Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 13:

In page 8, line 24, to delete "may" and substitute "shall".

I congratulate the Minister for Foreign Affairs on including this provision in the Bill. The provision is important because it recognises reality in this area, particularly for individuals who find themselves in a position of what the Bill refers to as "gender reassignment". In circumstances where a person has changed gender from male to female or vice versa, the provision confers on the Minister discretion to issue a passport based on the new gender that individual is recognised as possessing.

This is a welcome provision and it shows the Minister for Foreign Affairs recognises that, to date, Ireland has been in breach on the European Convention on Human Rights in respect of this matter. The amendment proposes that instead of his having a discretion to recognise the position of what are known as transgendered persons, the Minister will have an obligation to do so. That is why I propose to substitute the word "shall" for that of "may". I hope the amendment will be taken on board. In my view it is the intention of the Minister for Foreign Affairs to give to transgendered persons the recognition they are seeking.

It is hugely anomalous that we will be in a position to issue passports to people who may be described as male, while they may only be able to obtain birth certificates which describe them as female or vice versa. Mr. Justice McKechnie, in a case involving Dr. Lydia Foy, handed down a judgment some time ago which stated that, in so far as transgendered persons cannot obtain new certificates of a similar nature to those allowed under the Gender Recognition Act in England, our law is in violation of the European Convention on Human Rights. The Government was invited to indicate that it would address the issue. The matter arose again in the High Court last week, some time after the delivery of the main judgment in which the formal orders were drawn up. For the first time a decision was delivered by the Irish courts — under the legislation which allows them to consider the European Convention on Human Rights — to the effect that the State is in violation of Article 8 of the European Convention on Human Rights.

I welcome the change the Minister for Foreign Affairs is making. However, my opinion is that the provision should be obligatory and not discretionary in nature. The Minister of State, Deputy Michael Kitt, has seisin of the Bill and I suggest to him that those in Cabinet with responsibility for the birth registration laws should ensure that we have compatible legislation in that area. This would allow transgendered persons to obtain new certificates detailing their gender, thereby allowing them to secure identity documents and birth certificates reflecting their new sexual identities. Under the Gender Recognition Act in Britain, this does not affect the original birth certificate or a marriage certificate. However, it allows the state, in its records, to recognise the new reality in respect of individuals living within its borders and it allows them to obtain documentation which reflects that reality.

The Passport Bill is welcome because it reflects the reality to which I refer. However, it will cast a stark light on the peculiar circumstances in which people will themselves be described on their passports as female and in the only certificates they can obtain relating to their births as male, or vice versa.

Will the Minister of State take on board the amendment? In my opinion, it is the intention of the Minister for Foreign Affairs to implement the legislation in the way I have outlined. His doing so will give solace to the small number of people in the transgender community.

Will the Minister of State ask the Minister to draw to the attention of Cabinet members that we will have a major anomaly whereby our passport legislation will recognise reality but where our birth registration laws will be blind to it? This issue was addressed by the introduction of specific legislation in the United Kingdom. In his judgment, Mr. Justice McKechnie invited the Government to bring the State into line with the European convention by introducing similar legislation. The Government has not given priority to introducing such legislation. In the context of the court decision and the Bill before us, we should bring all legislation in this country into alignment with the convention in order to reflect the factual reality of the gender of those who seek services and certification from the State which, for different reasons, they will need as they go through life.

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