Joan Burton (Dublin West, Labour) | Oireachtas source

I start by thanking the Chairman and all the members of the Oireachtas Joint Committee on Education and Social Protection for the report the committee prepared on the general scheme of the gender recognition Bill. The contents of the report of 14 January and the contributions made at the hearings the committee held on 23 and 24 October 2013 have made an important and valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation.

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 was a commitment in the current programme for Government that transgender persons would be provided with legal recognition. In July 2011, the report of the GRAG was published and the Government decided at that time that legislation would be drafted in line with its recommendations. However, subsequent to the publication of the GRAG report, my departmental officials and I engaged in a significant amount of additional consultation and research during the preparation of the legislation. The views of a range of organisations and individuals, who have experience and expertise in this evolving and complex area, including transgender persons and their representative organisations, were sought and considered.

On 16 July 2013, I secured Government approval for the publication of the general scheme of the gender recognition Bill. The Bill provides for the recognition of the acquired gender of transgender people aged 18 and over, and who are not married or in a civil partnership. The legislation will also facilitate persons with intersex conditions. Once enacted, the main effects of the legislation for those wishing to have their gender recognised will be as follows. The person will be officially legally recognised by the State as being of the acquired or preferred 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.

The provisions in the Bill contain some very significant advances on previous proposals and compare very favourably with equivalent legislation in many other countries in Europe.

Following its publication, the general scheme of the Bill was referred for pre-legislative scrutiny to the Oireachtas Joint Committee on Education and Social Protection in July 2013. Officials from the Department of Social Protection, representative groups and legal and medical experts participated in hearings held by the committee in October and the committee's report was published in January 2014. Since its publication, I have given careful consideration to the report and have again consulted with a range of persons and organisations with particular experience and interest in this matter.

The Government agreed when discussing the general scheme of the Bill last year that if significant changes to the legislation were recommended by the committee, I would bring the matter back to Cabinet for the committee's recommendations to be considered. The report's recommendations cover a range of issues, including elements of the application process for gender recognition, the minimum age for recognition, the requirement for the applicant to be single, aspects of equality legislation and matters relating to participation in sport. As these issues will shortly be the subject of Cabinet discussion, I cannot provide a definitive response on the various recommendations in the report. However, I can comment on two issues, the application or validation process and the committee's recommendation regarding the development of guidelines on supporting the inclusion of transgender young people in schools.

In regard to the application or validation process, the committee has recommended that the current wording in the Bill with respect to evidence of transition should be reconsidered to address the concerns raised at the hearings that people should not be stigmatised as a result of the requirements in this regard. In July 2013, I secured Government agreement for a less intrusive and more streamlined approach which combines self-declaration with a supporting letter of validation from the person's primary physician, but does not require any details of the care pathway, surgical procedures, etc., that would have been explicit in the expert panel approach. The approach we have taken represents what is done in European countries that have recently advanced legislation. The revised approach is administrative. It involves an application to the Department of Social Protection rather than to an expert panel. The application is to include a statutory declaration by the applicant that he or she has a clear and settled intention of living in the acquired gender for the rest of his or her life, that he or she understands the implications of the application and that he or she makes it of his or her own free will. This new approach comes closer to the self-declaration model that many NGOs in the area advocate and dispenses with the need for a medical diagnosis to accompany the application.

An intersex person has a variation in their sex characteristics which does not allow them to be distinctly identified as male or female. Unlike the process proposed by the gender recognition advisory group, the new model in the general scheme of the Bill facilitates intersex persons in being included under the scope of the legislation and allows them to apply to be recognised in their acquired or preferred gender, if they wish. The aim is a more progressive and dignified process which protects all concerned and ensures that the registration process will be robust. The application process will be based on a statutory declaration to the Department by the person that they intend 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.

The legislation will specify the type of medical practitioner providing the supporting letter, including endocrinologists, psychiatrists and surgeons, and will also require that the person is practising in the field of care and treatment of transgender and intersex persons. The application process will not require details of 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 their transition. These are both significant changes from the original recommendations made by the gender recognition advisory group.

I strongly feel that the application and validation process proposed in the general scheme of the Bill is progressive and does not in any way stigmatise persons who wish to apply for a gender recognition certificate. I know this was a concern for a number of members of the committee who contributed to the debate. The provisions in regard to the application process seek to be respectful to all concerned, to be prudent, practical and to preserve the integrity of State records.

The committee's recommendations and the guidelines on supporting transgender young people in schools are significant issues that have been raised often. The recommendation regarding the development of guidelines on supporting the inclusion of transgender young people in schools is within the remit of my colleague, the Minister for Education and Skills. When I recently met a number of parents of transgender children, the Minister also met them and expressed his strong support on this issue.

I would like to thank the Oireachtas committee again for all the work it has done in preparing the report. I expect the legislation and the committee's report will be considered at Cabinet shortly. Following Government consideration, the general scheme of the Bill, with any agreed revisions, will be referred to the Office of the Parliamentary Counsel for drafting, with a view to being published this year. My aim is to have this important and ground-breaking legislation enacted as soon as possible after that.

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