Ms Noeline Blackwell:

I would like to share my presentation with my colleague, Yvonne Woods. We are very grateful for the opportunity to come before the committee and to have this discussion with it. We also appreciate a system which allows the scheme of the Bill to be discussed but we draw attention to the fact that where this has happened before and the Bill has come back into the Oireachtas for debates, the discussion has been limited on the basis that the committee has already covered it. We hope that this will be the first of two steps in dealing with this particular tricky Bill.

We circulated a submission in September 2013, which members will have seen, on the scheme of the Gender Recognition Bill 2013. We have also circulated our opening statement. I will skim through that now in the hope that we might be able to discuss any issues that arise when everybody has had a chance to speak.

FLAC has been dealing with this issue since 1997 on behalf of the person who, through no fault of her own, has been the longest-standing activist and campaigner in this area, Dr. Lydia Foy, who did not set out to be a campaigner but who sought recognition of her own rights. We have been doing this since 1997. Dr. Foy has been engaged in the process since 1993, some 20 years ago. The dates are significant. There has been litigation for 17 years and to this day Dr. Foy does not have a gender recognition certificate. In that time we have considered Irish law and that of other countries and we have dealt with colleagues who are here today, whom the committee met yesterday, and elsewhere.

We will, however, concentrate on the draft legislation. We are concerned that, as a human rights issue, people have access to the basic documents they need to be identified in their lives. That is part of the system of access to justice which is our core area. In addition to the 17 years of litigation and the 20 years since Dr. Foy first looked for a certificate, this week marks six years since the High Court found that Dr. Lydia Foy's fundamental human rights under the European Convention of Human Rights had been breached by not having a gender recognition certificate. The State appealed that decision but conceded in 2010, three years ago, that there was no appeal to take. That first declaration of incompatibility with the European Convention on Human Rights, that Irish law was not compatible with European human rights law, occurred six years ago and remains extant. On that basis the Gender Recognition Bill 2013 comes before the committee.

We want to pick up on four particular issues, three of which arise in the Bill. The fourth is absent from it. Before I turn to the areas of major concern, we welcome the fact that in the scheme the Bill will not require gender reassignment surgery or other specified medical treatments as a precondition of recognition, and that it will also cover the position of intersex persons, although that is not our area of expertise. Our first area of concern is forced divorce. Under head 5(d) of the scheme of the Bill, couples would have to divorce as a condition of recognising the transgender partner in their preferred gender. The State is on the horns of a dilemma on this point because however it looks at the problem, it is faced with the Irish constitutional and legal position of marriage. This applies only to those who are married and seek recognition of their preferred gender. It is a tiny number of people but nonetheless it is a real dilemma. The State either permits the marriage to continue, in which case there is a very limited principle being breached, that no same-sex couple can be married in Ireland, although we have arguments about that, or, if it goes down the route which it is going down, it is disproportionately cruel and inhumane and in breach of the position of marriage in the Irish Constitution to require people to divorce in order to recognise another fundamental human right. In facing this dilemma the State has plumped for a policy decision and this is where we think the committee discussion may assist the Minister and the Department in identifying what is the least harm that would be done.

In that connection we can point to what has happened in Germany, a country which does not have marriage for same-sex couples, and similarly Austria. Both countries faced the same dilemma and have permitted the marriage to continue on the basis that the couple was married at a time when everything seemed right and that it would be disproportionately in breach of other human rights to force the marriage to end, particularly in a country where divorce requires not just separation for four of the previous five years, but irretrievable breakdown of the relationship. Somebody is going to have to lie at some stage of this procedure. We have set that out in more detail in our submission. I will ask Yvonne Woods to deal with the question of the minimum age limit in the Bill.