Dr. Tanya Ní Mhuirthile:

I thank the committee for the opportunity to contribute to the debate on this important legislation. I begin by highlighting the importance of legal recognition. To be recognisable by the law is essential in order to fully participate in society. By way of illustration, I refer to a case which came before the Australian High Court in 1979 concerning the validity of a marriage between a biologically born woman and her husband who was born with an intersex condition. In other words, he was born with a body which combined both male and female biological traits. As marriage was defined under Australian law as the union of a man and a woman, the court held that Mr. C, being neither a man nor a woman, was incapable of marrying anyone. Where the law cannot recognise a person's preferred gender, that person may be excluded from the exercise of normal legal rights which he or she might otherwise expect to enjoy. The impact of that is enormous.

At present, the legal definition of gender is confirmed by the congruence of the chromosomes, gonads and genitals at birth. There are two aspects of this test, namely the biological fact of congruence and, second, the temporal aspect of the birth moment, which is deemed conclusive. This legislation proposes to enable those who either lack the congruence at birth or whose self-identity does not develop in line with their biological body to register an alteration in their legal gender and to have that change legally recognised. This is an important development and is to be welcomed.

That said, we are here today to discuss the proposals and consider how to improve upon them. In that regard, I have several constructive criticisms to offer, the first of which relates to age limits. It is proposed that access to the rights contained in the legislation be confined to those who are 18 years of age or older. This criterion does not respect the dignity of young transgender or intersex people. From the perspective of the young transgender person, it is important to note that such a person can, under section 23 of the Non-Fatal Offences Against the Person Act 1997, independently give legal consent to undergo gender reassignment procedures at the age of 16. To grant young transgender people the authority to decide permanently to alter their bodies in this way while refusing to recognise legally the result of that alteration is inconsistent from a policy perspective. Furthermore, it may be offensive to the newly inserted Article 42A of the Constitution on children's rights by failing to respect the right of children to form their own views and to have these views respected in line with their age and maturity. Young transgender people can either make these life-changing decisions or they cannot. Where such decisions are supported by parents or guardians, as alluded to by Dr. Ryan, to continue to refuse recognition is even less sound from a legal perspective and may breach Article 42 of the Constitution, which deals with family rights.

This age constraint is particularly restrictive of the rights of intersex children. Intersex can manifest at various stages throughout a person's life, whether at birth, childhood, puberty, in adulthood, or be discovered on autopsy. At present, all births must be registered no later than three months after the birth takes place. Where the existence of the intersex condition does not manifest until after this deadline, children may be stuck with a birth certificate that does not reflect their physical reality or the gender identity they subsequently develop. Such a situation was considered by the High Court in S v. An Bord Uchtála in 2009, which involved a child with an intersex condition who was the subject of a foreign adoption order. The birth certificate and subsequent adoption certificate noted that the child was female. However, upon closer medical examination when the child was brought back to Ireland, it was found that the specific intersex condition was more nuanced than originally thought and thus this child was more likely to identify as a boy. His parents sought to have the adoption certificate amended to reflect this reality so that he could participate fully in society as a boy, attend a boys' school, play hurling as opposed to camogie and so on. The Adoption Board refused the application as it considered granting such a request was beyond its authority. On judicial review, the High Court found in favour of the boy's parents and ordered the alteration of the certificate. Unfortunately, as this was an ex tempore judgment of the court, it is of limited precedential value and other families are not guaranteed as of right that they will secure new documentation for their intersex children.

By refusing to permit those under 18, or their parents or guardians on their behalf, to make an application for legal recognition in a gender other than that recorded on the birth certificate, the proposed legislation continues to discriminate against intersex children. Therefore, I recommend that the scheme be extended to permit applications by, or on behalf of, trans and intersex children and young people.

On 5 December last year, I appeared before the committee to advise it on this very matter in the context of the report of the gender recognition advisory group. On that occasion I criticised the recommendation that applicants would need evidence of a diagnosis of gender identity disorder in order to successfully ground an application. I noted that such a requirement would be contrary to the most recent statements of international human rights law on this issue. Those statements basically recommend that access to legal rights such as gender recognition be decoupled from medical treatment pathways. Effectively, recognition ought to depend upon diagnosis or other medical treatment. From that perspective, I welcome the fact that there is no overt diagnostic criterion contained in the proposed legislative scheme under consideration. However, that is not to say that the proposed legislation depathologises access to legal gender recognition by completely dispensing with the need for diagnosis. Rather, head 6 of the proposed legislation requires that an applicant produce a "statement from his/her primary treating physician, in a form to be prescribed by the Minister, which confirms that the person has transitioned/is transitioning to their acquired gender and that he/she [i.e. the treating physician] is satisfied that the person fully understands the consequences of his/her decision to live permanently in the acquired gender". In essence, applicants will require letters from their doctors confirming they are being or have been treated for a medical condition and that they understand the consequences of an application under this legislation. This is diagnosis in disguise. Yet it goes further than merely confirming diagnosis because the specialist is also required to state that applicants have sufficient mental capacity to fully appreciate the consequences of an application. In this way, the proposed legislation not only maintains the diagnostic criterion, but also obliquely reinforces the prejudice that trans people suffer from a mental disorder. This is at a time when the medical community is seriously considering removing the disorder aspect from trans diagnosis. Consequently, this requirement is considerably outmoded and I recommend that it be dispensed with in its entirety.

In my submission to the committee, I referred to the marriage criterion. The latter has already been covered by many previous speakers. In view of the time constraints involved, therefore, I will refer members to the comments I make on the matter in my submission. I would be happy to answer any questions they may have on the matter.