Willie O'Dea (Limerick City, Fianna Fail) | Oireachtas source

On the question of divorce, I recognise the legal difficulties involved and the fact that successive Attorneys General have taken the view that a constitutional referendum will be required to allow for same-sex marriage. If one member of a married couple changes gender and he or she becomes of the same sex, from the point of view of the law, his or her union could be described as a same-sex marriage. It is rather bizarre that the Constitution protects the institution of marriage and that we are going to introduce legislation which is going to force happily married people - some of whom will want to remain married - to divorce or separate in order that one member of the couple can obtain a certificate which bestows on him or her a legal identity. Having such an identity is a fundamental right.

It must be borne in mind that the divorce regime is extremely restrictive. People are obliged to live apart for four out of the past five years before they can divorce. Therefore, a person who is happily married, changes gender and seeks a gender identity certificate will be obliged to leave his or her spouse and live alone for five full years before he or she can obtain it. I am not an expert on divorce law, but I understand one must prove that there are irreconcilable differences before a divorce can be granted. This means that two married people who want to stay together but who will be forced to obtain a divorce simply for the purpose of obtaining a gender identity certificate will be obliged to lie. It is obvious the marriage of two people who want to remain together has not broken down irrevocably.

On the question of preferred as opposed to acquired gender, I understand what TENI has stated. I also understand the arguments on both sides. I am broadly in favour of the committee's recommendation in this regard, but the only caveat I would add is that there is a rich harvest of European case law and international human rights law which, particularly in recent times, has come down very much in favour of extending the rights of transgender people. The judgments handed down in the various cases involved are based on the concept of acquired, as opposed to preferred, gender. There could be a difficulty if someone seeks to use the case law and human rights law to which I refer before the Irish courts which he or she would be perfectly entitled to do because the precedents set are based on the concept of acquired gender. Obviously, those on the opposite side of the court would be able to argue that the latter was different from the concept of preferred gender.

I welcome the Minister's announcement on discrimination against people who want to engage in sports. Frankly, I cannot understand the relevant head and time does not permit me to dissect it. However, I look forward to dealing with the matter when the Bill is brought before the House.

I am disappointed that the Minister did not make an announcement on a particular issue. The joint committee made a very simple recommendation to the effect that the equality legislation should be changed in order that gender identify might be added to the existing nine grounds on which discrimination is prohibited. It would be quite easy to make the relevant amendment to the equality legislation. Perhaps the Minister might provide a commitment in this matter. I do not believe she would have great difficulty in persuading the Cabinet on the import of this matter. In addition, I do not believe the discussion on it would be particularly long.

Every day that passes is one which takes us further away from the Foy judgment. We have been waiting a long time for the proposed legislation and the people to whom it relates have been obliged to suffer both discrimination and a lack of legal identity for long enough. There is a need for us to get on with it, but it is important to ensure we get matters right. The Minister should advocate to her Cabinet colleagues the approach suggested by the joint committee and bring the final Bill before the House as soon as possible.

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