Oireachtas Joint and Select Committees

Thursday, 24 October 2013

Joint Oireachtas Committee on Education and Social Protection

General Scheme of Gender Recognition Bill 2013: Discussion (Resumed)

10:15 am

Dr. Fergus Ryan:

I thank the committee for inviting me to speak. My overall aim is to offer whatever assistance I can to ensure that the Bill is as strong as possible in upholding the dignity and rights of transgender and intersex people. There is both and legal and a social imperative for this legislation, which is to be welcomed. Ireland stands in continued breach of our international legal obligations, particularly under the European Convention on Human Rights. That this is so has been confirmed by the High Court in the Lydia Foy case, where a declaration of incompatibility was handed down. Currently, a person's sex for legal purposes is fixed for life by reference to biological characteristics that are present at the time of birth. Notwithstanding the lived reality of a person's daily life, Irish law treats the transgender person as being of the gender opposite to that in which the person is living and provides no facility to alter the legal gender to ensure congruence with the person's preferred gender.

In this regard, the law patently fails to respect the dignity of the individual, in a manner which makes the already precarious social situation of the transgender or intersex person even more challenging. While these people live their lives with enormous fortitude and bravery, both national and international research none the less underlines the extraordinary challenges they experience, including regular prejudice in the workplace and community. The failure of the law, as it currently stands, to provide formal recognition of the preferred gender thus places an already vulnerable category of people in a legal quagmire. Recognition would send out a very powerful signal that people in this situation are entitled by law to be treated with dignity and respect.

The scheme of the Bill contains much that is to be welcomed and represents a considerable advance on previous proposals for reform. In fact, it is more progressive in many respects - significantly more progressive in some respects - than equivalent legislation in many other European states. Nevertheless, there are several aspects which are of concern.

In regard to age requirements, the views and evolving capacity of the child should be acknowledged and respected, particularly in light of the recent referendum on children's rights. A young person aged 16 or over may, under section 23 of the Non-Fatal Offences Against the Person Act 1997, validly give an independent consent to surgical or medical treatment. Why then should he or she not be able to make a declaration under this proposed legislation? Moreover, in the case of children aged under 16, it is arguable that parents or guardians should be allowed to apply on the child's behalf. While I can foresee potential difficulties where the parents oppose recognition, there is no reason that a child should be excluded from the scheme where his or her parents are actively supportive and believe it is in his or her best interest. There certainly is potential for resolution by means of a court order, but it is surely neither appropriate nor proportionate to shut the door entirely to applicants aged under 18.

The position of applicants who are married and in civil partnerships is also a point of concern. The Bill effectively requires that any married or civilly partnered applicant who wishes to gain recognition must first terminate or annul the existing marriage or civil partnership. It is worth reflecting on the serious impact this will have on transgender people and their spouses who remain happily married. The first issue is that it is not immediately clear whether such persons can actually divorce, even if they wish to do so. The law requires that in order to divorce, a married couple must be living apart, with no reasonable prospect of reconciliation, for four of the previous five years. "Living apart" in this context requires a mental as well as a physical element; it is not just about living in separate places. Rather, it effectively requires that the parties are living separate lives in circumstances where at least one of them has mentally resolved that the relationship is at an end. Where the spouses are still happily married, I cannot see how they can feasibly establish that they are living apart. Nor will it be possible to show that there is no reasonable prospect of reconciliation. Annulment as an alternative remedy poses different but equally challenging problems, something on which I will be happy to elaborate if there are any questions.

The distress that will be caused to married couples and the impact on the constitutionally protected family of the applicant far outweighs any benefit this requirement may yield. At any rate, the single applicant requirement is arguable unnecessary. As Mr. Merriman pointed out, the validity of a marriage is determined by reference to the situation that prevailed at the time of the marriage itself. Thus, if the parties were respectively male and female at the time of the marriage ceremony, what happens after the marriage is celebrated should not affect its validity or essential character. Judged as of the time of the marriage, therefore, the marriage of a person who subsequently alters his or her legal gender remains a heterosexual one. As such, the single applicant requirement seems both disproportionate and unnecessary.

This Bill provides a useful opportunity to make discrimination on the basis of gender identity explicitly unlawful in the context of employment and the provision of goods and services and to ensure that all transgender people - not just those who are transitioning or have transitioned - are expressly protected from discrimination. The legislation also offers a good opportunity to amend the Prohibition of Incitement to Hatred Act 1989 to include gender identity and gender as grounds upon which incitement to hatred is prohibited. Lawyers, doctors and academics do not have a monopoly of wisdom in this area. It is important that Members of the Oireachtas should speak with and listen intently to those people with direct and daily experience of these issues, namely transgender and intersex people and their families. It is vital that the legislation reflects and addresses their concerns. While there is much to be welcomed in the Bill and it is certainly much more progressive than previous proposals and more progressive, too, than a great deal of what is in place in other EU states, there are nevertheless changes that could be made to make it the best it can be. I thank the Chairman and members for their attention.

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