Oireachtas Joint and Select Committees
Wednesday, 23 October 2013
Joint Oireachtas Committee on Education and Social Protection
General Scheme of Gender Recognition Bill 2013: Discussion
I draw witnesses' attention to the fact that, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given. They are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable. I advise witnesses that the opening statements they have submitted to the committee will be published on the committee website following this meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or any official by name or in such a way as to make him or her identifiable.
The matter we are discussing today is the general scheme of the Gender Recognition Bill 2013. The general scheme was published last July by the Minister for Social Protection, Deputy Burton, following Cabinet approval. It was referred to the committee for its consideration. In order to assist the committee in considering the proposed legislation, members sought the views of interested individuals and organisations. Ten written submissions were received. To enable the committee to develop its understanding of the key issues identified in the process, it decided to hear evidence from key individuals and groups on the matter. We could not invite everybody, but invited organisations and individuals with long-standing expertise in the area. In the first of the hearings, which is today, we will hear from the Department of Social Protection, Transgender Equality Network Ireland, TransParenCI, BeLong To, LGBT Noise and Professor Donal O'Shea.
Tomorrow we will have a similar arrangement. We will have six witnesses and the meeting will start at 10 a.m. We will not be able to do all our business today and will have to continue it tomorrow. We must be fair to the witnesses who appear tomorrow. I aim to finish the meeting at 3.30 p.m. because the room is booked only until then. I ask everyone to keep to the time limits. At 2 p.m. Senators may have to leave because the Taoiseach is addressing the Seanad today. Over the two hearings, however, we will hear from the Senators. I invite Ms Simonetta Ryan to contribute on behalf of the Department of Social Protection.
Ms Simonetta Ryan:
I thank the committee for the opportunity to attend to brief members on the general scheme of the Gender Recognition Bill 2013. This is a very important Bill to provide for the solemn recognition by the State of a person's acquired gender for all purposes. As members will note from my presentation, the provisions in the Bill contain some very significant advances on previous proposals, particularly in regard to the validation process. In summary, the provisions in the Bill seek to be respectful to all concerned, to be prudent, to be practical and to preserve the integrity of State records. This presentation will set out the background to the preparation of the legislation, outline the purpose of the Bill and summarise its provisions.
With regard to the background, the lack of legal recognition for transgender persons is a significant and long-standing issue. The High Court declared in 2008 that the State was in breach of its obligations under the European Convention on Human Rights because it did not have a process to legally recognise the acquired gender of transgender persons. The interdepartmental gender recognition advisory group, GRAG, was established in 2010 to advise on the legislation required to give legal recognition to the acquired gender of transgender persons. There is a commitment in the programme for Government that transgender people will be provided with legal recognition. In July 2011, the report of GRAG was published and the Government decided legislation would be drafted in line with its recommendations. Since then, and building on this report, the Department of Social Protection engaged in a significant amount of consultation and research during the preparation of the legislation. We have sought and considered the views of a range of organisations and individuals with experience and expertise in this area. These include transgender persons and their representative organisations.
While the Bill is in keeping with the general structure of the GRAG recommendations, it differs in a number of key aspects, which I will explain.
Following Government approval, the general scheme of the Bill was published in 17 July 2013. This legislation will give legal recognition to the acquired gender of transgender persons. Formal legal recognition, through the issuing of a gender recognition certificate by the Department of Social Protection, will mean that the person's acquired gender will be fully recognised by the State for all purposes, including the right to marry or to enter a civil partnership in the acquired gender and the right to a new birth certificate. The legislation will allow for applications from people with intersex conditions should they wish to apply.
I will outline the main effects of the legislation for those wishing to have their gender recognised. The Bill will provide for persons aged 18 and over and who are not married or in a civil partnership. The person will be officially legally recognised by the State as being of the acquired gender from the date of the decision to issue the gender-recognition certificate. The recognition will be for all purposes, including dealings with the State, public bodies and civil and commercial society. The person whose acquired gender is recognised will be entitled to marry a person of the opposite gender or enter a civil partnership with a person of the same gender. The decision will entitle persons whose births are registered in Ireland to a new birth certificate that shows the acquired gender and new names, if names are also changed. Similarly, for those whose births are registered in the foreign birth register maintained by the Department of Foreign Affairs and Trade, the decision will entitle them to a new foreign birth registration certificate that shows the new gender and new names, if names are also changed. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.
I will now summarise the main provisions of the Bill. Heads 1 to 3 are standard provisions dealing with the Short Title of the Act, commencement orders, definitions of terms used in the Act and the power of the Minister to make regulations and to give effect to the Act. Head 4 provides that the Minister for Social Protection shall be the decision-making authority in regard to granting approval for gender recognition certificates. The Minister shall issue the certificate once the application meets all the qualification requirements.
Head 5 sets out the conditions that a person is required to meet in order to qualify for a gender recognition certificate. The person must meet one of three criteria: the birth must be registered in Ireland; one must have become an Irish citizen by having one's birth registered in the foreign births register maintained by the Minister for Foreign Affairs and Trade; and one must be ordinarily resident in the State. One must also be at least 18 years of age on the date of the application and must not be in an existing marriage or civil partnership. In addition, one must meet the evidential requirements set out in head 6.
In respect of the age limit, the Government, following consideration, decided that a minimum age of 18 should apply. This is based on the recommendations made in the GRAG report. The requirement that applicants for gender recognition must not be in an existing marriage or civil partnership was also considered by the Government.
The requirement that applicants for gender recognition must not be in an existing marriage or civil partnership was also considered by Government and it was decided that due to the constitutional context, this current legislation could apply only to persons not in an existing marriage or civil partnership.
Head 6 addresses the evidence which must be supplied by the applicant to demonstrate that he or she meets the qualification requirements. This includes a certificate from the register of births or from the foreign births register, proof of ordinary residence in Ireland and proof of identity in a form to be prescribed by the Minister. The GRAG report had proposed that the person seeking recognition of his or her required gender would be required to make an application to a specially established expert panel, or gender recognition panel, which would examine the evidence and make a decision on each application. Even in the couple of years since that report was published, thinking has developed, as have health care and related supports. Real concerns were expressed by transgender people and others about the role of an expert panel in validating applications. The Government has now decided that a panel will not be required. Instead, there will be a declaration and validation process administered by the Department of Social Protection. The aim is for a more progressive and dignified process which protects all concerned and ensures that the registration process will be robust. It will be based on a statutory declaration to the Department by the person that he or she intends to live permanently in the acquired gender and this must be accompanied by a supporting letter of validation from a medical practitioner who is treating the person. This letter will be short, in a standard format and will simply certify that the person is transitioning or has transitioned to the new gender. The legislation will specify the type of medical practitioner providing the supporting letter. He or she will be required to be registered on a specialist register maintained by the Medical Council and I envisage that the specialties specified will be endocrinologists, psychiatrists and paediatricians. The legislation will also require that the medical practitioner is practising in the field of care and treatment of transgender and intersex people. Under this new approach the application process will not require details of a person's care, including medical history or confirmation of a diagnosis. Nor will it require that the person has lived in the acquired gender for a specific period of time after transition. These are both significant changes to the original recommendations.
The GRAG report stated that the position of intersex people needed more research and was beyond the scope of the medical expertise available to it. Therefore, it did not make any recommendation on the inclusion of intersex persons in this legislation. The initial intention of the process, to include a panel and a medical diagnosis of gender identity disorder, known as GID, which no longer applies, would not have facilitated the inclusion of intersex persons. However, the new model proposed in the general scheme of self declaration plus validation by a medical practitioner practising in the field would facilitate intersex persons being included under the scope of the legislation and allow them, if they wish, to apply to be recognised in the appropriate gender.
Head 7 deals with applications from persons who have already had their acquired gender recognised in another jurisdiction. Head 8 provides for the issuing of a gender recognition certificate by the Minister for Social Protection once the applicant has met the qualifying conditions. Head 9 deals with the effects of gender recognition and provides for the fundamental principle of the legislation, which is that once a gender recognition certificate is issued to a person, the person's acquired gender is recognised. Heads 10 to 16 deal with the establishment of the gender recognition register and the role of the registrar general in the process. The register's purpose is to facilitate new birth registrations of persons who have been issued with a gender recognition certificate. The register will not be open to public inspection or search. It is envisaged that the process will operate as follows: the applicant applies for a gender recognition certificate and, if successful, will be notified accordingly by the Department of Social Protection. The person will also be advised that the general register office will be in contact regarding the registration in the gender recognition register and the issuing of a new birth certificate. In order to facilitate this, a copy of the gender recognition certificate and the required particulars for the registration shall be sent to the registrar general. As part of the process of the registration in the gender recognition register, a link will be made between that entry and the corresponding original entry in the register of births or adopted children. This link shall be maintained in a confidential manner. Copies, certified copies or certified extracts of entries in the gender recognition register shall not be identifiable as being from that register as opposed to being from the register of births or adopted children. However, it should be noted that absolute confidentiality in relation to the register is not feasible as birth certificates are public records. While it would be possible to have some system for blocking the issuing of the original birth or adoption certificates, and this is provided for in the heads of the Bill ---
If I can just stop Ms Ryan for a moment. I ask that she conclude her opening statement because the time allowed originally was five minute and we are now at 10 minutes. I ask that she summarise the remainder of her presentation.
Ms Simonetta Ryan:
Head 17 provides for the right of appeal by a person whose application has been refused, head 18 provides for the correction of the content of a gender recognition certificate, while head 19 provides for the revocation by the Minister of a gender recognition certificate if the person did not meet the qualification criteria at the time. Head 20 makes it an offence to knowingly provide false information. As I said earlier, formal recognition is for all State purposes. A number of these heads could be described as fail-safe heads, to provide for contingencies that may arise. Head 21 deals with parenthood and provides that a change in a person's recognised gender shall not change the responsibilities of that person as a parent. Heads 22 to 24 deal with matters of succession, trustees and personal representatives. I will not go into detail on those now. Head 25 provides for gender specific criminal offences and provides that a person can be prosecuted, if it arises, for sexual offences specific to their original gender, committed post-recognition or the other way around, pre-recognition. Head 26 covers participation in sporting activities.
The general scheme of the Bill does not include specific provisions relating to equality for transgender persons as discrimination on the basis of transgender is already prohibited on the gender ground under the existing legislation. However, we have been liaising with the Department of Justice and Equality and the Office of the Attorney General to determine whether the equality legislation should be amended to explicitly prohibit discrimination against a transgender or intersex person.
Ms Sara Phillips:
Good afternoon everyone. I will start by thanking the Minister for Social Protection, Deputy Burton, for progressing this issue with the publication of the draft heads of a Bill and for referring it to this committee for consideration. I would also like to thank Deputy Tuffy for inviting us to speak here today. I thank the committee members for their careful consideration of the issues that will be raised over the coming days.
In May of this year, the Minister for Justice and Equality, Deputy Shatter, addressed a conference entitled A Europe of Equal Citizens hosted as part of the Irish EU Presidency. The Minister's speech dealt with the ways in which legislation affects the everyday lives of communities. He spoke of how legislation, justice bodies and society as a whole must work effectively and responsibly to meet the needs and the rights of citizens. In the past, successive Irish Governments have failed to provide true equality, often having to be dragged through the courts to do the right thing. The Minister's speech was a true reflection on this history. In fact, Dr. Lydia Foy first asked for her birth certificate in 1993, 20 years ago and it has been six years since Ireland was found in breach of its positive obligations under Article 8 of the European Convention on Human Rights.
Legislating for gender recognition is an opportunity to do the right thing. Transgender people in Ireland experience a significant level of marginalisation and stigmatisation. Our community faces some of the highest levels of discrimination in employment, education and health care, which relegates many of us to the fringes of society. This Government has an opportunity to significantly improve the everyday lives of the transgender community with the immediate introduction of inclusive, progressive gender recognition legislation that is based on human rights principles. This will also send a clear message that Government sees transgender people as valuable, contributing members of Irish society. During the course of these two days we implore the committee to seriously consider the needs of the community this legislation proposes to serve, the Irish transgender community. It is imperative that this committee and those legislating listen to these voices and suggest amendments to the legislation that reflect our real lives.
The draft heads of Bill is a significant step forward from the GRAG report from 2011 and we commend the Department of Social Protection on all of its work in this area.
However, while it provides some improvements, there are still significant challenges with the proposed legislation that will infringe on the rights, privacy and dignity of the trans community. In consultation with the trans community and their families, we have a summary of key issues we ask the committee to consider.
First, on a physician's statement attesting to identity, the proposed requirement that a primary treating physician shall confirm the person has transitioned or is transitioning to their acquired gender will be onerous for many members of the trans community. However, the physician's statement model means that access to a gender recognition certificate is still based on interventions by medical professionals. There are not many experts in this area in Ireland which puts this process in the hands of a few practitioners and, hence, creates a panel. The use of the term "transition" excludes intersex persons whose bodies simply develop naturally. The same language also infers medical treatment of hormones or surgery, and thus may be even more restrictive than a criteria of diagnosis, which would not require any physical intervention. Some trans people may not be able to undergo a medical transition due to age or an existing medical condition that prevents treatment.
Appearing before the Oireachtas Joint Committee on Health and Children in July 2013, Dr. Philip Crowley, Health Service Executive, national director of quality and patient safety, stated:
The HSE endorses a gender recognition process which places the responsibility for self-declaration on the applicant rather than on the details of a medical certificate/diagnosis. In doing so the emphasis is placed on the process of legal recognition of that self-declaration as opposed to the legal recognition of the medical certificate and/or diagnosis. The HSE considers this process to be simpler, fairer, pragmatic and may be easier to legislate for as it takes account of both transgender and intersex people with differing backgrounds and contexts.The uncoupling of health and legal rights is being called for in human rights discourse in Europe and beyond. The Department of Social Protection has received letters from trans health experts across the world. They state unanimously that appropriate trans health care is vital and that legal gender recognition is a human right and should have nothing to do with medical care pathways.
I sit before the committee as a proud Irish woman with a transgender history. In all aspects of my life, I am female. I am an active member of my family, my community. I am a taxpayer, employed as a consultant in the construction industry. Legal recognition of my gender identity should not be bound to proof by a third party. We, as individuals, are all arbiters of our own gender identities. TENI, Transgender Equality Network Ireland, recommends that each person's self-defined gender identity should be fully respected and legally recognised by the State. TENI recommends adopting the existing and robust model of declaration as utilised in the deed poll process.
Only people who are at least 18 years of age will be entitled to apply for gender recognition. TENI recommends setting the age for applying independently at 16 years or older and allowing parents and guardians to apply for legal recognition on behalf of people under the age of 16 years.
Only people who are single will be eligible to apply for gender recognition. Both at the international and European level, human rights discourse affirms that divorce should not play a role in the legal recognition of gender identity. In Ireland, there are families that exist where one spouse has transitioned. Despite adversity, these individuals have stayed together and will now be forced to choose between their families and the legal recognition of their true identities. Article 41 of Constitution is supposed to guard against this.
Trans people are vibrant members of society. We belong to families. We are parents, children and siblings. We are active members of our communities. We work and go to school, we pay taxes and we are proud of our country. We agree with the Minister for Justice and Equality, Deputy Shatter, that it is time legislation speaks to the needs of the community it serves. Now is the time to introduce legislation that provides the trans community with the possibility of leading private, dignified and respectful lives as active members of society. It is time the trans community was allowed to step out from the shadows. We ask the committee to carefully consider the issues we raised and take an active part in suggesting amendments to the heads of the Bill.
Ms Catherine Cross:
TransParenCI is a support group for families and parents of transgender people. I am the mother of a transgender child aged 16 who is currently in fifth year at secondary school. He faces all of the normal challenges of being a teenager which are compounded by being transgender. While my son is doing well at school and is accepted by his peers, this is due in part to the fact he is of strong character and, partly, because the school he attends has been very understanding of his situation. The school, however, is in no way obliged to acknowledge his preferred gender. He is totally at the mercy of their discretion and of their personal feelings and beliefs.
I understand other transgender children have not been so lucky. Many transgender children feel the need to hide who they are in school. Others cannot hide and, due to lack of acceptance, become isolated and, therefore, leave school early.
My son recently completed transition year in which he had to partake in many gender-based activities such as discussions on personal hygiene and contraception advice given to groups separated by their gender. He found this awkward and opted not to partake of them at all. He was facilitated by the school but again it was at its discretion.
His female name still continues to be called on the roll which is a constant reminder not only to him but to his peers that he is different. He will of course be applying for courses shortly through the Central Applications Office and registering for his leaving certificate examination, all of which will be applied for in his female gender. This will, unfortunately, follow him through to college where he will have to explain his situation to a new set of people.
The formal education system plays an important role in determining what life chances are available to us. It is important everyone gets the opportunity, or more importantly the equality of opportunity, to engage with the education system. Education is an accurate predictor of future incomes and quality of life. The longer people remain in the education system, the more education and qualifications we obtain. It is therefore imperative that everyone has an equal opportunity to access the system. If a transgender child applies to an all-boys school, he may be refused entry because the birth certificate states he is in fact female. Similarly, schools are not obliged to provide suitable changing facilities for our transgender students. They often simply do not know what to do about it. Without proper legislation in this area, schools have no guidelines. Very often personal beliefs and prejudices become the school’s path of action. Through amending this legislation, to include those under 18, the Oireachtas can remedy this situation. Accordingly, the education system and service providers can educate themselves and put clear guidelines in place.
It has been accepted by the HSE that transgender children between 12 and 18 years will be able to access health care on the basis of need. Without accompanying gender legislation, they will carry conflicting documents and will, therefore, be incorrectly identified and subject to further discrimination. The Ombudsman for Children clearly advises the current proposals will not operate in children’s or young people’s interest nor vindicate their rights.
I understand the need to safeguard young people under 18. This is possibly the thinking behind excluding them from this legislation. However, this is grossly underestimating the parents of these young people and their ability to safeguard their interests at all times. I cannot imagine that any parent would consider changing the gender of their child’s birth certificate without having explored every other avenue first. The Argentinian and Maltese Governments have already acknowledged this and included their children in their recent gender legislation. Does that imply they are better suited to safeguard the interests of their children than we are?
This legislation has the ability to enhance and make a real difference in the life of my son. It will allow him to participate in society feeling valued and allow his many other attributes to shine through. Transgender is part of who he is, but it is not what defines him. Please allow him to transition to adulthood with a little more dignity.
Mr. Andy Mannion:
I am a young transgender man and peer educator with BeLonG To youth services, which is the national youth organisation for lesbian, gay, bisexual and transgender young people. Founded in 2003, we are funded by the Department of Children and Youth Affairs, the Department of Education and Skills and the HSE’s national office for suicide prevention. As well as direct youth services, we are also engaged in national policy, training and awareness-raising, especially related to tackling homophobic and transphobic bullying in schools.
We very much appreciate this opportunity to speak to the committee. Our comments today are based on our work over the past ten years with the growing numbers of transgender young people. In 2012, BeLonG To’s national network of LGBT youth services provided individual and group support to 47 transgender young people throughout Ireland, including 28 in Dublin. So far in 2013, we have provided support to 42 transgender young people in Dublin alone.
BeLonG To strongly welcomes the Government’s introduction of legislation to legally recognise the preferred gender of transgender people. Although we agree with TENI’s broader recommendations, BeLonG To’s comments are focused on one topic, namely, the age criteria for gender recognition. BeLonG To is very concerned the blanket exclusion of those under 18 from the gender recognition Bill contravenes the spirit of Irish commitments to the rights of children. It will also expose transgender young people to an increased risk of mental health difficulties and bullying and reduced educational attainment and school completion. Transgender young people have told BeLonG To it would be too painful to wait until they are 18 to apply for gender recognition. Significantly, they fear it would set in stone the very unwelcome climate they face in schools. For example, transgender youth are told to hide their identities, are not allowed to use their preferred pronouns or names, and are not allowed to wear the uniforms or use the toilets or changing rooms which reflect their preferred gender.
Further to the recommendations in our submission to the committee, BeLonG To strongly welcomes the advice of the Ombudsman for Children on the gender recognition Bill. The Office of the Ombudsman for Children completed a thorough review of international and domestic law and concluded the exclusion of those under 18 would not be in keeping with the UN Convention on the Rights of the Child, the European Convention on Human Rights or the Irish Constitution. In paragraph 1.6 of its advice, the Office of the Ombudsman for Children states the gender recognition Bill as drafted is unlikely to safeguard children. We also concur with its advice the age criterion be removed from the Bill; parents or guardians be enabled to apply for gender recognition certificates on behalf of their children; and young people over the age of 16 be enabled to apply for gender recognition certificates on their own behalf.
Ms Leslie Sherlock:
I am a transgender ally, activist and educator with LGBT Noise, which is a non-party political, voluntary, independent group, and we thank the committee for this opportunity. However, the committee should not be listening to me and it is an injustice the panel is not exclusively comprised of transgender and intersex people. They are the only experts on their identities and experiences. They are one of Ireland's most marginalised populations and it is shocking and insulting they have not been properly involved in this process to date, which is solely about their rights. Not only have transgender people not been sufficiently involved, but their concerns remain unaddressed in the heads of a Bill which, however unintentionally, is demeaning to this group of already disenfranchised people
When we are born a cursory glance is taken at our genitals and we are assigned a sex that dictates our path for life. We are categorised as either male or female in every interaction. Toilets, schools, clothes, toys, social roles and legal rights are all distinguished by gender, something most of us never question. We are all assigned a sex at birth, and we all have a gender identity, which is an internal sense of gender which may or may not correspond with our anatomy. Our gender identities are individual and personal and we all have one. Each one of us is the most qualified expert on our own gender identity.
This legislation is about gender identities. It is a way to legally reflect a person's internal sense of gender when it does not fit the norm. Simply put, anyone who has ever questioned the sex he or she was assigned at birth might look to avail of this legislation. Individuals hold all the knowledge of their gender. Gay and lesbian people do not need a doctor to confirm their identity when entering civil partnership. Marriages, drivers licences, passports or any legal function do not require medical confirmation. We are the experts on our own identities.
With all due respect to the medical profession and all it undoubtedly does for transgender and intersex people, requiring a physician's statement to confirm a transition is stigmatising and degrading. It implies individuals are not experts on their experiences and unnecessarily involves the medical profession in what is solely a legal issue. What is more, the concept of transitioning does not apply to all, and in particular intersex people do not transition. Many will be unfit for hormones or surgery due to medical or age contraindications, while others simply do not want a medical intervention. Their bodily integrity and right to determine their own identity needs to be upheld.
The specialty group of medical expertise on this issue in Ireland is tiny and undoubtedly has a vested interest in arguing for the involvement of the medical profession. Surgeries and hormones do not determine a person's identity. If someone does not medically transition or does not wish to engage in medical procedures his or her gender identity is still valid. Gender recognition is about legal rights and self-determined identities. It has nothing to do with medicine. Other jurisdictions have made moves to delink the medical from the legal and this has been recommended by the former Council of Europe Commissioner for Human Rights and by the world professional association for transgender health.
Gender recognition is a process with regard to birth certificates. It should be as simple and straightforward as any birth, death or marriage registry. The heads of the Bill propose the Minister for Social Protection as a decision-making authority. This will create an unnecessary layer of bureaucracy and contribute to the sentiment that transgender people are not the experts on their own identities. We recommend the entire process be put under the Registrar General who, it is envisaged, would maintain the gender recognition register. This would be the least expensive, most simple and most humane option.
The heads of the Bill completely ignore people under the age of 18. Transgender youth face bullying and discrimination constantly. Is it right to legislate to put these vulnerable young people in a situation which increases their marginalisation? Ms Ryan stated intersex people are included in the heads, but the language is unclear and it excludes by the language of transition. Many people enter marriage before realising their transgender identity. Despite the odds, some of these marriages remain loving and supportive. The requirement that an applicant is single effectively forces divorce and puts people in the impossible situation of choosing between their family and their gender identity. Our Constitution's special protection of marriage seems not to be extended to one of society's most marginalised groups.
The heads propose prohibiting transgender people from sport. Regulation of sport is not a Government responsibility and this will create a new discrimination which did not exist previously. Legislation should protect people and promote inclusion, not legalise discrimination. It is imperative to protect the people of Ireland with this legislation and to do so with respect.
Respect means seeing transgender and intersex people as human beings, diverse people with real lives and families and as the experts in their own experiences.
Lydia Foy first requested an amendment to her birth certificate 20 years ago and still she waits. Ireland is one of the last countries in Europe to enact this legislation. It is important that we grasp this opportunity to listen to transgender people, to learn from our neighbours and to get this right the first time. If we do not, there will be court cases, further work and additional cost to the State. I urge the committee to make strong recommendations to the Minister for a process that is simple, speedy and respectful. Members should not take it from me; they should listen to transgender people, as they are the experts.
I would like to clarify who has been invited to appear. We made a call for submissions. We had a process whereby people could apply to make a presentation to the committee as part of their submission. Every group that requested the opportunity to make a presentation to these hearings has been invited to do so, including Ms Sherlock's group. It would have been inappropriate for us to put conditions on who could make the presentations. That is not considered appropriate. All groups who requested to make a presentation are being allowed to do so without condition.
I call our final witness, Professor Donal O'Shea, to make his presentation.
Professor Donal O'Shea:
I thank the committee for the invitation to present. I have listened with great interest to all the presentations, which have been informative to me and, I hope, to the process. I am an adult endocrinologist and, therefore, I deal with adults who have gender dysphoria. I have liaised with our faculty of paediatrics and with one of the UK experts in the paediatric management of gender dysphoria as part of my ongoing work. Numbers were alluded to earlier and the group is not capturing everyone. It needs to capture all because there are 50 new cases in the paediatric age group in Ireland every year. Gender dysphoria has replaced the term "gender identity disorder" in the recently revised American Psychiatric Association's classification of disorders. "Disorder" has been removed from the terminology and there was talk that the entire condition would be removed from the classification of diseases, which would have been seen as a positive step by many but which might have left it without a medical management framework. A great deal of medical input is required for many of these individuals.
In Ireland the diagnosis is confirmed by a mental health professional - a psychiatrist or psychologist - and then there is a referral for hormonal therapy which is available here. Medical services are not wide enough in this country yet but they are improving. After approximately two years on hormonal therapy and-or living in role, the individuals are referred for surgery. Some surgery is available in Ireland - breast and uterine surgery - but full complex surgical reassignment is carried out either in the UK or Belgium through the HSE treatment abroad scheme. The waiting time is approximately two years from referral. We have had 246 patients through our adult service in Loughlinstown hospital over the past ten years, of whom 25% are or have been married.
The learning in our unit from the past ten years that might inform the proposed legislation is that it is in the best interests of this overall group of patients that a medical supporting statement form a part of the validation process. It would have to be minimally intrusive and from a recognised, regulated specialist in the area. This would protect a minority of patients within the overall group who think they have the condition but who do not. Self-declaration alone would support this minority in what is a personality disorder and potentially worsen their outcome. Legislating for any minority is difficult. In legislating for gender dysphoria, we need to be aware of the potential impact on a minority within that cohort that I have seen over the past ten years have bad outcomes. Many of the patients with gender dysphoria who attend our clinic do not have contact with other transgender patients or support groups because they want to move forward exclusively in their preferred gender. The issue of age in this legislation is important from a constitutional point of view but the most important age from a medical point of view is puberty, which obviously cannot be legislated for. Before puberty, there is a reported 20% desist rate, which is change of mind after the process moves forward. Following puberty this falls rate to less than 5%.
Transitioning and the diagnosis of gender dysphoria does not require hormones or surgery and any letter of support would not have to include that stage or concept. My reading of the current heads is that the intersex group, which is extraordinarily complex, would be comfortably catered for within the legislation, as drafted. I am grateful for the opportunity to comment.
Before proceeding to questions, I pointed out earlier that these proceedings are being broadcast on channel 207 on UPC. A member of the public has contacted the committee to say there is interference, which is probably being caused by a mobile telephone or other electronic equipment. It is best if people turn off their equipment completely. It makes for better broadcasting, particularly for members of the public who have an interest in watching the hearing.
With regard to the questions, will witnesses make a note of them? If they are directed at individuals or groups, they will need to respond to them but if they have a point to make on other questions, they can do so. I have asked members to confine their contributions to three minutes and they may have a second opportunity if appropriate. I call the party spokespersons first.
I thank everybody who has attended. It has been a useful exposition of some of the issues relating to the Bill. I have taken an interest in the past year or so to try to address a shortfall in our law. It is interesting how the Government's position has moved in that period. The Bill is welcome and, hopefully, this process will inform the Department and the Minister to make the changes required in order that we can have the best legislation at the end of this. This is a new legislative process, which has only been followed on a number of occasions and, therefore, it is welcome that both departmental officials and stakeholders are present.
I have a number of questions for the Department, the first of which I presume will be asked by a number of members. It relates to the age barrier and the criticism made by the Ombudsman for Children.
Are the witnesses aware of those views and is it the intention to look again at the suggestion that the minimum age of 18 should be reduced?
The second issue relates to the requirement that someone is not in a marriage or civil partnership. Has the view of the Attorney General been sought on whether it is constitutional to ban somebody who is married from gaining other rights? It seems to be a contradiction. That is one of the reasons for the delay in the publication of legislation in recent years. I am concerned that, having gone this far and having produced legislation, we would find it falling at the first legal challenge, which would mean starting all over again.
It is suggested that there be a definition in the heads of the Bill. What definition would be used? A number of definitions exist internationally. The various wordings would have different implications for the legislation. Has a definition of gender identity been chosen?
I thank all of our guests for their initial contributions. I welcome the Bill. I commend the Minister, Deputy Burton, on being the first Minister to introduce legislation in this area. It is important to acknowledge that before we begin to critique the Bill.
I concur with the concern expressed by Deputy Ó Snodaigh about a number of provisions in the Bill. All transgender people should be entitled to legal protection regardless of their age or marital status or whether they are in a civil partnership. We are coming to the issue at a late stage compared to other European countries and we have an opportunity to learn from their experiences and get it right. We can start with best practice rather than starting where countries were ten years or 20 years ago. The witnesses have eloquently outlined that the lack of protection for young people has a huge impact. This committee is responsible for both social protection and education. It is difficult to hear about the day-to-day obstacles young people have experienced in schools, which must have an impact on their education. That is something we as a committee cannot ignore. For me, it is a strong argument for adopting the changes that have been proposed by the Ombudsman for Children.
The main area about which I wish to ask questions is the forced divorce requirement. I will put them to the Department as its representatives are only present for this initial session. Some couples perhaps do not survive the gender transition and go their separate ways, but many others stay together. Other countries have taken a different route. Challenges have resulted in cases being heard by the European Court of Human Rights and in some countries forced divorce requirements have been struck down. Two main issues arise. As TENI pointed out in some of its correspondence, there is a very good chance legally that if a couple has survived the process of transition and both parties are happy to stay together, a court might decide that they do not satisfy the criteria for divorce because they could not be considered to be totally irreconcilable if they want to stay together and keep their family together. Therefore, there is a risk in that regard. If divorce does apply and people are able to get one, it is problematic to force a family to split up. The Department’s spokesperson, Simonetta Ryan, referred briefly to the constitutional context as the reason for the requirement. I would welcome more details on that. If anything, there is a constitutional context for protecting the family, which is strongly protected in the Constitution, as is marriage. The proposed approach could be constitutionally problematic. I have read persuasive legal opinion that to force a family to break up would be tantamount to an external group imposing divorce on a family.
Based on the work that has been done by Fergus Ryan in particular, who wrote a very good article on the matter, such a provision could be legally unnecessary because in Irish family law in general the validity of a marriage is based on the status of the people at the time they enter into it. The issue is whether one was capable of entering at that time into a valid marriage. It is arguable on that basis that it is legally unnecessary to force people to divorce many years later if at the time they got married they were capable of contracting a marriage. Putting aside the issue of marriage equality, which I hope will be dealt with in the near future, even before any of that is examined it is unnecessary if the marriage was valid at the time it was contracted.
Will the Department share its legal advice with us? It is not good enough to say there is a constitutional context. We really need to see the meat of the advice because all of us as Members want to do the right thing legally in the sense that when we pass legislation we want it to be able to stand up to scrutiny in the courts. We must have the information in order to judge the issue properly. Contrasting opinions have been put forward by Fergus Ryan and FLAC. There is a letter from the Council of Europe Commissioner for Human Rights to the Minister for Social Protection, Deputy Burton, on the ECHR context of all of this. It is a big legal issue and for us to discuss it meaningfully as a committee we should all be working off the same information. I therefore make that request to the Department in particular.
I will not take long because most questions have been asked about the legal issues and there is no point in my repeating them. I thank the witnesses for attending. I work off my gut instinct and when something is right, I know it is right. From recent meetings and from talking to people I am aware of the reality of the situation and it is for society to address the reality rather than trying to find barriers to prevent it.
I thank the witnesses from the Department of Social Protection for attending. The Ombudsman for Children has clearly said that the vindication of young people’s rights is at issue. It is the responsibility of society to protect all children, including those between the age of 16 and 18. It has been said that in this instance the legislation could have the opposite effect. I agree with the Ombudsman for Children's statement that one cannot just put a blanket ban on gender recognition for 16 to 18 year olds. Provision must be made for them in the best possible way by working with the community of transgender and inter-sex people on how to proceed. The Ombudsman for Children and others present have made positive proposals about how to deal with the issue.
I have a question for Professor Donal O’Shea. I argued strongly, even on the abortion legislation, about the impact of involving people in the mental health service in order to assess their situation and whether they have a right to access a service. The same should hold true in this area. One could ask why we are putting people from the transgender and inter-sex community into the mental health services. Surely as soon as a person indicates that he or she is not in the correct body then he or she should be in contact with the medical service or his or her parents should be in contact with a GP or other medical expert. The situation develops over a period but it can start at a very young age. It is clear that a person is moving in a certain direction and that certain changes take place in their bodies, which can culminate when a person reaches the age of 16 years to 18 years. I will be guided by what the experts say but I ask why there is not a specialist area to assist young people who are going through such an experience. It will be clear from the parents, the young person and those involved in the medical profession that the situation has evolved without requiring a report from a mental health expert or psychologist. That does not fit well with me. I would welcome the view of witnesses in that regard. It is also a question for the HSE in terms of linking in with the specialists, parents and children who are affected.
I do not think it is the right policy as it goes against what I believe is the right approach, from listening to the experiences of people in the transgender community.
Ms Simonetta Ryan:
The Bill has not yet been drafted by the Office of the Parliamentary Counsel. Deputy Ó Snodaigh asked about definitions but these are not available yet. However, I will take this opportunity to say - Professor O'Shea also picked up this point - that the wording can be such as to provide for people with intersex conditions, so I did not specify that in my opening presentation. Deputy Ó Snodaigh also mentioned the question of age, as have a number of other people. The recommendations in the scheme of this Bill are based on the recommendations of the GRAG report, with additional changes for which the Minister has received Cabinet approval, particularly with regard to validation. The position on age is the recommendation in the GRAG report and it is based on a kind of prudent approach. Professor O'Shea has also talked about the difficulties for young people and the fact that in some cases people may change their minds. I accept this is a difficult area. However, the Government made a very clear decision that the age would be 18 years. The legislation is being drawn up on that basis.
Professor Donal O'Shea:
To reply to Deputy Ó Snodaigh's question about the age of 16, the really important time is puberty, and in the ideal management of this condition that is when treatment would start. In such circumstances, if there is a change of mind, puberty has still begun. In 20% of cases in which there is a diagnosis before puberty there is a change of mind. One needs access to paediatric treatment for this condition, but that is rudimentary in this country. The service we provide for adults is inadequate but the service for children is really minimal. Other people here today are agitating for such a service to be developed. The definition used would be the definition in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, or DSM-5, by the American Psychiatric Association, which is newly revised as of August of this year. This definition separates adults from children and adolescents for the first time. That needs to happen so that treatment pathways can be put in place for both.
On the issue of forced divorce, we have very happily married couples who are expecting children or who have young children and who are very committed to each other. This will force change, because one cannot force divorce. The Constitution will have to be changed to reflect that.
The labelling of the condition as a mental health issue is significant and contentious. The fact that homosexuality was only removed from the DSM in the 1970s is a very good yardstick of how offensive that whole area is and can be. The situation with gender dysphoria is that a lot of medical input is required and that needs to be facilitative rather than a barrier. For a medical condition to access treatment it has to exist as a medical condition. If the condition is taken out of the medical arena completely and one asks the HSE to please treat this thing that does not exist as a condition, the treatment will not be given. The only way we will get traction with the health service is if it is a condition with an internationally recognised treatment pathway which is not adequately provided in this country for adults and is barely being provided at paediatric level. Therefore, we need to do better in the medical sphere. I believe that in 20 years' time we will be talking about the removal of gender from the DSM-5 classification, because it very nearly came out this time. It is in the classification, however, and we will have to work within that system.
Ms Leslie Sherlock:
I would like to respond. To be clear, we are talking about two things here. This is a legal right, and the medical discussion, while very relevant and pertinent, is actually a separate issue. Beyond that, the psychiatric debate is again a separate issue. It seems as though we are all in agreement that the psychiatric diagnosis is not perhaps the most respectful or relevant. It is a mental condition and I think there is a distinction to be made between mental conditions and medical conditions. For example, pregnancy can be diagnosed and can be treated as medical but it does not have to be a mental condition. I agree with that. I also think the statistics on regret are irrelevant. Marriage has also a rate of regret; people go for divorce because they regret having married or they change their minds. The same argument can be made for this in that it is a legal right. I agree there will be a percentage of people who regret their decision, but instead we should look at the percentage of people who do not regret it. Seventy-six percent of young trans people in the UK knew of their trans identity by the time they left primary school. The vast majority of trans people are aware and certain of their trans identity by the age of three. I think that is where we need to concentrate. We cannot legislate for the few outliers; we need to legislate for the majority of people who will be very certain of their gender identity at a very young age. We have a responsibility to protect them from the harm that results from not being able to have that identity confirmed. I remind members to look at the medical issue as separate from the legal issue; they are two completely separate things.
Senator Power asked a question about the constitutional issue - whether people should be made to separate or allowed to stay together, which fits into the constitutional framework. Has Ms Ryan any comments?
Ms Simonetta Ryan:
A number of comments were made but I did not have an opportunity to finish my response. With regard to the intervention of the Ombudsman for Children, we are aware of the ombudsman's views and they have been submitted to the Minister. On the question of marriage, we accept that this is a difficult issue and there are very serious constitutional issues and also issues with regard to the European Convention on Human Rights, but that is not something we can resolve in the legislation. I am not permitted to divulge advice we have received from the Attorney General, but the discussion of the Constitution and the position of marriage within the Constitution and same-sex marriage, specifically, is a matter for the Department of Justice and Equality rather than the Department of Social Protection. If that position is to change in the future, it will allow us an opportunity to deal with the outcome in this legislation. I cannot say anything further, unfortunately.
Deputy Ó Snodaigh asked if this legislation would fall. I cannot predict what may happen.
With regard to the legislation relating to the people who satisfy the criteria, they will get their gender recognition. For those majority of people we can at least be satisfied that they should be covered.
To pick up briefly on the issue, there is no prohibition on sharing the Attorney General's advice, although I know it is not standard practice. There is a massive gap between sharing the full advice and giving us one line indicating that there is a constitutional context which prevents something happening. As I initially outlined, there is strong legal opinion on the other side; this is nothing to do with same-sex marriage but the validity of a marriage depends on the circumstances existing at the time. There is much case law to back this up, and at the very least we should get a paper from the Department as part of these discussions. I am talking about setting out the main arguments or cases that are being referred to, including legal precedent that backs up the arguments. It is difficult for us to evaluate the thought being put into this by the Department if all we are being told is that it is considering the constitutional context. We need more meat than that to be able to do our job, and when the legislation comes before the committee we will be picking through amendments, so how are we supposed to make an informed judgment on the arguments if we have not heard them?
On the same matter, we all hope progress will be made on this legislation but if the provision remains as it is, it would be open for somebody to challenge it. Given that discrimination cannot happen on nine grounds at the moment and the Constitution protects marriage, it is one of the problematic provisions within the Bill that could force a couple to divorce. In an ideal world we would have same-sex marriage to deal with the hiccup in society and I hope we can see that issue addressed shortly, but in the meantime there is a provision before us. We need to be imaginative enough to accept that there are happily married couples and for them to continue to remain as a couple or in a civil partnership, the State would be forcing them to divorce. They would have to live apart for four years. It is just one area we need to tease out.
I agree with Senator Power in asking the Department, if possible, to share some of the advice or legal background. Perhaps we could ask the Attorney General or the Minister to come before us and help us with the issue. If the Bill is published in the manner suggested, this will be a sticking point for most of the people I have spoken to about the legislation.
Ms Sara Phillips:
I wanted to get through a couple of the points. I echo Ms Sherlock's comments on the medical and legal pathways, as we must be very careful and separate those. We are not saying within the transgender community that the medical system does not need mental health support with regard to these issues and we clearly need to have that sort of support in order to provide a medical pathway. It is also crucial to remember that many of us transgender people, when we get to the point of deciding or realising that we are "trans", are three, five or six years old. There are those who deal with other issues, and that is what the medical health system is for. Nevertheless, providing us with legal recognition should not be predicated on that. With all due respect, men or women seeking medical assistance do not have to prove they are male or female; they just get medical assistance and we must be careful in realising that.
There was a point about marriage and I echo the comments of Senator Power. The marriage issue concerns the point of contract, and at that point two people are legally recognised as male and female. For the State to tell the people they must break that contract is a travesty. There is no provision within the Bill for those people who cannot therefore access gender recognition because they decide that they need to keep a family together if they are happily married. There is no provision for the possibility after a person has transitioned, having had surgery and mental intervention. They cannot continue to keep their passport or driving licence in the female gender, as it was in my case, for example. They are left in limbo.
We all look forward to the day we can see same-sex marriage introduced but the most recent referendum indicates we need to await a referendum, and who is to say it will be passed? Are we therefore asking married couples to wait for what could be another 20 years for same-sex marriage to be allowed?
I thank the witnesses for the presentation, and much of what I was going to say has already been ably put forward by colleagues on the committee. It is great to see such a uniformity of views around the issues at hand.
I welcome the general scheme of the Bill and there is much to recommend it. Much of it is broadly welcome but it comes around to the same issues, and I may reiterate what has already been said. The age issue will be a problem but this Bill needs surgery and not butchery. Nevertheless, if the Bill remains as it is, it will open many legalistic and constitutional minefields, and it could spend much time in the courts. We can view this as a rolling process and work with the Bill as it goes along rather than viewing it as an end product that must be accepted or rejected. It would be better if we worked in that manner.
The divorce issue is constitutionally questionable. As others have stated, the family is at the heart of the Irish Constitution and suggesting that the State would force a family to break up and divorce is questionable. I can see a case being taken at the High Court or Supreme Court and being won easily in that respect, although I am not a constitutional lawyer. That is taking into account the way the Constitution is written and the interpretation of the Constitution through the years. As Ms Phillips has correctly stated, a referendum can be accepted or rejected so it is a constitutional nonsense to wait for same-sex marriage to be accepted. The idea that the State would force a couple to dissolve marriage against their will would not have constitutional standing. Every piece of legislation going through these Houses must adhere to the Constitution.
I am taken with the presentations from TENI, LGBT Noise and other groups with regard to children's issues. I am also mindful of the advice from the Ombudsman for Children. There is a legalistic problem with the age provision, and many would advocate that there should not be an age barrier at all. The recommendations for the group between 16 and 18 are highly questionable. Are we really advocating a difference of opinion between somebody's gender identity and what somebody else says? That could give rise to much legal and constitutional argument.
Perhaps the next point is minor in the legislation but the piece regarding sport borders on bizarre. Who are we, as a legislative body, to recommend to sporting organisations who can play a sport. That is a strange, odd, unnecessary and slightly offensive provision. We are still trying to amend legislation from 12 years ago that was introduced in good faith to allow certain bodies the right to "discriminate" on the basis of religious ethos in employment law.
We are changing this because the context has changed. Such provisions are unnecessary, bizarre and offensive. In as much as it is very strange for the State to require a couple who are very committed to each other to divorce in these circumstances, for it to specify what sport a person can or cannot play is objectionable. I am interested in hearing the reaction of delegates to what my colleagues and I have said because we are very much in agreement. The broad point I want to make is that my hope is that we have started a process and that we do not have a fait accompli. I hope we have a rolling process in order that the Bill can evolve and be amended and changed. Instead of the Government making a definitive decision on the statutory age, I hope there is leeway for it to be altered. If the Bill remains as is, without the surgery we can do here, it will be butchered when a case is taken in a constitutional court. We should prevent such butchery from happening by amending it here.
I thank the delegates for their presentations. This is a welcome process as it is a healthy way of shaping the legislation. I hope we will see this process used more in the future. I concur with most of what has been said.
On the issue of age, I agree with the points made. If a person makes a mistake or decides later that he or she has made a mistake, is it possible to change this under the provisions of the Bill? Would this be a safety net for those under 18 years? Would such a provision assist in that regard? We should consider setting the age at 16 years. However, in respect of the other proposal in relation to parents and guardians, would providing for an opportunity to undo the gender change at a later stage not be a safety net to address that problem?
The divorce requirement is analogous to being in Dublin and going east to get to Galway. One will eventually arrive but what state will one be in when one gets there? It is the long way around. It is glaringly obvious that this will open up the Bill to constitutional challenge and will undermine it from the start. It seems extraordinary to force people to take that path. Certainly, that issue needs to be looked at.
Head 26 on sport flies in the face of the ethos of equality we are trying to achieve. We need to give greater consideration to this issue.
It is welcome that the Bill is under discussion. That is progress. What is required is delicate surgery rather than butchery. There is a way around all of these issues. I hope we can work together to get to that point.
I have a number of questions. Does everybody agree that if the Bill, as presented, were passed, we would have made progress? Does anybody disagree with that point? Progress can be made all at once or in incremental steps. Is the proposed legislation progressive, as it stands, compared to the current position?
In respect of young people, there is no provision in legislation for recognition of acquired gender. People have spent many years waiting for official recognition of their gender. I am sure that measure can be put in place to protect those in the 16 to 18 age group with gender issues, while setting an age limit in respect of when certain rights come into play. Will Professor O'Shea comment on whether that would be a real problem for the individuals concerned?
Ms Sara Philips:
Any proposal to enact legislation represents progress because there is no legislation in place. It is 20 years since Dr. Lydia Foy asked for this change. A number of people have said it is very welcome that we are considering the legislation at this point in the process. While it is progress, there are still lots of problems. To return to a point I made in my opening statement, many issues speak to the everyday lives we have to live. The issues with the proposed legislation would still continue to cause day-to-day problems for transgender individuals and also transgender children.
On the question of age, we need to remember that at the age of 16 years an individual can actually access medical treatment of his or her own volition without parental consent. If a person accesses this medical treatment, he or she is left in limbo, in which the person's body has changed physically but this physical change is not recognised. I facilitate the transgender sports group in Dublin to which many young people come regularly. I reported a story previously in which the Passport Office refused a new passport for a young man because it was not considered he was in transition long enough, yet he was clearly masculine. If I stood him in front of members today, nobody would recognise that he was a transgender individual. The hormone treatments may act quickly and the individual's appearance may change very quickly. When such individuals go to school with the changed physical attributes of male or female and that is not recognised in the education system, it causes a major problem. From the point of view of being progressive, the legislation is definitely the next step. I echo the comments of members, including Deputies Brendan Griffin andAodhán Ó Ríordáin, that it needs to be a process. This needs to be fixed and adjusted. It is crucial that age is identified as an issue because I knew my gender when I was five years old. I know lots of people do and it is a problem to wait until the age of 18 years.
Ms Catherine Cross:
When my son came to us and said he was transgender, it came as a major shock. We did not expect it. It was like something that happened on "Oprah", not to people like me. I though my son had a problem with his mental health because he was down and withdrawn, a case of depression. Since we as a family have accepted his gender, it has made a difference in his demeanour. He is confident and doing well at school. Imagine if the State could recognise and value him, that would make a difference to the career choices he makes. If one does not feel valued, one will not do well. The choices one makes between the ages of 16 and 18 years have consequences for the rest of one's life and one's name and gender go on documents that follow one for the rest of one's life. Does one really want to have to explain continuously why one looks like a man and has a man's name, but the gender on documents states one is female. I would like the issue of gender to be in the past for my son.
As a family we would like to forget about the gender issue and get on with life. Should he have to wait until he is 18 years and will he have documents with a gender that will continue to follow him? The years between 16 and 18 years are an important part of anybody's life, but it is a really important stage of the life of a transgender individual.
Ms Leslie Sherlock:
The chairperson queried whether we see the introduction of the legislation as progressive. I do not think anyone would believe that the introduction of legislation is not progressive, as Ireland is one of the very last countries in Europe to introduce such legislation. What is being proposed in the heads of the Bill is more in line with legislation enacted in Europe in the 1970s and 1980s. Do we really want to introduce legislation that we know from the experience in other countries is outdated? The heads of the Bill are certainly more progressive than the proposals from the gender recognition advisory group. The difficulty is that the views of the medical profession have equal if not greater weight than those of transgender people. Let me reiterate this is a legal not a medical process. The HSE treatment pathway for transgender people needs to be looked at. That is probably an entirely separate process and is a job for a new committee. I do not think we are disputing that it needs some attention.
The question I put to members is to consider what harm is caused by lowering the age of acquired gender from 18 years to 16 years so that young people can have their gender recognised and be protected. What harm is caused by allowing what is realistically a tiny minority within a minority to remain in their marriages? It will not hurt anyone else to allow these families to stay as a family unit and simultaneously to recognise the gender identity of the transgender partner. What is the harm of allowing a person to self determine his or her identity without the need of a stamp of approval from the Department of Social Protection or a letter from a doctor? Getting married, or getting a passport is a legal process, and it should be afforded to anyone regardless of mental health, marital status and age. It is a basic human right.
It is great the Minister for Social Protection, Deputy Joan Burton has brought the process of acquired gender recognition forward. It was not instigated in Ireland but came from Europe. We are one of the last countries to implement such legislation.
We have to consider what harm results from introducing legislation to recognise transgender people in a more inclusive and respectful way that protects them in contrast to what harm results if we do not do it. We have seen evidence of the harm that can be done to young people if they are not enabled to get their gender recognised, to married parents if they are forced to divorce and to anybody who is forced to go through a medical process that he or she may not wish to do.
Mr. Andy Mannion:
I think it is ridiculous to ask young transgender people to wait to reach 18 years before their gender is recognised. Persons know their gender before age 18. One spends five to six years in secondary school and one must spend every single day in the wrong uniform. It should be a simple process for pupils to request the board of management of the school to be allowed to wear the uniform of their legal gender. That is one reason that the acquired gender of young people needs to be recognised in the legislation.
I dropped out of school as have some close friends as a result of the difficulties that result from not being able to have one's legal gender recognised. Having the correct foundation in life is just as important as other elements of life. If one cannot start off properly what is the quality of the rest of one's life? That is the reason it is so important to include young people. The issue of informed consent on surgical procedures is a completely separate issue, this is a legal issue of being able to change the gender marker. As one is able to change one's name by deed poll the process of changing one's gender should be equally simple. It is a common process for parents who remarry to change the name of a child.
Professor Donal O'Shea:
The important age is puberty and is the time of real distress to the individual, which is well before 16 years. The 16 to 18 age cohort is a facile constitutional argument and as to its inclusion, opinion would suggest it be changed. That is unanimous from those who have contributed and I presume that is part of the process that will feed back into the heads of the Bill. I do not particularly want to get involved in the issue of age.
Deputy Ó Ríordáin who raised the question on sporting organisations is no longer present. All sporting organisations must take a position on this. I have been involved in the International Rugby Board committee on gender dysphoria in the year running up to the women's rugby world cup. There were significant concerns about individuals of 6 ft. 10 in. who had transitioned from the male to female role running out as second rows on international teams. The sporting organisations are agitated because they need to have a position on the intersex conditions as well as gender dysphoria. The heads of the Bill is addressing whether that should be a constitutional entitlement for the sporting boards or just left up to the sporting boards. It is a real issue.
The constitutional point of view on validation is another area that must be addressed. The validation process really should not be a process, but should be a supporting statement from the practitioner who is, or has been involved in looking after the individual through some point of their journey. We have 254 patients. Some 246 patients attended the services in Loughlinstown. We would have been asked to see a certain number more than that who do not have gender dysphoria but may have been down and depressed. A personality disorder, which is totally different from gender dysphoria can have a focus on gender as an issue. An individual with a personality disorder could chose to change his or her gender by simply self declaration. The issue for the committee is the minority risk this poses in terms of the constitutionality of the birth certificate. The rate of regret among those with gender dysphoria who go through transition is very low, and there is the capacity in the legislation to change back. I would not imagine a person having to go through the process of an examination, and sitting in front of a board for acquired gender validation.
The enactment of the legislation would represent progress, but there is a clear appetite for change.
Ms Simonetta Ryan:
I thank the Chairman for the opportunity to come back on a number of issues.
Changing somebody's birth certificate is not insignificant from the point of view of State records. As things stands, people can have a passport in their changed gender, but there is a requirement that they be in the new gender for a couple of years. It is important that the State knows who is who, for example, with regard to criminal activity. This is a practical issue which we cannot ignore. It is not quite the same as a marriage certificate.
With regard to the constitutional issue on marriage, as I stated, I cannot discuss our legal advice on this issue and will not do so. There are differing views on the impact on the Constitution and whether a same sex marriage is inadvertently created. I can state quite clearly that there is certainly no agreement on this issue, which will not come as a surprise to anybody. This is the horns of the dilemma we face in drafting the legislation. The broader issues are matters for the Department of Justice and Equality.
As I stated, a number of elements of the legislation are, to some extent, fail-safe provisions and have been imported from other legislation. What Professor O'Shea stated about sport was correct. There are issues for sports bodies, but the Minister will listen closely to everything the committee has to say and its recommendations, including on this issue.
Deputy Brendan Griffin asked whether it was possible to revoke a decision. Under the legislation, this will be possible. It is also important to state we will not force people to divorce. We will require them to be single and there is a subtle distinction. In the Constitution, as everybody is aware, we have very specific criteria on divorce and the amount of time people must live apart. This is a simple fact that we cannot ignore. I am also aware of the European issues involved. What we propose is well in line with the position in other European Union member states. No other member state of which I am aware has legislation which has an age limit below 18 years. The Netherlands is examining an age limit of 16, but it has not been successful in having this legislation enacted.
We see the validation process as being light touch. There is no requirement for the Minister or the Department to be told whether a person has had any interventions whatsoever. The care pathway is a matter for the individuals concerned and their physicians.
I hope I have covered the issues about which I have been asked.
As I was asked to keep my first comments brief, I kept a few questions back.
Has account been taken of Austria's decision that there cannot be a requirement to divorce? I believe Germany has followed suit. That happened back in 2006 and 2008. Ms Ryan has stated there are differing views on how to address this issue. They would not be considered the most progressive countries with regard to this type of legislation, but people had to go to court to ensure the legislation which gave recognition would not force a divorce or a split in partnership.
What does the Department expect the timeframe to be from the time of application to the time of granting a certificate? Will it be immediate once all of the three or four criteria mentioned in the heads of the Bill are satisfied or will there be delays to allow the Department examine the matter? The process of naturalisation takes six or seven years from the time of application. Does the Department expect this type of timeframe or will it be more instantaneous?
We have discussed reducing the age limit to 16 years. Has consideration been given to parents applying to have gender recognition changed in instances where it is medically obvious or with regard to intersex or indeterminate sex? Will a child who has had a diagnosis at birth of being male be condemned to wait until the age of 18 years, despite the fact that it has been obvious from an early age the child is female? Is this issue covered in the legislation?
We have concentrated on the specifics of the Bill and not heard personal testimony, apart from Mr. Mannion, on how urgent this issue is for people who are stuck in a situation where the State does not recognise them. I have heard such testimony. I know we are dealing with legislation, but it is a pity people outside do not hear it because it is quite a complex issue with which to grapple. It deals with a range of concepts, including the medical issues mentioned by Professor O'Shea and legislation, but every individual case will be different in its own way and trying to capture all of them in the legislation will be difficult. We have made major progress from where I thought the Department was going. That is welcome.
I want to ensure that whatever comes out at the end of this process is the best possible and that we have learned from all other jurisdictions throughout the world which have grappled with the same questions and come out in different ways. We can set a standard through our legislation which others will follow rather than ignoring the mistakes others have made and repeating them. Some lessons have been learned but others have not.
With regard to the requirement to divorce, the focus should be on the fact that under the current law and the Constitution, marriage is entered into by a man and a woman. The question is raised on entry into marriage; therefore, there should not be a requirement to divorce in the circumstances we are discussing.
I take the point made on having an age limit as opposed to referring to the circumstances of the individual. If the concern is a person may not be mature enough to make the decision, or parents may not make the correct decision on their child's behalf, the fact is it can be reversed. That is the safety net we need. This should be enough to allow not having an age limit of 18 years in the legislation.
Ms Simonetta Ryan:
To answer Deputy Aengus Ó Snodaigh, we expect the timeframe to be short. There will be a backlog of people to be dealt with, but the Department will deal with it and it will not involve huge numbers. Austria and Germany have completely different constitutions and we are back to the difficulties with the very specific constitutional issues we have in Ireland.
The Deputy also asked about where it was medically obvious somebody had been categorised in the wrong gender at birth. There is already provision in the 2004 Act for the correction of errors by the Registrar General. This legislation will provide a further remedy in such a case.
Deputy Brendan Griffin asked about the marriage issue.
Where a man and a woman enter into a marriage and the gender of one of them changes, it is not an accepted fact among lawyers that this does not affect the position of the marriage. That is my understanding. It is not an accepted fact, rather it is a view. There is a provision in the legislation on revoking or reversing the gender change, but I understand from talking to people and what has been stated at this meeting that this in itself would be a huge decision for people to make. It would be reckless to use that provision as a remedy.
I do not know if Mr. Feely wishes to comment on the correction of errors.
Mr. Ciaran Feely:
I do wish to comment on it and I should also address the question posed by Deputy Aengus Ó Snodaigh on the expected timescale. When a gender recognition certificate arrives in the General Register Office, I imagine that registration will be completed in a matter of days and that a further certificate will then be issued to the person involved. It would depend on the agreement of said person to the effect that the particulars to be recorded in the register were correct and that there was no question or dispute about them.
In the context of intersex conditions and as Ms Ryan pointed out, provisions on the correction of errors in registers are contained in the Civil Registration Act 2004. There is nothing to prevent a person affected by an intersex condition or his or her parent from applying for the correction of an error in the gender indicator in the entry in the register of births.
Ms Sara Philips:
Ms Ryan has stated no other European country considers age in the context of children. Malta has considered the matter and its legislation contains a provision in respect of those under 18 years. The Netherlands is proposing to change its legislation in order to include those under 18 years.
If the Chairman does not object, I would like to direct a question to the officials from the Department on the physician's letter. How does the Department intend to cope with the fact that there are very few experts dealing with this issue in Ireland? Only a very small number of people could sign off on the letters in question. Professor O'Shea may agree that even when people are trying to obtain sign-off in their surgeries, their physicians can often be overloaded with work. As a result, we have struggled to obtain access to funding, obtain referrals, etc. While the Registrar General has stated it may take a few days to issue a physician's letter, it might take much longer for it to arrive.
Ms Leslie Sherlock:
I would like to pick up on a couple of points. The marriage contract and the marital legal right provide a very useful comparison. In the context of the medical assertion made, I return to the fact that a very small number of medical people in this field have a vested interest in keeping this in the legislation in order to protect their own businesses and incomes. The issue of personality disorders or mental illnesses is irrelevant. Any crazy old individual can enter into a marriage and any person should be able to enter into a recognition of his or her gender identity. It should not matter what mental state the person is in. It is also a useful comparison in terms of the reversal and the fact that we can have divorce which was introduced in Ireland quite late but with good reason. As Deputy Brendan Griffin stated, including this provision in the legislation is not reckless, rather it reflects reality. What is the problem with this?
Sport is probably an subject in respect of which this issue will need to be addressed but probably not by this committee. However, I urge members to consider this matter from the perspective of protecting transgender people, as opposed to further stigmatising and oppressing them.
In the context of the constitutional issues and comparisons with Austria and Germany, I imagine it would be quite difficult for any member of the committee and for us, as activists, to make comparisons with these countries in the absence of both a firm legal opinion and an interpretation of the Constitution. It would be extremely challenging for anybody to make a decision on the point on divorce when there is no firm interpretation or legal opinion on the constitutionality of forced divorce.
Ms Simonetta Ryan:
The Chairman is correct. This does not really fall within my area of competence, but I know that the number of practitioners in the field is growing. All that will be required will be for them to supply a short document. They will not be obliged to provide a raft of back-up information or anything of that nature. It is much more straightforward.
I was not stating reversal was reckless. Far be it from me to say that. However, regardless of one's view on the matter, it would not be reasonable to rely on it to advance the issue around age.
I was acknowledging that no one would enter into this process lightly. In the context of the law, however, it would be fair to include such a balancing provision. If we are seeking to justify not having an age limit of 18 years, we could argue that the provision to which I refer makes reversal possible. If the option for reversal were not included, I would have serious concerns about minors making such important decisions. Surely the fact that it is included justifies the removal of the age limit. The point I am making is that, from a legal point of view, this would make it fair and reasonable.
Professor Donal O'Shea:
On access to health care, an increasing number of endocrinologists within the HSE system are seeing and dealing with this condition. I have always tried to keep it exclusively within the public system; therefore, I never have taken private income. That answers the accusation about vested interests. I am very much of the opinion that conditions of this nature need to be managed within the public system in order that those involved can be referred on through the system to the treatment abroad scheme. Within the private system, this would be extremely expensive. I have encouraged other health care specialists who trained with us to do the same. The workload is small in volume. When specialists are being identified, they should be regulated, subject to Irish Medical Council sanction if they are involved in exploiting someone or if they are seen to be vested in their interests.
We will conclude on that point. I thank all of our guests. If there are points which they did not have an opportunity to address or on which they wish to provide further information or if they wish to clarify particular matters, they are free to correspond with the committee. A further six representatives will come before us at our meeting tomorrow morning.