He fought the law... and she won

Yesterday, Philippa, a board member of Transgender Equality Network Ireland (Teni), a lobby group, set out from the Garden of Remembrance in Dublin with fellow transgender people in the vanguard of the capital’s Gay Pride parade. She was celebrating the state’s abandonment of its Supreme Court appeal in Dr Lydia Foy’s case. After 13 years locked in litigation with the 63-year-old former dentist, Ireland effectively conceded last week that the Registrar General is duty-bound to record transsexuals’ new gender on their birth certificates.

While it did introduce a law after the High Court upheld Foy’s case enabling the issuing of passports recording changed genders, Ireland is among the last states in Europe where it is impossible to register a new gender on a birth certificate.

Last year’s renewed programme for government promised a gender-recognition law and Brian Cowen, the taoiseach, has promised that the legislation, being prepared by an inter-departmental working group, will be enacted before the summer recess.

The climb-down was joyously greeted as a milestone for the estimated 600 transgendered people in Ireland but, perversely, it has created another horror for Philippa. In order to obtain her new birth certificate, she will have to divorce Dorothy, because same-sex marriage is illegal, even under the Civil Partnership Bill going through the Oireachtas.

“We won’t do it,” she said, musing that she and Dorothy could find themselves embroiled in a landmark legal case for marital equality similar to the one fought by Katherine Zappone and Ann Louise Gilligan to have their Canadian marriage recognised.

“We’ll fight,” she said. “It’s unfair of the state to force people to divorce, especially bearing in mind the constitutional enshrinement of marriage. Besides, we’ve been told by lawyers that there would be all sorts of constitutional implications for our daughter.

“We get divorced and then get civilly partnered, and it raises issues about children, inheritance, succession, taxation. There are so many violent and abusive marriages — it can’t be right to force people who love each other to divorce.”

WHEN she fell in love with Dorothy in 1980, Philippa, who will not divulge her given Christian name “because that’s the past”, confided in her that she “didn’t feel like a boy”. Dorothy, she said, “was accepting”. Their 15-year-old daughter has no hang-ups about it as long as the parent she still calls “Dad” — in private — is discreet in front of her friends. Philippa began the transition from male to female five years ago. She applies a hormone patch to her skin every four days to increase her oestrogen in readiness for surgery in London next year. She had already begun changing her appearance gradually.

“I started wearing a little perfume into work. Then a little make-up, or shoes with a bit of a heel,” she said. After two decades turning up as a man in the Department of Justice, she was apprehensive the first time she wore a skirt to the office.

“I got a wolf whistle and a ‘you look brilliant’ when I walked in,” she smiled. “Then I sat down at my desk and everybody acted as if there was nothing different. I was almost — almost — disappointed. I believe I was the first person in my department to transition. Let’s just say, there were certain toilet issues at the start.”

Gender-identity disorder is a recognised psychiatric condition, though some transgendered people object to it being classified as a disorder. “They are no more prone to mental illness than anyone else,” said James Kelly, a psychologist whose private practice in Dublin primarily deals with transgender. “This isn’t something that these people are able to put aside. It’s there from when they’re three or four.

“We’re seeing more and more child patients. There’s a new emerging group aged 12 to 17, probably because of a growing awareness of the condition.” For many, the prescribed treatment is complete, irreversible gender-changing surgery in which the genitalia specific to one sex are replaced with the genitalia of the other sex.

While operations such as breast augmentation are done by the Health Service Executive, full-change surgery is not performed here. Under the Treatment Abroad Scheme, the HSE approved 14 patients to travel outside the state, mostly to Charing Cross hospital in London, for reassignment operations between 2005 to 2009.

“The HSE have been very good,” said Kelly. “They’re to be commended.” The HSE does not disclose prices paid, as it “could hinder obtaining value for money in the future”.

Diane Hughes, 54, who was born in Wales and lives near Macroom in Cork with Caroline, her wife of 34 years, sued the former Southern Health Board for the right to paid surgery in Britain. The case was settled out of court in 2001. She and Caroline, who have a son, have also decided they will not divorce in order to get a new birth certificate for Diane.

The legal position in Britain, even after the introduction of its Gender Recognition Act, would require them to do so. In Europe, 19 countries have legalised civil partnership but only six allow same-sex marriage: Belgium, the Netherlands, Norway, Sweden, Portugal and Spain. Iceland amended its law on June 11 to allow same-sex marriage. It comes into force tomorrow.

“The birth cert’s a fraudulent document. I don’t need it,” said Hughes. Asked if she encounters prejudice, she said: “There are some nasty people but most are fine. If I go into the city or to Killarney, I never get any reaction; I’m just a woman shopping. But the state is cruel. In Lydia’s case, they knew they were wrong all along.”

Lydia Annice Foy was born Donal Mark Foy in June 1947. After qualifying as a dentist, marrying and having two daughters, she was diagnosed with gender identity disorder in 1990.

She lost her job and underwent a judicial separation in 1991. She had surgery a year later and applied for a birth certificate in 1993 to record her female gender. The Registrar General’s office refused it.

In 1997, she sued. The case was heard three years later and judgment was delivered on July 9, 2002. Two days after the court rejected her application, the European Court of Human Rights ruled in the case of Christine Goodwin, a former bus driver in England, that the refusal to recognise her new identity breached her right to respect for private life and her right to marry.

Foy went back to the High Court and won her case second time round. The court order in her favour was made on Valentine’s Day 2008. “It was at a huge emotional cost to her,” said Michael Farrell, a senior solicitor with the Free Legal Advice Centre, which represented Foy. “She had gone through the turmoil of realising she was transgender and of deciding on transition. She had suffered the break-up of her marriage. She’d been isolated. She lost her job and hasn’t worked since. Some of the initial reporting was insensitive and hurtful. There’s a high rate of suicide among transgendered people.”

Farrell believes the estimated €1m cost of the Foy case is “grossly exaggerated” as it was handled by the Chief State Solicitor’s Office. The danger now, warns Martine Cuypers, chair of Teni, is that the public will assume everything is rosy because the state withdrew its appeal in the Foy case.

“Ireland is nominally fulfilling its obligations under the World Professional Association for Transgender Health protocols but there is only one endocrinology unit in the country issuing hormones to transsexuals, at St Columcille’s in Loughlinstown,” Cuypers said.

“There are economic issues for people having to travel abroad for surgery, though we accept that the small number in Ireland who need it would not justify providing the service here. What is worrying is the lack of professionals in Ireland to service the mental health aspect. There is no specialist in gender identity issues in the HSE and this causes certain anxieties, because referrals are necessary for surgery.”

Her own experience in Ireland has been good since moving to Dublin from the Netherlands five years ago. “Though Ireland is not used to people being transgendered, it has become quite a tolerant society,” she said.

PHILIPPA JAMES is hoping that Ireland will “lead the world” with its gender recognition law and that she can somehow remain married to Dorothy and still acquire a birth certificate registering her gender.

“My wife and I have suffered a huge amount,” she said. “There’s been a lot of tears. She married a man and now she’s married to a woman. None of it is of her choosing. Why should she be made to suffer more?”

The next generation is more open to gender change, she believes, like her daughter. “We go shopping together and she gives me advice. She likes my taste in clothes, so when I came back from working in Berlin yesterday I brought her a T-shirt. It says, ‘Daddy’s Little Girl’.”