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)

10:35 am

Mr. Marco Perolini:

On behalf of Amnesty International I wish to thank the committee for inviting us to address it on this issue. We are undertaking a project on human rights violations experienced by transgender people in Europe. More specifically, we are planning to publish a report in the coming months on this issue. Ireland will be one of the countries profiled in that report.

Many countries in Europe have adopted laws or practices enacting legal gender recognition for transgender people. In many instances, the procedures involved are lengthy and require adherence to criteria such as psychiatric diagnosis, medical treatments and single status. In many cases, forced compliance with such criteria violate the human rights of individuals who wish to obtain legal recognition of their gender identity. We welcome the steps Ireland has taken towards providing legal recognition of the gender identity of all individuals. These certainly represent an important step forward in guaranteeing international protection of human rights of transgender and intersex people. However, three key areas of the proposed scheme can be improved upon in order to better protect the human rights of transgender and intersex people. I will briefly comment on each of these and I am sure we will have time to discuss them following all of the presentations.

The first is the requirement under head 6 that a person must provide a statement from a physician in order to obtain a gender recognition certificate. International human rights standards, notably the Yogyakarta principles, argue for procedures providing legal gender recognition to be "efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned". We are extremely concerned with regard to the lack of clarity surrounding the criteria by which a physician will assess whether a person has transitioned or is transitioning as required under the proposed provision. We are also concerned that this requirement could be interpreted as requiring individuals to undergo medical treatment, such as hormonal or surgical procedures. In some instances in other countries, medical evidence for the purposes of legal recognition stems from the interpretation of loosely formulated laws or practices. This is the case in countries such as, for example, Norway and France. For this reason it is imperative - from a human rights perspective - that the eventual legislation should provide clear guidance with regard to what will or will not be required. In order to better comply with its human rights obligation, Ireland should be clear that legal gender recognition should be accessible to everyone - all transgender and intersex individuals - regardless of whether they want to or can access specific health treatments and without the requirement to obtain a psychiatric diagnosis. Forcing individuals to undergo medical treatment as a requirement to access legal gender recognition would lead to violations of several internationally protected human rights, including the right to health and to protection against cruel, inhuman or degrading treatment. Laws recently adopted or discussed in a number of countries and domestic case law have clearly decoupled the issue of legal gender recognition from the requirement to undergo medical treatment. I refer to countries such as Argentina, Germany, Malta, Sweden and Uruguay in this regard.

Our second concern relates to the requirement under head 5 that a person not be in a marriage or civil partnership when applying for a gender recognition certificate. Amnesty International regrets that the law in Ireland does not currently guarantee civil marriage equality for same-sex couples and fully supports the recommendation of the Constitutional Convention that this be changed. However, the current legal inequality regarding marriage should not be used to justify the curtailment of the rights of transgender and intersex people, by forcing them to choose between legal recognition of their gender identities and their existing marriages or civil partnerships. The latter would, in fact, qualify as State-enforced divorces and would violate the family rights of transgender and intersex people in Ireland. We, therefore, urge that this requirement not be included in the Bill.

Our third concern relates to the age restrictions included in the general scheme of the Bill. We are of the view that these restrictions should be reconsidered in light of the requirement on Ireland as a state party to the United Nations Convention on the Rights of the Child, which requires states to treat the best interests of children as a primary consideration in decisions affecting them. Children seeking legal recognition of their gender identity must be given the chance to express their views regarding what constitutes their own best interest and to have these views taken into account according to their evolving capacities. An individualised assessment of the situation of each child would, therefore, be more compliant with the requirements contained in the convention than would be the case with the current absolute restriction. Argentina's gender identity law takes full account of this principle by allowing minors to obtain legal gender recognition if both they and their parents or guardians consent to it. In Europe, countries such as Germany do not require any minimum age for accessing legal gender recognition.

We urge that the Bill, if passed, ensure that the human rights of individuals seeking legal gender recognition are respected and that individuals will not be forced to undergo medical treatment or conform to stereotypical gender norms in order to access legal recognition of their gender identity.

I thank the Chairperson for the opportunity to address the committee and I will be happy to answer any questions which members may wish to pose.


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