Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I get fully where the Deputy is coming from and I want this legislation to be inclusive. I want it to be trans-inclusive. I want a very clear message to go out from these Houses that this legislation is inclusive of transgender people. There would be unintended consequences to this, and Deputy Coppinger has correctly asked me to explain what those are. I will do that now. I suggest that either with a delegation of the health committee or without such a delegation I meet a representative group of trans people to discuss this with them between now and Report Stage. I also suggest amending the explanatory memorandum to the legislation to make it very clear that the legislation is inclusive. The legislation is inclusive but as our President said very recently, words matter, and I get that. When we put in words, we do not want to have unintended consequences that would entirely accidentally cause potential adverse consequences for trans people in accessing other services.

I very much and sincerely share the Deputy's aims and views on this but I cannot accept the proposed amendments. The definition of "woman" in the Bill means a female person of any age. It has always been my Department's policy position that a biologically female individual identifying as a male should enjoy the same rights as a woman for the purpose of this legislation. That is the policy intention and we should be very clear that nobody needs to change the Department's policy intention. It is the policy intention of this legislation, me as Minister and my Department. Section 18(b) of the Interpretation Act 2005 is of pivotal importance in ensuring that rights contained in legislation of a gendered nature apply seamlessly to trans people. It provides:

(i) A word importing the masculine gender should be read as also importing the feminine gender;

(ii) In an Act passed on or after 22 December 1993, and in a statutory instrument made after that date, a word importing the feminine gender shall be read as also importing the masculine gender;

The Constitution, the Statute Book and statutory instruments contain many gendered provisions; somebody told me there are more than 600 from relatively recent years. These are often in the context of providing protection to women in connection with pregnancy, childbirth or the elimination of gender-based discrimination. Cumulatively, these sources contain hundreds of specific references to women and each of these references to "woman" or "women" seamlessly include trans men where appropriate in the context by virtue of the operation of section 18(b) of the Interpretation Act.

Section 18 of that Act and its effective operation are of particular importance to trans men in the context of pregnancy, childbirth, related employed rights and entitlements, maternity leave etc. under the Health Acts. These statutes all refer repeatedly to women, mothers and motherhood without making specific reference to others to whom it is appropriate they would apply. Whether they should is a much broader piece of work but as of today there are many pieces of legislation that mention "woman", "women", "mother" and "motherhood" that apply seamlessly to trans men. It is vital they do to enable access to some services. With the Interpretation Act, trans men are in a legally effective way included in the scope of the legislation without the need for intervening legislation. That was the purpose of the Interpretation Act of 2005.

The proposal to define "woman" in this Bill to include a person whose preferred gender has been recognised via the 2005 Act would be a departure from the established and, it is fair to say, highly effective practice that ensures trans men can access services through legislation. My Department has received advice on this and I have spoken directly with legal advisers on the matter. It indicates that to define "woman" in the Bill would create significant risk, which is what I am worried about, that would have the potential to cast real doubt on other gendered provisions in other pieces of legislation. It could open the possibility of somebody arguing that, by implication, references to women or other gendered references in the Statute Book did not appropriately include trans people. This would be an obvious unintended consequence that nobody here would wish for.

There is a broader aspect to this and my colleague, the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty, is addressing the review of the Gender Recognition Act 2015, as Deputy Coppinger correctly mentioned. That review is ongoing and there will be a review clause in this piece of legislation. I will explicitly ensure that this is very clear in the explanatory memorandum, which would not have a legal consequence but would make it very clear to people that this legislation is trans-inclusive. The legislation is today trans-inclusive and there is no legal doubt about that. I take the point that words matter and the Deputy wants it to be very clear that the Act will be inclusive. I would love to be in a position to say today that we will include "pregnant person" in the definition. None of us has the luxury of doing so while ignoring the legal advice indicating that I would be causing a problem for trans men in doing so if they are to continue accessing other services that they can correctly access today. That is the risk.

I am happy to engage between now and Report Stage with Deputies Coppinger, O'Reilly and other Deputies who have raised this. I am happy to further tease out what I have articulated and meet the representative groups, which would be important. I want them and the people of Ireland to know - nobody should be in any doubt - that this legislation is inclusive in its provisions for trans men. Unfortunately, what seems like a relatively simple thing in a legislative process could have unintended consequences. It is for those reasons and with a very heavy heart that I am not in a position to accept the amendments.