Averil Power (Fianna Fail) | Oireachtas source

I thank the witnesses for their presentations and the written submissions we read in advance of the meeting. A very strong case has been presented on the various issues, but especially on the fact that the forced divorce provisions are not only legally unnecessary but could be in breach of the Constitution and the European Convention on Human Rights, ECHR. I read Dr. Fergus Ryan's paper in advance of the meeting and we discussed the issue. The point has been well made about how the provisions are arguably disproportionate based on the German precedent which looks at not only its constitutional context but the same European Convention on Human Rights responsibilities as we have. It was decided in that context on the basis of proportionality. A strong argument has been made by the Equality Authority, FLAC and Dr. Fergus Ryan from a constitutional point of view. The Council of Europe Commissioner on Human Rights has written to us on that point. In addition, there was the decision of the German constitutional court.

That makes me even more unhappy with the lack of engagement from departmental officials yesterday on the legal issue. The officials are in the Gallery and I appreciate that they are listening to this meeting. I hope the Department will reflect on the matter. I accept that when we had representatives from the Department at yesterday’s meeting they were not in a position to engage on the issue but it is essential that we would bring the Department back again at a later point to engage. Yesterday, we were simply given a one-line explanation - that there is a constitutional context for the existence of the forced divorce provisions. It is quite clear from the testimony we have had today that there are incredibly strong constitutional arguments that the legislation is completely repugnant not only to Bunreacht na hÉireann, but also to the ECHR as well. It would be bizarre for us to go through two days of hearings and a consultation process on the legislation and not to engage on that legal point and not have the Department discuss it with us. That is not good enough. It makes a mockery of the committee not to engage on such a significant issue. I make a request to the Chairman in that regard. We can discuss later among members that we should invite the Department back to engage on the issue.

The point has been well made about age. The suggestion was made yesterday that 16 year old transgender people will be 18 someday and perhaps they could wait until they are 18. Sadly, that is not always the case because the rate of suicide among young transgender people is incredibly shocking. A US study found that up to 50% of transgender youths will have made at least one suicide attempt by the time they are 18. That is the context in which we are examining the legislation. Yesterday, we heard about the practical, day-to-day struggles people have in terms of participation in the education system and how impossible that makes life for some and why children drop out of school because of the situation. The age issue is crucial in the legislation because one is talking about incredibly vulnerable young people. We have an opportunity to get that right. What we are being asked to do is very simple. The suggestion about temporary certificates, as raised by Deputy Ó Snodaigh, gets around some of the issues. I agree with the point made about the acceptance by parents that surgery is in the best interests of their children. Sometimes parents refuse operations that are important for their children and the courts have upheld their right to do so. We give them responsibility in that regard and if parents agree that their child should be allowed to have their self-identified gender recognised, it is crazy that the State would interfere with that. Perhaps the temporary certificate is a way to get around that for younger people. The age of 16 is generally the age of legal capacity. Do the witnesses agree with the suggestion that from the age of 16 upwards a young person should be able to make a decision in their own right but that before that, perhaps a temporary certificate with the permission of a parent is the best way to address the matter? That deals with the issues raised by some speakers yesterday on concerns about regret. We all have regrets about marriage and other long-term decisions. Negative equity, which is a 35 year commitment, is one that people regretted quite soon afterwards. One cannot make legislation on that basis and the fact that someone might regret it. Again, the vast majority of people who have a transgender operation and have their gender recognised do not. Perhaps a temporary certificate might be a way of getting around the issue in respect of younger teenagers.