Oireachtas Joint and Select Committees
Thursday, 24 October 2013
Joint Oireachtas Committee on Education and Social Protection
General Scheme of Gender Recognition Bill 2013: Discussion (Resumed)
Apologies have been received from Deputy McConalogue. I draw the attention of the witnesses 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 you are directed by the committee to cease giving evidence on a particular matter and you continue to so do, you are entitled thereafter only to qualified privilege in respect of your evidence.
Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice that where possible they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. The opening statements that witnesses have submitted to the committee will be published on the committee's website after this meeting. Members are reminded of the long-standing parliamentary practice that I have just outlined.
The general scheme of the Gender Recognition Bill 2013 was published last July by the Minister for Social Protection, Deputy Joan Burton, following Cabinet approval and was referred to this committee for its consideration. In order to assist us in our deliberations we sought the views of interested individuals and organisations and received ten written submissions. To enable us to develop an understanding of the key issues identified in the process, we decided to hear evidence from key individuals and groups on the matter. Yesterday, we heard from the Department of Social Protection and five groups and individuals. Today is the second of these hearings and we will hear from the Free Legal Advice Centres, FLAC, represented by Noeline Blackwell and Yvonne Woods; the Equality Authority represented by Brian Merriman, Dr. Fergus Ryan and Dr. Tanya Ní Mhuirthile; and Amnesty International represented by Marco Perolini. Dr. Philip Crowley of the HSE will be available to respond to relevant issues. I welcome the witnesses to this meeting and ask them to keep their submissions as close to five minutes as possible. I invite Ms Noeline Blackwell to make the presentation on behalf of FLAC.
Ms Noeline Blackwell:
I would like to share my presentation with my colleague, Yvonne Woods. We are very grateful for the opportunity to come before the committee and to have this discussion with it. We also appreciate a system which allows the scheme of the Bill to be discussed but we draw attention to the fact that where this has happened before and the Bill has come back into the Oireachtas for debates, the discussion has been limited on the basis that the committee has already covered it. We hope that this will be the first of two steps in dealing with this particular tricky Bill.
We circulated a submission in September 2013, which members will have seen, on the scheme of the Gender Recognition Bill 2013. We have also circulated our opening statement. I will skim through that now in the hope that we might be able to discuss any issues that arise when everybody has had a chance to speak.
FLAC has been dealing with this issue since 1997 on behalf of the person who, through no fault of her own, has been the longest-standing activist and campaigner in this area, Dr. Lydia Foy, who did not set out to be a campaigner but who sought recognition of her own rights. We have been doing this since 1997. Dr. Foy has been engaged in the process since 1993, some 20 years ago. The dates are significant. There has been litigation for 17 years and to this day Dr. Foy does not have a gender recognition certificate. In that time we have considered Irish law and that of other countries and we have dealt with colleagues who are here today, whom the committee met yesterday, and elsewhere.
We will, however, concentrate on the draft legislation. We are concerned that, as a human rights issue, people have access to the basic documents they need to be identified in their lives. That is part of the system of access to justice which is our core area. In addition to the 17 years of litigation and the 20 years since Dr. Foy first looked for a certificate, this week marks six years since the High Court found that Dr. Lydia Foy's fundamental human rights under the European Convention of Human Rights had been breached by not having a gender recognition certificate. The State appealed that decision but conceded in 2010, three years ago, that there was no appeal to take. That first declaration of incompatibility with the European Convention on Human Rights, that Irish law was not compatible with European human rights law, occurred six years ago and remains extant. On that basis the Gender Recognition Bill 2013 comes before the committee.
We want to pick up on four particular issues, three of which arise in the Bill. The fourth is absent from it. Before I turn to the areas of major concern, we welcome the fact that in the scheme the Bill will not require gender reassignment surgery or other specified medical treatments as a precondition of recognition, and that it will also cover the position of intersex persons, although that is not our area of expertise. Our first area of concern is forced divorce. Under head 5(d) of the scheme of the Bill, couples would have to divorce as a condition of recognising the transgender partner in their preferred gender. The State is on the horns of a dilemma on this point because however it looks at the problem, it is faced with the Irish constitutional and legal position of marriage. This applies only to those who are married and seek recognition of their preferred gender. It is a tiny number of people but nonetheless it is a real dilemma. The State either permits the marriage to continue, in which case there is a very limited principle being breached, that no same-sex couple can be married in Ireland, although we have arguments about that, or, if it goes down the route which it is going down, it is disproportionately cruel and inhumane and in breach of the position of marriage in the Irish Constitution to require people to divorce in order to recognise another fundamental human right. In facing this dilemma the State has plumped for a policy decision and this is where we think the committee discussion may assist the Minister and the Department in identifying what is the least harm that would be done.
In that connection we can point to what has happened in Germany, a country which does not have marriage for same-sex couples, and similarly Austria. Both countries faced the same dilemma and have permitted the marriage to continue on the basis that the couple was married at a time when everything seemed right and that it would be disproportionately in breach of other human rights to force the marriage to end, particularly in a country where divorce requires not just separation for four of the previous five years, but irretrievable breakdown of the relationship. Somebody is going to have to lie at some stage of this procedure. We have set that out in more detail in our submission. I will ask Yvonne Woods to deal with the question of the minimum age limit in the Bill.
Ms Yvonne Woods:
Head 5(d) of the scheme of the Bill proposes issuing certificates only to people aged at least 18 on the date of application. We have in the past had a different position on the minimum age but have adjusted it in recent times because we have become more aware, through contacts with various groups and talking to transgender people, that this is not inclusive. Now we suggest that the minimum age be 16, with consent of a parent or guardian as well as the applicant himself or herself. This is also the age at which young persons can consent to medical treatment. We have also suggested that consideration be given to the creation of a provisional or temporary gender recognition certificate for younger applicants. Such certificates could be renewed or converted into full recognition certificates at the age of 16 or 18. This recognises the fact that young people are declaring themselves and coming forward at an earlier age, with the support of their families, and need to be recognised by the legislation, which is currently not the case.
The necessity for a treating physician's statement under head 6 of the Bill moves back to treating transgenderism as a medical disorder.
Ms Noeline Blackwell:
If I make one very brief point, what is not in the scheme is the opportunity that will arise now - which legislators will know might not arise for years again - to include discrimination on the grounds of transgender or intersex gender identity in the equality legislation. In our view this could be usefully added.
Mr. Brian Merriman:
The Equality Authority appreciates this opportunity to contribute to the committee's deliberations on how best to promote the dignity, equality and human rights of people who are transgender and intersex. We acknowledge the very significant progress this Bill represents since the initial consultation process began. We pay tribute to the excellent advocacy done on behalf of transgender people by the groups who attended the committee yesterday and also to the Minister and to the Department for listening and implementing many positive changes in this draft Bill.
We encourage the continuation of this process of engagement and listening in order to address the relatively few but none the less crucial matters that if correctly addressed in the final legislation will result in the type of recognition that will benchmark Ireland as an inclusive, respectful society for transgender people. There is a clear, urgent legal imperative for such reform as it is six years since the High Court concluded in the Foy case that Ireland was in breach of its commitment under the European Convention on Human Rights. Gender recognition has been available in the United Kingdom since 2004, a factor that places Ireland in breach of its commitment to ensure that human rights protections in the State are at least equivalent to protections available to people in Northern Ireland.
The Equality Authority has a remit to prevent discrimination and to vindicate rights. People who identify as or who are imputed as transgender or who are intersex typically experience high levels of discrimination. In addition, research has highlighted a high suicide rate and high levels of harassment and violence directed at transgender people in public places. Particular difficulties also arise in accessing employment, health care and leisure facilities. Too many transgender people live in poverty due to increased difficulties in accessing the labour market.
The Equality Authority and its predecessor body, the Employment Equality Agency, have for some decades included the equality rights of transgender and intersex people in the working definition of the gender ground. This approach has been endorsed by the decision of the European Court of Justice in P v. S and Cornwall County Council. The authority has no objection to an amendment explicitly naming transgender as a protected ground under the equality legislation.
In 2004 the Equality Authority highlighted the precarious legal situation of transgender people in its two reports, Transsexualism and Gender Dysphoria and Access to Health Services for Transsexual People. The authority was instrumental in renegotiating a settlement with the State Examinations Commission that led in 2007 to the reissuing of intermediate and leaving certificates to a transgender woman. The commission agreed to alter the certificate so as to reflect the woman's new name and preferred gender. More recently the authority supported the landmark Hannon case concerning the treatment of a transitioning worker. The successful outcome sets a useful guideline for employers to accommodate the needs of their transitioning employees.
I will list the key areas to be considered by the committee for amendment. We welcome the central tenet of the Bill in head No. 6 that a person who wishes to be recognised in his or her preferred gender may make a statutory declaration to that effect. This respects the autonomy of the person and his or her integrity in deciding to seek legal gender recognition. The authority has advised against pathologising transgender people. There is a risk, however, that the requirement that a treating physician must certify that a person has transitioned will introduce a requirement of medical certification in practice. This point in addressed in detail on page eight of our submission. It is respectfully suggested that the presence or absence of such medical certification should not be considered absolutely conclusive where an application is made for legal gender recognition.
On the ground of age, early recognition is very important to the well-being and self-worth of young transgender or intersex people. The general scheme proposes in head No. 5 that applicants for gender recognition be aged 18 or over. Certainly, complex legal issues arise with regard to the recognition of people under the age of 18 but legal norms already used in dealing with this should not be excluded purely because a young person wishes to transition. In law, a person aged 16 or over is competent to make medical and surgical decisions on his or her own behalf without requiring parental consent. It is unclear why the Government has not considered these established mechanisms that would afford young transgender and intersex people the right to access legal gender recognition with, for instance, the consent of a young person's parents or guardians or independently from the age of 16, as is allowed with many other elements of a young person's health and well-being which we recommend. This is of concern in that transition is being excluded from the normal remedies available for young people and may fall foul of the constitutional requirements to respect the autonomy of the family and the rights and duties of parents in respect of their children.
On civil status, the authority's long-standing commitment to equal marriage for consenting adults envisages such situations as now arise in this Bill. The requirements of the heads of the Bill that applicants for legal gender recognition be single is neither necessary nor desirable. In particular, the imposition of the requirement will pose significant hardship on families where a spouse or civil partner wishes to gain legal recognition of the preferred gender.
In its 2010 submission to the gender recognition and advisory group, the authority noted that such approach was not, in fact, legally necessary. The submission noted that the legal validity of a marriage is determined solely by reference to the factors, including the status of the parties present at the date of marriage. It is the gender of each party at the date of marriage that counts in determining the validity of the marriage. Thus, if the spouses were legally male and female, respectively, on the date of their marriage, the marriage, in law, remains a heterosexual marriage, even if one of the parties subsequently transitions to a preferred gender. Prospective legal recognition of a preferred gender would not change the essential fact that the marriage, judged by reference to the factors presented at the time of the marriage, is still, in law, a heterosexual marriage. As such, the concern that gender recognition would convert a heterosexual marriage into a marriage between parties of the same sex is legally unfounded. Many transgender people have been supported on their journeys by their spouses. The Bill requires that at the conclusion of that journey the supportive spouse is then to be presented as the only remaining impediment to the proper gender recognition of the other. This is harsh, unfair and of serious concern. It essentially involves a bartering of rights between the couple, which sets an unnecessary and worrying precedent. Where a couple who are married or in a civil partnership wish to remain together after the transition of a spouse, it may prove impossible for the transgender spouse to truthfully divorce to meet the proposed requirement that applicants be single. The concept of forced divorce has serious human rights concerns and we believe it is legally unnecessary. I defer to Dr. Ryan's recommendations on the validity of marriage and civil status, with which we broadly agree.
In head No. 26, the general scheme proposes to permit transgender and intersex people to be excluded from competitive sport with a view to securing fair competition and the safety of competitors. It is suggested that a more nuanced and individualised approach may be needed to ensure that head No. 26 does not serve to facilitate a blanket ban on the participation of transgender and intersex people in sports. Visibility and role models are vital in educating society and creating a positive environment for transitioning young people. In particular, we suggest that more emphasis may be placed on factors such as the level of hormones in a person's body rather than the simple fact that a person is transgender or intersex. Our previous comments on the age ground and adolescence also have a bearing on this outcome. Transgender people should be allowed full access to the facility of services available exclusively to persons of the preferred gender. In particular, in line with the general principle contained in head No. 9, a person who is transgender or intersex should be treated for all purposes as a person of his or her preferred gender. It is vital, for instance, that transgender and intersex people be entitled to use changing facilities and toilet facilities of the preferred gender. In prisons and Garda holding cells, people who are transgender and intersex should be treated as persons of the preferred gender. The authority would welcome an amendment to the Bill to ensure that this entitlement is specifically and expressly granted and recognised.
The Equality Authority has commissioned a detailed report on this important Bill which we hope to make available to the committee in a number of weeks. I thank the committee for this opportunity to discuss our submission.
Dr. Fergus Ryan:
I thank the committee for inviting me to speak. My overall aim is to offer whatever assistance I can to ensure that the Bill is as strong as possible in upholding the dignity and rights of transgender and intersex people. There is both and legal and a social imperative for this legislation, which is to be welcomed. Ireland stands in continued breach of our international legal obligations, particularly under the European Convention on Human Rights. That this is so has been confirmed by the High Court in the Lydia Foy case, where a declaration of incompatibility was handed down. Currently, a person's sex for legal purposes is fixed for life by reference to biological characteristics that are present at the time of birth. Notwithstanding the lived reality of a person's daily life, Irish law treats the transgender person as being of the gender opposite to that in which the person is living and provides no facility to alter the legal gender to ensure congruence with the person's preferred gender.
In this regard, the law patently fails to respect the dignity of the individual, in a manner which makes the already precarious social situation of the transgender or intersex person even more challenging. While these people live their lives with enormous fortitude and bravery, both national and international research none the less underlines the extraordinary challenges they experience, including regular prejudice in the workplace and community. The failure of the law, as it currently stands, to provide formal recognition of the preferred gender thus places an already vulnerable category of people in a legal quagmire. Recognition would send out a very powerful signal that people in this situation are entitled by law to be treated with dignity and respect.
The scheme of the Bill contains much that is to be welcomed and represents a considerable advance on previous proposals for reform. In fact, it is more progressive in many respects - significantly more progressive in some respects - than equivalent legislation in many other European states. Nevertheless, there are several aspects which are of concern.
In regard to age requirements, the views and evolving capacity of the child should be acknowledged and respected, particularly in light of the recent referendum on children's rights. A young person aged 16 or over may, under section 23 of the Non-Fatal Offences Against the Person Act 1997, validly give an independent consent to surgical or medical treatment. Why then should he or she not be able to make a declaration under this proposed legislation? Moreover, in the case of children aged under 16, it is arguable that parents or guardians should be allowed to apply on the child's behalf. While I can foresee potential difficulties where the parents oppose recognition, there is no reason that a child should be excluded from the scheme where his or her parents are actively supportive and believe it is in his or her best interest. There certainly is potential for resolution by means of a court order, but it is surely neither appropriate nor proportionate to shut the door entirely to applicants aged under 18.
The position of applicants who are married and in civil partnerships is also a point of concern. The Bill effectively requires that any married or civilly partnered applicant who wishes to gain recognition must first terminate or annul the existing marriage or civil partnership. It is worth reflecting on the serious impact this will have on transgender people and their spouses who remain happily married. The first issue is that it is not immediately clear whether such persons can actually divorce, even if they wish to do so. The law requires that in order to divorce, a married couple must be living apart, with no reasonable prospect of reconciliation, for four of the previous five years. "Living apart" in this context requires a mental as well as a physical element; it is not just about living in separate places. Rather, it effectively requires that the parties are living separate lives in circumstances where at least one of them has mentally resolved that the relationship is at an end. Where the spouses are still happily married, I cannot see how they can feasibly establish that they are living apart. Nor will it be possible to show that there is no reasonable prospect of reconciliation. Annulment as an alternative remedy poses different but equally challenging problems, something on which I will be happy to elaborate if there are any questions.
The distress that will be caused to married couples and the impact on the constitutionally protected family of the applicant far outweighs any benefit this requirement may yield. At any rate, the single applicant requirement is arguable unnecessary. As Mr. Merriman pointed out, the validity of a marriage is determined by reference to the situation that prevailed at the time of the marriage itself. Thus, if the parties were respectively male and female at the time of the marriage ceremony, what happens after the marriage is celebrated should not affect its validity or essential character. Judged as of the time of the marriage, therefore, the marriage of a person who subsequently alters his or her legal gender remains a heterosexual one. As such, the single applicant requirement seems both disproportionate and unnecessary.
This Bill provides a useful opportunity to make discrimination on the basis of gender identity explicitly unlawful in the context of employment and the provision of goods and services and to ensure that all transgender people - not just those who are transitioning or have transitioned - are expressly protected from discrimination. The legislation also offers a good opportunity to amend the Prohibition of Incitement to Hatred Act 1989 to include gender identity and gender as grounds upon which incitement to hatred is prohibited. Lawyers, doctors and academics do not have a monopoly of wisdom in this area. It is important that Members of the Oireachtas should speak with and listen intently to those people with direct and daily experience of these issues, namely transgender and intersex people and their families. It is vital that the legislation reflects and addresses their concerns. While there is much to be welcomed in the Bill and it is certainly much more progressive than previous proposals and more progressive, too, than a great deal of what is in place in other EU states, there are nevertheless changes that could be made to make it the best it can be. I thank the Chairman and members for their attention.
Dr. Tanya Ní Mhuirthile:
I thank the committee for the opportunity to contribute to the debate on this important legislation. I begin by highlighting the importance of legal recognition. To be recognisable by the law is essential in order to fully participate in society. By way of illustration, I refer to a case which came before the Australian High Court in 1979 concerning the validity of a marriage between a biologically born woman and her husband who was born with an intersex condition. In other words, he was born with a body which combined both male and female biological traits. As marriage was defined under Australian law as the union of a man and a woman, the court held that Mr. C, being neither a man nor a woman, was incapable of marrying anyone. Where the law cannot recognise a person's preferred gender, that person may be excluded from the exercise of normal legal rights which he or she might otherwise expect to enjoy. The impact of that is enormous.
At present, the legal definition of gender is confirmed by the congruence of the chromosomes, gonads and genitals at birth. There are two aspects of this test, namely the biological fact of congruence and, second, the temporal aspect of the birth moment, which is deemed conclusive. This legislation proposes to enable those who either lack the congruence at birth or whose self-identity does not develop in line with their biological body to register an alteration in their legal gender and to have that change legally recognised. This is an important development and is to be welcomed.
That said, we are here today to discuss the proposals and consider how to improve upon them. In that regard, I have several constructive criticisms to offer, the first of which relates to age limits. It is proposed that access to the rights contained in the legislation be confined to those who are 18 years of age or older. This criterion does not respect the dignity of young transgender or intersex people. From the perspective of the young transgender person, it is important to note that such a person can, under section 23 of the Non-Fatal Offences Against the Person Act 1997, independently give legal consent to undergo gender reassignment procedures at the age of 16. To grant young transgender people the authority to decide permanently to alter their bodies in this way while refusing to recognise legally the result of that alteration is inconsistent from a policy perspective. Furthermore, it may be offensive to the newly inserted Article 42A of the Constitution on children's rights by failing to respect the right of children to form their own views and to have these views respected in line with their age and maturity. Young transgender people can either make these life-changing decisions or they cannot. Where such decisions are supported by parents or guardians, as alluded to by Dr. Ryan, to continue to refuse recognition is even less sound from a legal perspective and may breach Article 42 of the Constitution, which deals with family rights.
This age constraint is particularly restrictive of the rights of intersex children. Intersex can manifest at various stages throughout a person's life, whether at birth, childhood, puberty, in adulthood, or be discovered on autopsy. At present, all births must be registered no later than three months after the birth takes place. Where the existence of the intersex condition does not manifest until after this deadline, children may be stuck with a birth certificate that does not reflect their physical reality or the gender identity they subsequently develop. Such a situation was considered by the High Court in S v. An Bord Uchtála in 2009, which involved a child with an intersex condition who was the subject of a foreign adoption order. The birth certificate and subsequent adoption certificate noted that the child was female. However, upon closer medical examination when the child was brought back to Ireland, it was found that the specific intersex condition was more nuanced than originally thought and thus this child was more likely to identify as a boy. His parents sought to have the adoption certificate amended to reflect this reality so that he could participate fully in society as a boy, attend a boys' school, play hurling as opposed to camogie and so on. The Adoption Board refused the application as it considered granting such a request was beyond its authority. On judicial review, the High Court found in favour of the boy's parents and ordered the alteration of the certificate. Unfortunately, as this was an ex tempore judgment of the court, it is of limited precedential value and other families are not guaranteed as of right that they will secure new documentation for their intersex children.
By refusing to permit those under 18, or their parents or guardians on their behalf, to make an application for legal recognition in a gender other than that recorded on the birth certificate, the proposed legislation continues to discriminate against intersex children. Therefore, I recommend that the scheme be extended to permit applications by, or on behalf of, trans and intersex children and young people.
On 5 December last year, I appeared before the committee to advise it on this very matter in the context of the report of the gender recognition advisory group. On that occasion I criticised the recommendation that applicants would need evidence of a diagnosis of gender identity disorder in order to successfully ground an application. I noted that such a requirement would be contrary to the most recent statements of international human rights law on this issue. Those statements basically recommend that access to legal rights such as gender recognition be decoupled from medical treatment pathways. Effectively, recognition ought to depend upon diagnosis or other medical treatment. From that perspective, I welcome the fact that there is no overt diagnostic criterion contained in the proposed legislative scheme under consideration. However, that is not to say that the proposed legislation depathologises access to legal gender recognition by completely dispensing with the need for diagnosis. Rather, head 6 of the proposed legislation requires that an applicant produce a "statement from his/her primary treating physician, in a form to be prescribed by the Minister, which confirms that the person has transitioned/is transitioning to their acquired gender and that he/she [i.e. the treating physician] is satisfied that the person fully understands the consequences of his/her decision to live permanently in the acquired gender". In essence, applicants will require letters from their doctors confirming they are being or have been treated for a medical condition and that they understand the consequences of an application under this legislation. This is diagnosis in disguise. Yet it goes further than merely confirming diagnosis because the specialist is also required to state that applicants have sufficient mental capacity to fully appreciate the consequences of an application. In this way, the proposed legislation not only maintains the diagnostic criterion, but also obliquely reinforces the prejudice that trans people suffer from a mental disorder. This is at a time when the medical community is seriously considering removing the disorder aspect from trans diagnosis. Consequently, this requirement is considerably outmoded and I recommend that it be dispensed with in its entirety.
In my submission to the committee, I referred to the marriage criterion. The latter has already been covered by many previous speakers. In view of the time constraints involved, therefore, I will refer members to the comments I make on the matter in my submission. I would be happy to answer any questions they may have on the matter.
Mr. Marco Perolini:
On behalf of Amnesty International I wish to thank the committee for inviting us to address it on this issue. We are undertaking a project on human rights violations experienced by transgender people in Europe. More specifically, we are planning to publish a report in the coming months on this issue. Ireland will be one of the countries profiled in that report.
Many countries in Europe have adopted laws or practices enacting legal gender recognition for transgender people. In many instances, the procedures involved are lengthy and require adherence to criteria such as psychiatric diagnosis, medical treatments and single status. In many cases, forced compliance with such criteria violate the human rights of individuals who wish to obtain legal recognition of their gender identity. We welcome the steps Ireland has taken towards providing legal recognition of the gender identity of all individuals. These certainly represent an important step forward in guaranteeing international protection of human rights of transgender and intersex people. However, three key areas of the proposed scheme can be improved upon in order to better protect the human rights of transgender and intersex people. I will briefly comment on each of these and I am sure we will have time to discuss them following all of the presentations.
The first is the requirement under head 6 that a person must provide a statement from a physician in order to obtain a gender recognition certificate. International human rights standards, notably the Yogyakarta principles, argue for procedures providing legal gender recognition to be "efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned". We are extremely concerned with regard to the lack of clarity surrounding the criteria by which a physician will assess whether a person has transitioned or is transitioning as required under the proposed provision. We are also concerned that this requirement could be interpreted as requiring individuals to undergo medical treatment, such as hormonal or surgical procedures. In some instances in other countries, medical evidence for the purposes of legal recognition stems from the interpretation of loosely formulated laws or practices. This is the case in countries such as, for example, Norway and France. For this reason it is imperative - from a human rights perspective - that the eventual legislation should provide clear guidance with regard to what will or will not be required. In order to better comply with its human rights obligation, Ireland should be clear that legal gender recognition should be accessible to everyone - all transgender and intersex individuals - regardless of whether they want to or can access specific health treatments and without the requirement to obtain a psychiatric diagnosis. Forcing individuals to undergo medical treatment as a requirement to access legal gender recognition would lead to violations of several internationally protected human rights, including the right to health and to protection against cruel, inhuman or degrading treatment. Laws recently adopted or discussed in a number of countries and domestic case law have clearly decoupled the issue of legal gender recognition from the requirement to undergo medical treatment. I refer to countries such as Argentina, Germany, Malta, Sweden and Uruguay in this regard.
Our second concern relates to the requirement under head 5 that a person not be in a marriage or civil partnership when applying for a gender recognition certificate. Amnesty International regrets that the law in Ireland does not currently guarantee civil marriage equality for same-sex couples and fully supports the recommendation of the Constitutional Convention that this be changed. However, the current legal inequality regarding marriage should not be used to justify the curtailment of the rights of transgender and intersex people, by forcing them to choose between legal recognition of their gender identities and their existing marriages or civil partnerships. The latter would, in fact, qualify as State-enforced divorces and would violate the family rights of transgender and intersex people in Ireland. We, therefore, urge that this requirement not be included in the Bill.
Our third concern relates to the age restrictions included in the general scheme of the Bill. We are of the view that these restrictions should be reconsidered in light of the requirement on Ireland as a state party to the United Nations Convention on the Rights of the Child, which requires states to treat the best interests of children as a primary consideration in decisions affecting them. Children seeking legal recognition of their gender identity must be given the chance to express their views regarding what constitutes their own best interest and to have these views taken into account according to their evolving capacities. An individualised assessment of the situation of each child would, therefore, be more compliant with the requirements contained in the convention than would be the case with the current absolute restriction. Argentina's gender identity law takes full account of this principle by allowing minors to obtain legal gender recognition if both they and their parents or guardians consent to it. In Europe, countries such as Germany do not require any minimum age for accessing legal gender recognition.
We urge that the Bill, if passed, ensure that the human rights of individuals seeking legal gender recognition are respected and that individuals will not be forced to undergo medical treatment or conform to stereotypical gender norms in order to access legal recognition of their gender identity.
I thank the Chairperson for the opportunity to address the committee and I will be happy to answer any questions which members may wish to pose.
That is great. We will now take questions. I will follow the usual routine by taking contributions from party spokespersons before taking those of other members in the order in which they indicate. There will be a maximum of three minutes per member. I call Deputy Ó Snodaigh.
I will be very brief. I apologise in advance as the Social Welfare and Pensions Bill will start after the Order of Business and, as spokesperson, I have the difficulty of trying to be in two places at once. I might have to disappear. This has been a useful exercise. I thank everybody. Yesterday, right across the board we had a good airing of the same issues that have come up today. That has been useful.
I have one or two brief questions. If I am not present for the answers I will look at the transcript afterwards. My first question is to Ms Woods. I was interested in the temporary certificate that was mentioned. Could she elaborate further on it because when I asked yesterday about what to do with those aged under 16, I was told that the 2004 Act would deal with intersex people. We have heard today that it does not properly deal with the issue in the context of the court case that was mentioned.
Another question is for Dr. Crowley. Yesterday, we heard reference to the capacity of the health service. What is its capacity in terms of gender reassignment operations? If the restrictions are still in place, there are limited physicians in this country who could make an assessment if that is required under current legislation. I got good responses to the questions I asked yesterday and the issues have been well reflected today.
I thank the witnesses for their presentations and the written submissions we read in advance of the meeting. A very strong case has been presented on the various issues, but especially on the fact that the forced divorce provisions are not only legally unnecessary but could be in breach of the Constitution and the European Convention on Human Rights, ECHR. I read Dr. Fergus Ryan's paper in advance of the meeting and we discussed the issue. The point has been well made about how the provisions are arguably disproportionate based on the German precedent which looks at not only its constitutional context but the same European Convention on Human Rights responsibilities as we have. It was decided in that context on the basis of proportionality. A strong argument has been made by the Equality Authority, FLAC and Dr. Fergus Ryan from a constitutional point of view. The Council of Europe Commissioner on Human Rights has written to us on that point. In addition, there was the decision of the German constitutional court.
That makes me even more unhappy with the lack of engagement from departmental officials yesterday on the legal issue. The officials are in the Gallery and I appreciate that they are listening to this meeting. I hope the Department will reflect on the matter. I accept that when we had representatives from the Department at yesterday’s meeting they were not in a position to engage on the issue but it is essential that we would bring the Department back again at a later point to engage. Yesterday, we were simply given a one-line explanation - that there is a constitutional context for the existence of the forced divorce provisions. It is quite clear from the testimony we have had today that there are incredibly strong constitutional arguments that the legislation is completely repugnant not only to Bunreacht na hÉireann, but also to the ECHR as well. It would be bizarre for us to go through two days of hearings and a consultation process on the legislation and not to engage on that legal point and not have the Department discuss it with us. That is not good enough. It makes a mockery of the committee not to engage on such a significant issue. I make a request to the Chairman in that regard. We can discuss later among members that we should invite the Department back to engage on the issue.
The point has been well made about age. The suggestion was made yesterday that 16 year old transgender people will be 18 someday and perhaps they could wait until they are 18. Sadly, that is not always the case because the rate of suicide among young transgender people is incredibly shocking. A US study found that up to 50% of transgender youths will have made at least one suicide attempt by the time they are 18. That is the context in which we are examining the legislation. Yesterday, we heard about the practical, day-to-day struggles people have in terms of participation in the education system and how impossible that makes life for some and why children drop out of school because of the situation. The age issue is crucial in the legislation because one is talking about incredibly vulnerable young people. We have an opportunity to get that right. What we are being asked to do is very simple. The suggestion about temporary certificates, as raised by Deputy Ó Snodaigh, gets around some of the issues. I agree with the point made about the acceptance by parents that surgery is in the best interests of their children. Sometimes parents refuse operations that are important for their children and the courts have upheld their right to do so. We give them responsibility in that regard and if parents agree that their child should be allowed to have their self-identified gender recognised, it is crazy that the State would interfere with that. Perhaps the temporary certificate is a way to get around that for younger people. The age of 16 is generally the age of legal capacity. Do the witnesses agree with the suggestion that from the age of 16 upwards a young person should be able to make a decision in their own right but that before that, perhaps a temporary certificate with the permission of a parent is the best way to address the matter? That deals with the issues raised by some speakers yesterday on concerns about regret. We all have regrets about marriage and other long-term decisions. Negative equity, which is a 35 year commitment, is one that people regretted quite soon afterwards. One cannot make legislation on that basis and the fact that someone might regret it. Again, the vast majority of people who have a transgender operation and have their gender recognised do not. Perhaps a temporary certificate might be a way of getting around the issue in respect of younger teenagers.
I will not take too long. I thank the witnesses for attending. Everyone I heard has put forward a profound argument that the legislation is falling down in two or three key areas. Today, the point was made about sport as well. That is an issue I had not grasped. Hormones can arise as an issue. Perhaps Dr. Crowley could respond on access to sport in the context of preferred gender.
We have reached the crux of the issue in terms of how the committee teases out the constitutional barriers and goes into detail which it must get from the Department of Social Protection. It is clear that the requirement to divorce in order to have access to gender preference is not constitutionally sound. We must examine how to deal with the matter. Most people have asked that the provision on forced divorce would be deleted until the legislation on same-sex marriage is introduced. Even then, it will be an issue in the intervening period and it must be examined.
The matter of age has been addressed by the temporary certificate and how society would feel about such action being taken. It has become more clear to me that 16 should be the age at which a young person can access the legal right to their preferred gender. We are getting to the kernel of the legislation and the committee should take on board the points that have been made, in so far as that is possible. Everyone has highlighted the same issues.
I have another question for Dr. Crowley. All cases must be backed up by medical support based on young children beginning to realise they are not happy in their skin. What sort of medical provisions must be put in place and does the HSE have the ability to do it?
Dr. Philip Crowley:
First of all, I welcome the fact that we are having this debate. I also welcome the opportunity to participate in the debate. It is part of Ireland finally modernising itself in another important way. I am a GP and I lead in the HSE on quality and patient safety. In that role I have sought to work with transgender people to develop a better understanding with them of the issues the health service can meet and that it can sometimes create for transgender people.
In that role I have sought to bring together the leading professional groups who can provide services, support and care to transgender people, with representatives from the transgender community, to ensure we get a more co-ordinated and better model of care. The short answer to Deputy Ó Snodaigh's question is that we have services for transgender people. I do not believe they are well co-ordinated at this point in time. I do not believe they are numerous enough to be readily accessible, no more than other services we provide, but we are talking about services for transgender people today.
We fund a health and education officer to try to work with the transgender community on their own terms and support the community to advocate so that we can better meet their needs. Overall, our role as a health service is to ensure that we understand the extent to which we can both guarantee and ensure the psychological well-being of transgender people and not harm it in any way. We have issues about access to services. There are delays to access services. Some people choose not to access services.
The Deputy specifically mentioned surgery. Currently, surgery is provided in the United Kingdom and we support and fund that provision. The reason for that is, no more than other very specialist areas of care, we would want that surgery to be carried out to a very high level of quality and we do not believe the volume would develop a surgical team of that quality in Ireland. We are very much at one with the transgender community in that understanding but if the situation changed and the volumes developed to an extent that we could develop a highly competent service here, we would examine that.
Taking up the point about sports and hormones, I am not an expert on hormones. I understand an expert on hormones was before the committee yesterday but whatever we do we should seek again to look after the psychological well-being, normalisation and acceptance of transgender people. Obviously, we should ensure that whatever role the medical profession is asked to play they play it to enable people to participate in sport in an agreed fashion, whatever is that fashion. We must accelerate our work with the professional groupings to develop a co-ordinated model of care in partnership with the transgender people, and we will do so.
A vote has been called in the Dáil but I am not going to adjourn the meeting. We will continue because we have a majority of Senators present. As Deputy Ó Snodaigh said earlier, the Deputies who must leave for the vote will read the transcript and therefore it is best to continue the meeting. Dr. Ní Mhuirthile wanted to respond to some issues raised.
Dr. Tanya Ní Mhuirthile:
I will make three small points. First, to pick up the baton from Dr. Crowley, in regard to sport, the International Olympic Committee has an evolving guideline on how to deal with questions of gender and gender identity in sport. I did not address it because of time constraints but it seems mad in the extreme that we would bring in a legislative provision on sport that does not speak to the evolving guidelines those in the sporting community are developing. It is particularly strange that we would bring in something whereby a person would be eligible to compete in the Olympics but not in the local national qualifying event that gets them to the Olympics. That seems bats to me.
I would recommend that if the Legislature feels the burning need to mention sport in this legislation, and the legislation would be no poorer if it were left it out, let it be something general along the lines of sporting organisations ought to be cognisant of best international practice, the evolving guidelines of the International Olympic Committee or some other nice reference like that.
On the point Deputy Collins raised with Dr. Crowley about medical support treatments to wrap around children in particular, that is all very important and I do not disagree with it but that is a different conversation about the provision of services. That is not a conversation about the access to legal rights. S v. An Bord Uchtála shows us the limitations of what happens when the conversation is not focused on the access to legal rights. It means children cannot go to the local boys' or girls' school. We need to have the conversations about accessing legal rights separate from the conversation about accessing medical treatment pathways. As the new Commissioner, Thomas Hammarberg, has consistently reiterated, we must depathologise legal gender recognition. We must not allow access to human rights and legal rights to be predicated on a person having a medical condition or a doctor saying that he or she has or has had a medical condition. That is the second point.
The third point is to respond regarding the temporary certificate. I do not object to it as a type of comfort blanket for legislators if they want it but how is it different from a full gender recognition certificate? I would point out that if it is not different in some meaningful way from a full gender recognition certificate, it is an act of discrimination against young people. I want to make it very clear that we must know how it is different and if it is not different in a substantive and important way, and if it limits one's ability to access certain rights or does exactly what the full gender recognition certificate does, why have it? What is the difference other than enshrining discrimination?
I thank all the witnesses for attending. I cannot believe it is almost 12 months since they were here last; I thought it was only a few months ago. I will not ask a lot of questions but rather will make some comments. Mr. Broden Giambrone from TENI was in my office a few days ago and the poor man probably left with his ears burning because I went through the issues in detail with him and he gave me detailed answers on all I wanted to know. I believe he is in the Gallery so I thank him for that. We spoke in my office about everything the witnesses have spoken about, therefore, I have had questions answered.
I told Mr. Giambrone that I had reservations about the age limit. It is one of the biggest decisions anyone will ever make in their life. I had reservations about those under 18 but the witnesses put up compelling arguments and I can see they are all singing from the same hymn sheet and are passionate about reducing the age limit.
I was very concerned about the court case mentioned. That poor man was left in limbo in that he is neither here nor there. I find it strange, with medical technology, that the sex of a child cannot be determined at birth with ultrasound, MRI scans or whatever. It is difficult to believe that a DNA sample can be taken from remains of someone who died hundreds of years ago but the sex of a child at birth cannot be determined.
This issue is a subject for a range of committees from health, sport, social protection and education. An issue we must examine is the impact of being a transgender student in a school environment. I spoke to Mr. Broden Giambrone at length about that and what we can do as an education committee to put facilities in place because that situation can be awkward in a school environment. Does the student use the boys' or the girls' toilet? Is someone on the boys' or the girls' team? It is the teachers who are faced with the decision and what do they have to do? Guidelines should be put in place for schools that happen to have a transgender student. I do not know the figures, but I am sure not every school will have a transgender student and therefore there is no need for panic about where we will get the funding, but if a child is transgender and they tell the principal, the principal should get onto the Department of Education and Skills. There must be guidelines in place and funding allocated if needs be to provide even a private room for that child until the situation is sorted out.
We heard from Ms Catherine Cross at yesterday's meeting. As a parent I was very interested to hear a parent's point of view. We hear the transgender person's view all the time but we never hear the parents' point of view on the issue.
I apologise for being obliged to leave. Some members were called to arms in the Seanad yesterday and could not remain. However, they have available all of the submissions and transcripts and will go through them in detail. I again thank the witnesses for their attendance.
I welcome the witnesses and thank them for their thoroughness. It is vital to have legal recognition of transgender and intersex individuals. Two or three years ago, during the last term, this Oireachtas joint committee prepared a report on early school leaving and one group that was found to be at risk of early drop-out was that of transgender individuals. As the witnesses have noted, they are at risk of much more harmful effects as a result. In addition, it emerged clearly from the interviews conducted by members that sport was an issue. This issue was not limited to transgender individuals but also affected homosexual individuals in those schools. Consequently, I believe the joint committee should seek an amendment to the Bill that would make sport accessible, along the lines Dr. Ní Mhuirthile mentioned, if international guidelines are place and if athletes are being rated. I would argue that not many would want this because they already are at risk of dropping out because of the very fact of being transgender or because they are having difficulty living with who they are within the birth definition with which they came into the world.
My question concerns the scenario in which parents do not consent in respect of those aged 16 or under. It is understandable that parents would be fearful they might get it wrong. Do the witnesses have empirical evidence of people getting it wrong if they did transition? I am not talking about Ireland but worldwide. For example, I am familiar with a parent two of whose children have declared they are gay. She has absolutely and completely accepted this in the case of her son from the age of 17, and he now is 20. However, she does not really accept that her daughter is gay. The mother is fine about the possibility of her being gay or lesbian but she is not really clear, based on all the science. The greatest fear I have been picking up from parents is that perhaps they are getting it wrong. Do the witnesses have any evidence in that regard?
Not being a member of the joint committee, I thank the Chairman for the opportunity to raise some questions. I also thank the witnesses for their brilliant presentations and for placing such expertise at members' disposal. I will refrain from giving a speech on a topic that is very close to my heart, but I have specific questions to raise. I do not know whether there have been many questions about this issue but my first set of questions pertains to the absence in these heads of Bill of an equality provision on the basis of transgender identity. I note that FLAC, Dr. Ryan and the Equality Authority mentioned this, and perhaps they might comment a little further on it. The witnesses may not have developed this issue much in the context of their submissions because it was not there, but perhaps the joint committee needs a little more information in this regard. It sounds to me as though an opportunity may be missed in terms of placing such a provision within this Bill. If not in this Bill, where should it go if, as law-makers, members agree it is necessary? If it is not done now, when would it happen, and therefore why not do it now? Moreover, do the witnesses believe the inclusion of this provision in this Bill would make sense legally as well as logically? I ask particularly with regard to the policy objective of this law. This is a set of questions to invite the witnesses to comment a little further if they wish. They also may wish to submit a little more thought on this subject because I note that in its presentation yesterday, the Department indicated it was considering that.
My second question is directed to Dr. Crowley, whom I thank for his attendance. I noted a comment he has made previously which was extremely helpful, which is that he believes this law's primary objective ought to support the normalisation of the identity of transgender people and to support their psychological well-being. That is such a fantastic principle, which I believe ought to be behind the Bill. In light of that, can Dr. Crowley then comment on the requirement for evidence in the form of a statement from the treating physician being one of the requirements for gender recognition? As several witnesses in the hearings today and yesterday effectively identified this requirement as a form of pathologising the identity, I invite Dr. Crowley to comment on that. I have sought some legal opinion on the single status requirement and will not say too much as I will have an opportunity to speak to the joint committee about it later. However, I have a question, if witnesses wish to comment a little further. Ms Blackwell has eloquently outlined the disproportionality of the impact on a very small number of people of the requirement for a forced divorce and single status. Moreover, there certainly is a huge difference of opinion as to whether this is needed in respect of constitutional compliance. If one combines the ambiguity of that with the reality of the disproportionality with regard to human rights, is there then a stronger argument for not requiring single status? I support the suggestion by Senator Power that perhaps there could be more exchange with the Department on this issue. I also invite Dr. Ryan to comment a little on this issue because he is aware I remained silent on it in the Bill I introduced. Both Dr. Ryan and Dr. Ní Mhuirthile assisted in the preparation of that Bill and I invite them to comment briefly on the reason we chose that approach. In other words, here is an alternative as an approach in law-making, as distinct from what is before members.
I will be brief as I am aware that another vote will be called. I have a couple of comments to make rather than questions to ask. I also met Mr. Broden Giambrone from Transgender Equality Network Ireland, TENI, last week and I must commend him on a comprehensive discussion and provision of background information into the education issue for me. I am familiar with some of the points raised about the problems with annulment and divorce in this area and agree this is a significant issue involving what is a sad situation for many people. Like my colleagues, I believe this to be an area in which the joint committee can work to improve matters by discussing it and tweaking those things that must be done in this regard.
As I come from the classroom myself, I am very interested in the education point of view. I ask the witnesses to comment on the reports they have received back from the area of education and the problems young people encounter. As I stated, I can imagine this, as I come from a secondary school background myself. It has only been within the past ten years that young people have had the courage to come forward and talk about themselves and their bodies. However, they face huge problems in school. What supports are forthcoming from the Department of Education and Skills when someone comes forward? I understand this may be moving away from the point of today's discussions, but it is important when discussing the age barrier of 18. Do the witnesses believe everything is being teased out within the school system?
As a vote will be called soon, I ask people to keep it brief when responding because we probably will not be able to return to this meeting after the vote. Is it agreed there will be approximately six minutes for the wrap-up? Agreed.
Mr. Brian Merriman:
Briefly, no message should go out from anything we say to the effect that there is an absence of protection of rights for transgender people under the equality legislation. We already have vindicated rights under the Equal Status Act and the Employment Equality Act and will continue to so do.
However, there is a significant dividend to be got from getting recognition. I have absolutely no objection whatsoever to transgender becoming a distinctive ground. There is a great value in giving people a name in law. This could be provided for in the Irish human rights and equality commission legislation which includes bringing in amendments to employment equality, equal status and human rights legislation together. When trying to find an example of how the marriage element might work in practice, I did not find much in the law. However, I did find provision for it in the Roman Catholic Church. It is a requirement for a Roman Catholic priest to be celibate. If an Anglican married priest decides to convert to Catholicism, his marriage is not dissolved, however. If it can be accommodated there, I am sure we will find a way to accommodate it in this case.
There is good practice in third level education. Trinity College Dublin and Waterford Institute of Technology, for example, have done excellent work in this area. They are looking to deal with back-dating records so as to prevent them from being used inappropriately. We will work with first and second level on this issue.
Dr. Fergus Ryan:
With regard to the questions around marriage, it must be remembered this is a difficult area in which no definitive answer can be given. It is not necessarily the case that it would be unconstitutional to have a single status requirement. It is arguable the courts would respect whatever decision is made in this area. There is a strong argument that, given the divorce requirements are so tough in Ireland and potentially unmeetable in certain circumstances, the integrity of the family has been undermined so that the State would have to make a strong case to defend its approach. It is important to note it is not necessarily the case that the Constitution precludes the Legislature from enacting legislation that would recognise equal marriage, specifically in this context or generally. A strong argument has been made by many academics that the Oireachtas is perfectly entitled to enact equal marriage legislation and the courts would defer to the Oireachtas. The Oireachtas may feel its hands are tied in enacting such legislation but, in fact, from case law it is likely the courts would defer.
The European Court of Human Rights has stated that states have a margin of appreciation on the single status requirement. Accordingly, the courts have tended to defer to states on whether they require people to be unmarried or not. In Ireland, the argument can be made that because it is so difficult to divorce here the requirement of single status could potentially be disproportionate. While Article 41 does not necessarily preclude the single status requirement, the courts would be likely to defer to the Oireachtas on whatever choice it makes in this area. There is a strong argument, however, that the impact would be such that the approach would be disproportionate. I do not believe a single status requirement is necessary or proportionate in this context.
It is possible the marriages of transgender people could be annulled on various different grounds. It is not the road to choose, however, as there are significant problems with annulment. One has to deny there should ever have been a marriage in the first place and it precludes access to the various remedies one gets in divorce. The fact parties are left high and dry in this area means we should not go down this route.
Dr. Philip Crowley:
The officials who have developed this Bill have put a fantastic energy and commitment into developing the best Bill possible. On the requirement to have a medical certificate of validation, however, I must listen to those subject to this legislation. They feel this is an obstacle and could lead to potential politicisation which is a development I would certainly not support. We seek to normalise this community’s experience and reduce any psychological harm. I would not be in favour of anything that went contrary to that. Earlier, I pointed out some pragmatic issues regarding access to services for which this provision would create further significant delays.
Ms Noleen Blackwell:
This legislation needs to pass quickly given the length of time it has already taken. There is a need for guidelines for schools as we have come across difficulties for people in this area. It is intended the temporary certificate would not be discriminatory but rather provide recognition for people in transition and young people under 16.
Ms Yvonne Woods:
The Free Legal Advice Centres feel a provision to amend the equality Acts would be good because of the dividends Mr. Merriman mentioned and the fact it would remove the ambiguity in the area. It would mean a transgender person can rely on the law and would provide them with protection from discrimination. We do get calls about this at our centres.
Mr. Marco Perolini:
With regard to age restrictions, why not take inspiration from the legislation in Argentina? There can be conflicts between parents and their children in this area. In some instances, the best interest of the child does not correspond with the parents’ wishes. The legislation should have a provision to deal with this conflict. For example, the Argentinean model is quite interesting in this area because it provides for a light judicial system to address these conflicts.
I realise there are interruptions due to the votes in the Dáil. If there are any other matters that the delegations would like to clarify further, they can send them to the committee. I thank the delegations for attending the committee this morning.