Litigation- Ireland

The High Court has reserved judgment in a case in which it is argued that certain provisions of the European Convention on Human Rights, part of Ireland's domestic law since 2004, are in conflict with provisions of the Irish Constitution. Judgment, when handed down, may prove to be a fascinating examination of the interaction between the two.

The case is the second attempt by the plaintiff, a male-to-female transsexual, to obtain an order to the effect that she is entitled to be described as female on her birth certificate. In 2002 she sought an order directing the registrar of births, deaths and marriages, and the Irish state, to alter her entry in the Register of Births and change her official sex from male to female. The plaintiff, while still a male, had married and fathered children in the late 1970s but subsequently underwent a sex change in the early 1990s.

Her first attempt in 2002 failed as the High Court declined to make the order sought. While sympathizing with the plaintiff's situation, the court had no option but to rule that she had been born male, based on the medical and scientific evidence. The application had been opposed by the plaintiff's children and former wife who had argued that changing the plaintiff's sex on the official record would automatically render the marriage void which, in turn, had the potential to affect their inheritance and other rights.

The current action was taken by the plaintiff seeking relief identical to the 2002 case and relying upon subsequent developments: (i) the incorporation of the convention into Irish law in January 2004, and (ii) two decisions of the European Court of Human Rights which found that refusal of British authorities to grant fresh birth certificates to transsexuals infringed their rights both to marry and to privacy. The plaintiff asked the High Court to declare that Ireland was in breach of the convention by failing to provide for a system of registration that would allow her entry in the Register of Births to be converted from male to female.

The case was heard by the same judge who had ruled on the plaintiff's application in 2002 and who, in that judgment, had asserted that the issues raised were properly a matter for the legislature to resolve and invited Parliament to do so.

The plaintiff's former wife again contested the application and argued that an order in the terms sought would automatically declare the marriage void. This, in turn, would carry constitutional implications as it would mean that neither she, nor her children, would constitute members of a family, as defined in the Constitution. She pointed to the fact that a ruling that the plaintiff was legally female could have significant effects on both the inheritance rights of her children and on ongoing divorce proceedings.

Prior to the conclusion of the case, the plaintiff amended the reliefs she sought: she substituted a claim that she is entitled to a new birth certificate for her original claim that she is entitled to a declaratory order to allow her entry in the Register of Births to be changed.

The European Convention on Human Rights is being increasingly cited in argument in Ireland. Although its usage is not yet as prolific as in, for example, the United Kingdom, more plaintiffs before the Irish courts are seeking to rely on it. The right to privacy under the convention, for example, has already been cited twice this year in cases taken for infringement of privacy (for further details please see "Court Develops Privacy Rights in Police Leak Case" and "Will the Supreme Court Clarify Privacy Rights?").

However, the convention has not yet come into direct conflict with Irish constitutional law. This is partly because several of the significant convention protections tend to reinforce Irish constitutional rights. There is, however, scope for conflict and it is arguable that the present case provides an indication of the sphere in which such conflict might arise - that is, the area of family and personal rights. In some instances, it would appear that the Constitution and the convention are in tandem. An apt recent example is the refusal earlier this year of the European Court of Human Rights to allow a British national to use frozen embryos fertilized by her former partner to help her have a child. A 2006 case before the Irish Supreme Court concerning an Irish national on virtually identical grounds reached a similar conclusion.

The real test of compatibility of the convention with the Constitution may come when an Irish litigant attempts to rely upon a provision of the convention to assert a right that does not exist, or is not permitted, under the Constitution. Such a case might arise from the vexed issue of abortion in Ireland. At present, Irish nationals have limited abortion rights under the Constitution (although the Supreme Court has identified a right to travel to have an abortion). What will happen if an Irish woman attempts to rely upon, for example, the privacy protections in the convention? Will the Constitution be given precedence?

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