Dr. Tanya Ní Mhuirthile:

I have been asked to address the committee on the legal aspects of the introduction of gender recognition legislation. I reiterate that Ireland is obliged to do something to recognise the preferred gender identity of trans people as a result the High Court decision in Foy v. An t-Ard Chláraitheoir No. 2 from 2007. It was the recommendation of the gender recognition advisory group that legislation would be the most effective mechanism by which to achieve recognition. I am conscious of my limited time to talk so I will keep the critique brief but I am willing to answer questions afterwards.

The gender recognition advisory group report outlined six qualification criteria that must be met in order for an application for gender recognition to be successful. These are as follows: residency or Irish birth registration; a minimum age of 18 years; people in existing marriage or civil partnership are excluded; there must be evidence of a settled intention to live permanently in the recognised gender; the person must live for a minimum of two years, full-time, in the role before being recognised; and the person must have final diagnosis of gender identity disorder and relevant medical supporting evidence or have gone undergone gender reassignment surgery with medical evidence thereof or be recognised in an alternative jurisdiction. I will critique only three of these criteria.

The minimum age criterion is an oddity given that it is legal to consent to undergoing treatment for gender identity disorder at 16 years of age without parental consent. One can do it before the age of 16 with the consent of parents. Obliging people who go through a transition early in life, particularly in the case of intersex children, who may have been assigned a gender at birth that does not reflect their identity or subsequent bodily development, to live with incorrect identification document under the age of 18 years is particularly injurious when we live in a society where the vast majority of schools are single sex schools. This is recognised in the High Court in S v. An Bord Uchtála in 2009.

The more problematic aspects of the scheme are the two my colleagues referred to - the marriage and medical issues. To require couples to divorce where one party has transitioned subsequent to the marriage, in order for that person to be legally recognised in the preferred gender identity, is constitutionally unsound. Article 41.3.1° protects the institution of marriage. For divorce to be possible, according to the Constitution, a couple must live apart for four or five years with no reasonable prospect of reconciliation. This is not the case where marriage survives one spouse transitioning gender. For the trans spouse to be recognised, the couple must split up the family and perjure themselves in court in order to obtain a divorce so that the trans spouse is eligible to make an application under the proposed legislative scheme. This is particularly invasive to the rights of the non-trans spouse and any children of the marriage to remain members of the marital family. As an alternative, we suggest the legislation makes no mention of marriage or divorce. We recognise this could create an apparent anomaly where, post recognition, there would be what appears to be a same-sex marriage. However, we argue this is not the case. In law, the crucial time when the validity of marriage is assessed is the moment at which the marriage was entered into. We see this time and again in the case of nullity. The practice is to consider the situation of the individuals at the time the marriage was contracted. By analogy, if the person is 78 when he or she is discovered to have been underage at the time of marriage, it does not retrospectively validate the marriage. Similarly, we argue that in the case of trans marriages, both presented and were legally recognised as being of the opposite gender at the moment of marriage, they contracted a valid, opposite sex heterosexual marriage that continues to be legally valid.

The second issue is the medical evidence required by the gender recognition advisory group. This is either a diagnosis of gender identity disorder or evidence of having undergone gender recognition surgery. Previous examples of this diagnostic criteria can be seen in the UK Gender Recognition Act of 2004. When this was introduced, it was welcomed because it dispensed with the need for applicants to undergo any form of treatment prior to recognition. This represented best international practice at the time. Now, eight years later, it has become the subject of criticism. As legislation is confined to the specific diagnosis of gender identity disorder, it excludes a number of people who might need the rights contained in the legislation, such as intersex individuals, those born with bodies combining both male and female biological characteristics. Additionally, the medical diagnosis itself is under review and yesterday it was announced the wording would change so that gender identity disorder no longer exists as a medical condition and is replaced by gender dysphoria. This immediately invalidates the English legislation. It seems shortsighted to knowingly import an archaic diagnosis into Irish law. The requirements to have undergone gender recognition surgery is a throwback to exceedingly outmoded understandings of gender identity, which the UK Act was lauded for abandoning. It is impossible to access treatment without a diagnosis and so the requirement for intervention is worryingly retrograde.

Increasingly, international human rights discourse recognises the need to depathologise legal gender recognition to acknowledge that legal rights should not be contingent on medical treatment pathways. The current foremost example of international best practice in the area is the legislation introduced in Argentina last May, which simply enables an individual seeking recognition to complete a form outlining the preferred gender identity without any subsequent evidence or information. Thus, the person becomes the final arbitrator of the legal gender. This simplicity of the Argentinian scheme neatly avoids the potential pitfalls of the gender recognition advisory group's scheme. It is to this model that TENI suggests the Oireachtas looks in seeking a precedent for how to approach the matter.