particular with regard to the correction of errors? And if so can such Acts and Regulations be read in such a way as to accommodate this viewpoint? In the first instance this, in my opinion, requires a decision by this court on the expert evidence offered to it, on the fifth indicator of sexual differentiation.

The present issue in respect of which the surrounding evidence was given, which is summarised above, is whether or not for the purposes of the registration of a birth, the law should hold that the criteria in determining sex should not be confined to the biological markers but should also include a fifth indicator namely brain differentiation. In my view having considered the totality of this evidence I cannot agree that the approach of the Registrar was either incorrect or incomplete. I am of the opinion that the evidence to date is insufficient to establish the existence of brain differentiation as a marker of sex and accordingly I do not believe that this court in such circumstances could give to it the legal recognition which is sought. My conclusions on this aspect of the case are based on the following:-

(i) In the article published in "Nature " it is stated that "the possible psychogenic or biological aetiology of transsexuality has been the subject of debate for many years", a situation which in my view continues to the present time.

(ii) In that article the main concentration was on a particular part of the hypothalamus, the central subdivision of the bed nucleus of the stria terminalis (BSTc), which part is responsible for biological functions such as hunger, appetite, respiration, cardiac system, sexual activity and sexual behaviour. It was shown that the (BSTc) was larger in "normal men " than in "normal women ", and also shown that in the six male to female transsexuals looked at, the size of their (BSTc) was found to be within the female range acrid not within the male range.

(iii) Fundamental to the value of this study was that the BST plays an essential role in masculine sexual behaviour and in the regulation of gonadotrophin release, as shown by studies in the rat. However this assumption was heavily qualified by the study itself where for example at p. 4 of the "Nature" publication, it is stated that "there has been no direct evidence that the BST has such a role in human sexual behaviour but our demonstration of a sexually dimorphic pattern in the size of the human BSTc, ... indicates that this nucleus may also be involved in human sexual or reproductive functions." Though Professor Gooren now says that the word "may ", is too loose and should be replaced by the word "likely", nevertheless the qualifications stated largely remain.

(iv) It has not been possible to segregate or assign to any one of the aforesaid individual functions, a nerve cell or a collection of nerve cells which is or are particular to that function. Consequently one cannot say which nucleus is responsible for sexual behaviour and sexual function.

(v) The small number of subjects viewed must be noted.

(vi) The fact that for statistical purposes there is no soundly based evidence as to what the size of the BST is, in a male to female transsexual should also be noted,

(vii) In rat studies, it had been suggested that the neurochemical sex differences in the rat BST, may be due to the effects of the sex hormones on the brain during development

and in adulthood. In considering this as a possible explanation for the results found in the six male to female transsexuals reviewed, the study looked at the effect of testosterone, the effect of the lack of oestrogen, the effect of high levels of oestrogen and the effect of the lack of androgen. The subjects involved, in each of these categories, which were relied upon to distance the suggested human explanation from the rat experiments, were limited in number and restrictively confined.

(viii) The findings in the animal studies, of the effects of such hormones, were based on a belief, which had been established, that within the BST of rats there were oestrogen and androgen receptors and consequently such rats could receive hormonal signals. It has not been established whether or not there exists such receptors in human beings, a piece of information which would be highly valuable.

(ix) As is evident from the studies and from the evidence, Professor Gooren sought to extrapolate into the human situation certain findings determined in the rat experiments. However he was most reluctant to and quite reserved in agreeing to a like extrapolation in the context of the studies findings that the volume of the BST in the rat can be changed by the administration, post-natally, of exogenous hormones - in effect the male rat can be induced to have a lower volume and a female rat a higher volume.

(x) Investigations of genetics, gonads, genitalia and hormone levels of transsexuals have failed to produce any results which would explain their status,

(xi) One does not know the dynamics of why the nucleus is larger in men than in women,

(xii) One cannot say that this difference in size is because a person is a transsexual,

(xiii) One cannot say when this difference in size occurs or over what period it develops,

(xiv) One cannot say that this difference exists at birth,

(xv) One cannot say how the volume is affected over the developing life of the brain as brain function and structures are not immutable,

(xvi) One cannot say as a result whether this is congenital or not,

(xvii) In a Council of Europe Colloquy on Transsexualism Professor Swaab referred to three male to female transsexuals, details of which he was familiar with. These persons did not come within the group of six above mentioned. In two of the cases sexual dimorphic nucleus of the brain was similar to the female brain pattern but in the third this was not so found,

(xviii) These studies which have been analysed, as well as, of course the May 2000 article in the Journal of Clinical Endocrinology and Metabolism, have undoubtedly added to the debate and have laid a platform or foundation for further investigation but of themselves have not established and/or not established sufficiently the existence of this fifth indicator.

(xix) There is no fully established consensus with regard to the presence of this factor. In the same November 1995 edition of "Nature ", Dr. Breedlove published an article responding to the research of Zhou et al. Whilst it is unnecessary to detail that report in this judgment, it can be said that scientific reservations were expressed about the acceptance at that time, and on the evidence then available, of the existence of a fifth indicator. That uncertainty and lack of consensus continue to the present time. An example of the ongoing debate is an article headed "A brain sexual dimorphism controlled by adult circulating androgens ", researched by Cooke et al, and published in 1999. In that article it was suggested that a possible confounding variable, in

the explanation inter alia, for the difference in size between male and female brains and the male to female transsexual brain, was the concentration of circulating hormones seen in these groups in adulthood. At p. 1 under the heading "Abstract", the study says "We now report a sexual dimorphism in the volume of a brain nucleus in rats that can be completely accounted for by adult sex differences in circulating androgen. ... This report demonstrates that adult hormone manipulations can completely reverse a sexual dimorphism in brain regional volume in a mammalian species". Whilst such studies were in rats and whilst considerable caution must as a result exist, nevertheless the learned authors were of the view that a sufficient linkage existed which justified the publication of this research as part of the ongoing debate about the reasons why the volume of the BST is different;

(xx) Finally, the views and reservations of Professor Green are also noted.

For the above reasons therefore, I believe that the four biological indicators should continue to act as the governance in the determination of sex for the purposes of this case and that, though transsexualism is undoubtedly a recognised psychiatric disorder, it cannot, at least as of now, found its existence in neuro science. Some day with further research this may be the case but in my view from the evidence adduced, that stage has not as yet been reached. Perhaps the proof sought is substantial but so too is the change.

"Sex - the omission of the Sex.

An error in the Sex, if the Sex as stated is inconsistent with the name, the Rank, Profession or Occupation.....

An alleged error in the Sex which is proved to be an error on the production of satisfactory documentary evidence. "

Apart from this entry, I cannot find any other material reference in the appendix to errors in column 4 which might be classified as clerical errors. However and notwithstanding Appendix F, it is clear, that irrespective of the court's finding on the medical and scientific

evidence, the error alleged by the applicant could not, under any circumstances, be described as a clerical error. If otherwise a basis existed for its foundation, it would have to be considered as an error coming within, section 27(3) of the Act of 1880 and thus properly described as an error of fact or substance. This is perfectly consistent with reg. 168 which states that all errors other than clerical errors must be regarded as errors of fact or substance: see also the judgment in R v. Registrar General, ex parte P and G, [1996]2 FLR 90 hereinafter referred to. Accordingly it is this statutory framework of Births, Deaths and Marriages which the registrar General and through him each registrar must operate, in the discharge of their respective duties and responsibilities.

In P v. S & Cornwall County Council [1996] E.C.R: (Case C - 13/94) the European Court of Justice was called upon to express an opinion on the scope and implementation of Council directive 76/207/EC. This was concerned with the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training, promotion, and working conditions. In April 1991, P was taken on as a manager of an educational establishment operated by Cornwall County Council. Sometime later she informed the principal and chief executive of that establishment, that she intended to undergo gender reassignment surgery. That was to change, insofar as possible, her biological sex (male) to suit her sexual identity (female). It was suggested on her behalf, that predominantly if not exclusively, her subsequent dismissal was related directly to her condition and to her intention of undergoing such surgery, and as a result it was claimed that both S and the County Council violated the principle of equal treatment in its dealing with her. The opinion of the Advocate General was supportive of P as was the subsequent ruling of the court. In its judgment the court concluded that the scope of the directive "cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to the discrimination arising, as in this case, from the gender reassignment of the person concerned. " Accordingly it ruled that the dismissal of P was contrary to Article 5 (1) of the directive and that as the same could not be justified under Article 2 (2), her dismissal was unlawful.

As is evident from this brief summary of the case, the decision was given in the context of a particular directive and as such is, in the context of a transsexual, authority for the interpretation of that particular directive only. The purpose and intention of the directive, its scope, and the underlying rationale which led the court to make the decision which it did,

must all be considered in context, which context is entirely distinguishable from the factual and legal matrix which surrounds the present case. Whilst therefore noting the importance of that decision for transsexuals in the workplace, I do not believe that it would be correct or proper to extrapolate from P v. S (supra.) any broad principle which would have a significant influence in this court's decision in Dr. Foy's circumstances.

The Court of Appeal in 1982 gave judgment in R v. Tan & Ors [1983] Q.B. 1053. In the Crown Court the first named respondent, Tan, and Gloria Greaves were convicted inter alia, of keeping a disorderly house with Greaves, in addition, on count 3 being convicted of living on the earnings of a prostitute contrary to s.30 of the Sexual Offences Act, 1956. On count 5 Mr. Brian Greaves was also convicted of living on the earnings of male prostitution contrary to s.5 of the Sexual Offences Act, 1967. Several issues arose on, and were dealt with, in the appeal judgment. One such issue, relevant to this case, related to the offences charged on counts 3 and 5, an essential ingredient of each being that Gloria Greaves was a man. The judgment records an acceptance that Gloria Greaves was born a man and remained biologically a man, even though "he" had undergone both hormonal treatment and gender reassignment surgery. Corbett v. Corbett (supra) was referred to as determining, which undoubtedly was the case, that for the purposes of marriage one of the parties had to be a biological male. However, it was submitted on behalf of the accused persons that for the purposes of the relevant sections of the Acts of 1956 and 1967, another test should apply, namely that if a person had become philosophically, psychologically or socially female, then that was and should be the sex of the person for the purposes of the charges levelled against him. At p. 1064 of the judgment Parker J., in giving the court's response to this submission, said as follows:

"We reject this submission without hesitation. In our judgment, both common sense and a desirability of certainty and consistency demand that the decision in Corbett v. Corbett should apply for the purpose, not only of marriage, but also for a charge under s.30 of the Sexual Offences Act 1956 or s.5 of the Sexual Offences Act 1967. The same test would apply also if a man had indulged in buggery with another biological man. That the Corbett v. Corbett decision would apply in such a case was accepted on behalf of the appellant. It would, in our view, create an unacceptable situation if the law were such that a marriage between Gloria Greaves and another man was a nullity on the ground that Gloria Greaves was a man: that buggery to which she consented with such other person was not an offence for the same reason: but that Gloria Greaves could live on the earnings of a female prostitute without offending again s.30 of the 1956 Act because for that purpose he/she was not a man and that the like position would arise in the case of someone charged with living on his earnings of a male prostitute."

As with P v. S & Cornwall County Council, (supra) this Court of Appeal's judgment was concerned, inter alia, with two particular statutory provisions and so was essentially concerned with the correct interpretation of such sections. However unlike P v. S, (supra) the court was dealing not only with domestic legislation, but also in the absence of a statutory definition, with what criteria it would apply in order to determine whether Gloria Greaves was or was not a "man" for the purposes of the sections in question. It is evident from the judgment that the court, had no hesitation in applying Corbett v. Corbett (supra.). Whilst I fully appreciate that the resulting views of the court were given in the context of a criminal offence and were delivered prior to both Rees (supra) and Cossey (supra), nonetheless the judgment was a clear endorsement of Ormrod J. and an extension, by way of application, of these principles into this limited area of the criminal law.

"Even if, as Doctor Russell Reid contends, it is now quite clear that medically the sex of an individual must be regarded as being decided by the construction of the brain (and I consider that, without being any way unreasonable, the Registrar General could continue to have reservations about that) problems remain as to:

(1) What ought to be written in the register of births at a time when, as 1 understand the medical evidence, the unusual construction of the brain, is not apparent;

(2) Whether the Registrar General must amend the entry once the unusual construction of the brain is brought to his attention. What evidence is there that all of those which such brains do become transsexuals? And even if they do become transsexuals, what evidence is there that all of them want to be reclassified."

Having concluded as I have:-

the applicant then, as an alternative submission, claims that the aforesaid Acts and Regulations are inconsistent with the Constitution and therefore, subject to precise identification, have not been carried over into Irish domestic law by Article 50 of the Constitution of Ireland, 1937.

More accurately put, the claim is not that such Acts and Regulations are unconstitutional because of a specific prohibition but rather that their infirmity results from such Acts and Regulations having no provision by which the rectification sought may be achieved. This failure, which precludes the fact of correction and its retrospective application to the 23rd June, 1947, means, that on a number of occasions, Dr. Foy is placed in a situation of either having to reveal her anatomical sex and in the process suffer embarrassment, humiliation and distress, or else as having to falsify what the law denies to her and in preferring that option, to expose herself to sanction, even criminal sanction, as well as to suffer the anger, frustration and disappointment which such a contradiction places upon her. In addition as the law of marriage presently stands she cannot legally marry a biological man. In consequence it is alleged that this existing state of the legal process constitutes both an unwarranted and unjustified interference with her rights of privacy, of dignity, of equality as well as her right to marry.

Article 40

1. All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

2. .....

3. 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. "

3 °.....

4° ......

Article 41 reads:-

Article 41

1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2. .....

3. .....

Article 50 of the Constitution reads as follows:-

Article 50

1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstat Eireann immediately

prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.

2. Laws enacted before, but expressed to come into force after, the coming into operation of this Constitution, shall, unless otherwise enacted by the Oireachtas, come into force in accordance with the terms thereof.

As the Acts and Regulations in question were passed and made in the last century, there can not be, subject to the ESB v. Gormley case [1985] I.R. 129, any presumption as to constitutionality. In Educational Company v. Fitzpatrick (No. 2) [1961 ] I.R. 345, Budd J. stated (at p. 368):-

"It is suggested that there is some presumption that (the Trade Disputes Act 1906) is constitutional. Such a presumption may well apply to Acts of the Oireachtas, since the legislative body must be deemed to legislate with a knowledge of the Constitution and presumably does not intend by its measures to infringe it. There is no logical basis for such a presumption in the case of Acts of the late United Kingdom Parliament. The legislature then had no knowledge of the Constitution to be and could never be said to have legislated with any regard to it. "

In the ESB case, the Supreme Court held that if a pre 1937 statute had been re-enacted by the Oireachtas, then that fact was sufficient to confer on the statute the presumption in question. It also held that if the Oireachtas had amended a statute, in such a way as to "effectively" re-enact it, then likewise such a presumption would follow. In this case I cannot agree that s. 15 (2) of the 1952 Act or s. 7 of the 1996 Act have that effect. Both sections simply permit the earlier acts to be construed as one with those acts. Likewise with s.5 of the 1972 Act.

This gives the Minister power to make regulations under s.30 of the 1863 Act. None of this activity by the Oireachtas is in my view in any way sufficient to confer on the earlier acts any such presumption. Therefore in these circumstances the normal onus of proof, without any presumption, rests on the applicant. Secondly on either the intra vires test or on what O'Higgins C.J. said in the Norris (supra) case, it is perfectly clear that Article 50 cannot be invoked as a vehicle for incorporating into our law any statutory provision which not only is inconsistent with the Constitution but also which does not respect and reflect that Constitution. Thirdly where there are two reasonable interpretations open, than in the case of conflict that which is constitutional should be preferred to that which is not. And fourthly, wherever it becomes necessary to consider more than one section of the Constitution, it behoves the court in such circumstances to adopt an approach which harmonises all such sections unless it is not possible to do so. If this occurs then the hierarchy of such rights must be considered.

The above are only some of the more general rules of interpretation. This is because I have considerable reservations as to how relevant these principles are. If the attack was based on the existence of a statute or of a provision thereof, their relevance would immediately be apparent. In the instant case this is not the position. The allegation is that of failure rather than commission.

"Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. "

He then went on to state that there were many aspects of the right to privacy and that one such aspect included, within that right, an entitlement to have phone conversations without any unjustified interference therewith or intrusion thereon. In that case the learned President had no doubt but that servants of the State who listened to such conversations without justification infringed that right.

birth certificate, she can obtain one with her sex and name corrected in the manner in which she claims.

In addition to the allegation that Dr. Foy's right of privacy has been breached, it is also claimed that there exists a right to dignity which has also been invaded, again without just cause or excuse. As with the right to privacy this right of human dignity is not specified as a

fundamental right but is expressly referred to in the Preamble of the Constitution. Whether the basis of this right is to be found in that part of the Charter or is sourced in a manner similar to the right of privacy is not relevant here. Its existence undoubtedly is acknowledged. In re: Article 26 Offences Against the State (Amendment) Bill [1940] I.R. 470, and in re Philip Clarke [1950] I.R. 235 the courts have stated that the dignity of an individual is a value to be pursued. Hederman J., in McKinley v. the Minister for Defence [1992] 2 I.R. 333 said (at p. 349):-

"It seems clear to me that Articles 40 and 41 should be construed in accordance with the statement contained in the Preamble to the Constitution that the People gave to themselves the Constitution in order that amongst other objectives 'the dignity and freedom of the individual might be assured'. "

More recently Denham J., in re A Ward of Court, (supra) at p. 163 of the report stated as follows:

"An unspecified right under the Constitution to all persons as human persons is dignity - to be treated with dignity. "

Accordingly the State must accord to that right the same entitlement as it must give, inter alia to the right of privacy.

This right is expressly mentioned in Article 40.1 of the Constitution. Under this heading it is alleged that the applicant, whether by way of administrative or executive decision or by way of legislative provision or court judgment should be afforded both the same entitlement and the same treatment as that available to a person who is biologically female.

he claimed a violation of his rights under articles 8 and 12 of the European Convention on Human Rights.

Article 8.

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedom of others. "

Article 12:

"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. "

given the option of changing their personal status to fit their newly gained identity. Where such provision was made the exercise of this option was subject to conditions of varying strictness and many states retained a number of express reservations, an example of which would be previously incurred obligations. In other states no such option was given, not even one which was heavily circumscribed. Accordingly the court held that each contracting party enjoyed a wide margin of appreciation in how it dealt with the issue before it.

"That being so, it must for the time being be left to the respondent state to determine to what extent it can meet the remaining demands of transsexuals. However, the court is conscious of the seriousness of the problems affecting these persons and the distress they suffer. The Convention has always to be interpreted and applied in the light of current circumstances. The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments. "

It is forcibly submitted on behalf of the applicant in this case that since the judgment in Rees, the nature, significance and importance of the scientific and societal developments make a review of the Corbett principles mandatory, certainly with regard to birth entries.

role, in its ultimate decision, nevertheless the court was not proposing to offer, through its own jurisprudence, a view which substantially differed from the original or traditional view. In addition it was not of course dealing with an applicant who was married and who had a family. It did issue a word of warning however by cautioning the Contracting States to keep the matter under review particularly in light of any new scientific or societal developments. It is in the light of what is considered to be some major advances that the applicant in this case particularly relies. This submission remains a live one notwithstanding my conclusion on the medical evidence.

the decision of the Registrar General who took the view that only a biological male could be named as "father" in a child's birth certificate. In para. 52 of the judgment the court concluded as follows:- "given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach amongst the Contracting States, the court is of the opinion that article 8 (art. 8) cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision. (art. 8) " Accordingly as of March 1997 the court held by fourteen votes to six that there had been no violation of article 8 and having also considered article 14 found by a majority of seventeen to three that it was not necessary to make any independent on the alleged breach of that article.

On behalf of the government of the United Kingdom it was argued that Professor Gooren's research findings were not conclusive on the issue that a person's psychological sex was a

marker much less the definitive marker, it being claimed that further verification was required, and secondly that, as of then, no sufficient consensus existed amongst the experts within this field which would justify such a major shift. Dr. Breedlove's article in "Nature" was referred to in support. Thirdly every Contracting State enjoyed a margin of appreciation but did so particularly where the positive obligation aspect of article 8 was in issue, when, in such circumstances this doctrine should be fully respected by the deciding court.

The increasing number of judges who are now prepared to hold a violation of article 8 has been used by Mr. Shipsey SC on behalf of the applicant, as a foundation to argue that this progressive trend should have a powerful influence on this court when arriving at its decision on both the issues facing it. Though referring to a number of dissenting opinions in each case he particularly relies on the views of Judge Martens delivered in Cossey and those of Judge Van Dijk pronounced in Sheffield and Horsham. Judge Martens was of the view that the issues raised in Cossey should be considered as a human rights issues. If having brought one's physical sex, insofar as one can, into harmony with his or her psychological sex, the judge reasoned that the other requirement for the transsexual, in order to achieve any degree of well-being, was for that person to have his new sexual identity not only socially but also legally recognised, that is to be fully and in all respects honoured by law. The learned Judge referred to the view of the German Constitutional Court and at para. 2.7 of his dissenting opinion continued "The principle which is basic in human rights and which underlies the various specific rights spelled out in the Convention is respect for human dignity and human freedom. Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality. A transsexual does use those very fundamental rights. He is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far

as is humanly feasible, adapted to the sex he is convinced he belongs to. After these ordeals, as a post-operative transsexual, he turns to the law and asks it to recognise the fait accompli he has created. He demands to be recognised and to be treated by the law as a member of the sex he has won; he demands to be treated without discrimination, on the same footing as all other females or, as the case may be, males. This is a request which the law should refuse to grant him only if it truly has compelling reasons, for.... such a refusal can only be qualified as cruel. But there are no such reasons "

He continued by commenting upon the ever growing awareness of the essential importance of one's identity and of the growing tolerance and understanding of inter alia those who suffer

from transsexualism. He would have decided in terms of article 8, the Rees case differently and as would obviously follow would have also decided the Cossey case differently.

Seven of the nine judges who voted in favour of a violation of article 8 joined together to present what was headed a partially dissenting opinion. These judges were impressed by the fact that even in 1990, fourteen States from the Council of Europe had affected, admittedly in diverse ways, certain changes to help alleviate the distress and suffering of the post operative transsexual. They were equally impressed with the submission of "Liberty" in the instant case. Contrasting those developments with the lack of any action in the United Kingdom over the same period was a source of considerable regret to them. Though hesitating to accept the court's description as to the difference in medical science between that which existed at the time of Rees and in 1998, (see para. 160 above where para. 56 of the judgment is cited), their main quarrel however was not centred on the court's reluctance to accept as definitive the research of Professor Gooren but rather

"the court's approach fails to take into account the acceptance by the medical profession of gender dysphoria as a recognised medical condition that can be improved by gender reassignment surgery. "

This development they claimed led to a much greater societal tolerance towards individuals who suffered from this condition, a conclusion which they felt was endorsed by the willingness of doctors to recommend and carry out surgery and by many national health services underwriting the cost of such treatment. This main concern of theirs did not for its

existence, depend on there being a consensus or an agreement within the scientific community or on the fact that surgery cannot lead to a complete change in the biological sex. In their opinion respect for privacy rights should not depend on exact science. They were satisfied in light of the evolution of attitudes in Europe, towards the legal recognition of the post operative transsexual, that the respondent state in Sheffield and Horsham could not rely on the margin of appreciation as a continuing defence of existing laws. They therefore concluded that under article 8 the United Kingdom was obliged to amend its laws, so that, as they put it, the "post operative transsexuals no longer run the risk of public embarrassment and humiliation by being required to produce a birth certificate which records their original sex. "

legal recognition of the sex that in his conviction best responds to his identity. He went on to say that the right to self determination is the basis of several of the rights laid down in the Convention especially those under article 5 and under article 8. In addition this right was in his opinion a vital element of the "inherent dignity" which, according to the Preamble of the Universal Declaration constitutes the foundation of freedom, justice and peace in the world. He too highly regretted that the court had not used this latest opportunity to review Rees and Cossey and conclude positively in favour of a breach of article 8.

At present the domestic position and in that context the situation of the applicant appears to be as follows:-

Under Irish law a birth certificate is a document recording historical facts and events and is not available or designed for any other purpose. Secondly in this country there is no official system of "identity documents " or "civil status documents " which contain a record, capable of updating a person's current civil status or identity. Thirdly in our jurisdiction a person is entitled to change their christian and surnames as they wish and subject to some restrictions, which emanate essentially from the requirements of some professions, they can, without prohibition or formality, use their preferred names for all purposes. Proof of such a change is usually grounded on a statutory declaration or on a deed poll which is filed in the Central Office of the High Court. These acquired names are valid for all the purposes of legal

identification. Fourthly in the case of the applicant the following steps have been taken and achieved by her. On the 18th March, 1991, by way of statutory declaration she changed her christian name. On the 26th April of that year she received confirmation from the NUI that the following is an exact translation of the Testimonium of the conferring of her BDS on the 21st December, 1971, - it reads:-

"The National University of Ireland,

This is to certify that the degree of Bachelor of Dental Surgery was conferred on Lydia Annice Foy of University College, Dublin, one of the constituent colleges of the University, at a meeting of the University to confer degrees held in Dublin on the 21st of December 1971. "

On the 30th April and on the 30th May, 1991 she received a general medical services card and driving licence, respectively, in her preferred name and showing her preferred gender. On the 23rd August of that year she received a passport in like form from the U.K. authorities and though she undoubtedly had some difficulties in obtaining a similar passport from the Irish immigration office, nonetheless she achieved such a passport, valid for 10 years in February of 1993. Her entitlement to vote reflects on the polling card her current preferred identify. So whilst there remains a number of circumstances which require the production of a birth certificate these are now quite confined and are extremely limited. Examples were given in evidence that for a conferring in 1995, St. Patrick's College in Maynooth required details of her christian name as stated in her birth certificate and also when applying for a FAS course a copy of her birth certificate was demanded. It is quite difficult to understand the latter and of course it would be far more preferable if the former and all similar situations did not arise. Nevertheless in her daily interaction with persons, with services, with society generally and with the law, there remains only a limited number of circumstances in which a choice in this regard has to be made.

This latter observation is not in any way intended to communicate an opinion that the legislature is not free to enact such provisions in this area of law which are within its power to so do.

S. (supra), put the purpose of the Article in this way (at p. 335) "... the object and the nature of the legislation concerned must be taken into account, and that the distinctions or discriminations which the legislation creates must not be unjust, unreasonable or arbitrary and must, of course, be relevant to the legislation in question ". Finally it is also worth noting how Henchy J. described the article in Dillane v. Attorney General [1980] I.L.R.M. 167, where at 169 he said:

"When the State, whether directly by statue or mediately through the exercise of a delegated power of subordinate legislation, makes a discrimination in favour of, or against, a person or a category of persons, on the express or implied ground of a difference in social function, the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of. "

In light of these authorities and given the views expressed in the paragraphs immediately preceding, I am of the opinion that any difference of treatment between the applicant and a biological female is not in my view either unjust; invidious or arbitrary. Despite advances in surgery a male to female transsexual can never shed entirely, that persons male biological characteristics and likewise can never acquire, in many material respects, vital characteristics of the female sex. A difference therefore between a male to female transsexual and a biological male unquestionably exists. This difference in my view in the context of the core issues in this case justifies what is I feel claimed incorrectly to be an inequality of treatment with regard to birth registration as between such individuals. What difference of treatment there is, it should be pointed out, does not apply within male to female transsexuals as a group, or within female to male transsexuals as a group. In either of these groups if the post surgical transsexual was to seek the same rectification as the applicant does, the Register

General would respond in precisely the same way. Therefore I do not believe there is any breach of this article.

Once again many of the relevant considerations which arise under this heading are similar to those which have been raised in relation to the rights of privacy, dignity and equality. However there are some important additional factors when dealing with this right to marry. At present the applicant is legally married to a living female and has not sought a divorce or an annulment of that marriage. Therefore in accordance with existing law she does not have the capacity to remarry. It is this impediment rather than the absence of a corrected birth certificate which precludes her re-marriage. However I would not like to decide this constitutional point in such a way. It seems to me that marriage as understood by the Constitution, by statute and by case law refers to the union of a biological man with a biological woman. Re-echoing Hyde -v- Hyde Law Reports 1856, Mr. Justice Costello in B -v- R (1995) 1 I.L.R.M. 491 defined marriage as "... the voluntary and permanent union of one man and one woman to the exclusion of all others for life." As the result of Fifteenth Amendment of the Constitution Act 1995 and the Family Law (Divorce) Act 1996 the permanency aspect of marriage no longer applies. In T.F. -v-Ireland (1995) 1 I.R. 321 at 373 the court, in approving of the earlier definition of marriage given by Costello J. in Murray -v- Ireland [1985] I.R. 532 at pages 535-536 said .... "the Constitution makes it clear that the concept and nature of marriage which it enshrines are derived from the christian notion of a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship. " In this and in the neighbouring jurisdiction, (see Corbett -v- Corbett, supra) it is crucial for legal purposes that the parties should be of the opposite biological sex. Indeed article 12 of the European Convention on Human Rights is equally so predicated. All of its judgments above mentioned

confirm this. Accordingly in my view there is no sustainable basis for the applicant's submission that the existing law, which carries the impugned provision which prohibits the applicant from marrying a party who is of the same biological sex as herself, is a violation of her constitutional right to marry.

Finally and in any event, as with the other rights as asserted, this right to marry is not absolute and has to be evaluated in the context of several other rights including the rights of society. When so looked at I believe that for the purposes of marriage the State can legitimately hold the view which is espoused by and is evident from its laws.