Dáil debates

Friday, 9 May 2014

Report on the General Scheme of the Gender Recognition Bill 2013: Motion


1:25 pm

Photo of Joan BurtonJoan Burton (Dublin West, Labour) | Oireachtas source

I thank all Deputies who contributed so thoughtfully to this discussion on the proposed legislation. In the context of sensitive or ground-breaking legislation, in 1996 I brought the Refugee Bill before the Dáil and Seanad, which was passed. In that Act, which provides for people seeking protection under the Geneva Convention, I, on behalf of Ireland, as people interested in these issues will be aware, introduced ground-breaking provisions. In the context of what subsequently happened in more recent decades in countries such as Uganda, this significant step to include in the definition of the Refugee Act as a grounds for protection under the Geneva Convention gender, sexual orientation and trade union membership was important. Ireland was very much to the fore in doing this. Since then, a number of other countries have followed the example we set almost 20 years ago in this House.

Today's debate has been helpful in enhancing our understanding of what are not only complex and sensitive issues but practical issues for people in terms of how they live their lives, as stated by Deputy Lyons, be that the people depicted in Brian Merriman's play or people living now. It is important that we are aware of this. We all recognise that the lack of legal recognition for transgender people is a significant and long-standing issue. As I said earlier, there is a commitment in the current programme for Government on the part of Fine Gael and the Labour Party to provide legal recognition for transgender persons. I am happy to say this legislation is being progressed.

Formal legal recognition through the issuing of a gender recognition certificate by the Department of Social Protection will mean that a person's acquired gender will be fully recognised by the State for all purposes. This will, I hope, be a hugely significant and positive matter for the people involved. I want to emphasise that during preparation of the legislation the Department of Social Protection engaged in significant additional consultation and research. 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. The aim of the legislation is a more progressive and dignified process which protects all concerned and ensures the registration process will be robust and constitutionally valid. An inevitable requirement when putting in place legislation is that we respect the Constitution of our State. Obviously, there are remedies with regard to changing to the Constitution, which are outside the remit of this legislation. For example, Members are aware that a referendum on same-sex marriage and marriage equality will be held next year. Assuming the people consent to the recognition of marriage equality in the Constitution, this will contribute to addressing some of the issues raised.

The Bill contains provisions which are significant advances on previous proposals and compare favourably with equivalent legislation in many other countries in Europe. I will come back to this matter later. The provisions with regard to the application and validation process seek to be respectful to all concerned and to be prudent and practical and preserve the integrity of State records. I expect that the legislation, including the committee's report, will be considered at Cabinet shortly. I cannot provide a definitive response today on the various recommendations in the committee's reports but, following Government consideration, the general scheme of the Bill, with any agreed revisions, will be referred to the Office of the Parliamentary Council for drafting with a view to publication of the legislation later this year. I would like to see this important and ground-breaking legislation enacted as soon as possible thereafter. Reference was made to Dr. Lydia Foy. I am conscious that she has had a sustained interest in this matter over a lengthy period. I wish to see this legislation enacted.

A number of specific questions were raised, to which I will now respond. Deputy O'Dea and others raised issues around terminology and the evolution of language in this respect. To encourage debate on this issue when I became Minister, I published the report of the gender recognition advisory group. Notwithstanding all of the good work done in the context of that report, it reflects the language of a somewhat earlier era. In regard to the most appropriate term to be used in the legislation, Deputy O'Dea commented on "acquired" and "preferred". I am aware that there is ongoing development in language use. What is most appropriate in the legislation will be considered as part of the drafting process. As rightly pointed out by Deputy O'Dea, in terms of wider European legislation, it is generally necessary for draftspersons to have regard to the need for language that is effective and robust. We can come back to this issue during debate on the Bill.

On the equality issues raised, the general scheme of the Bill as approved by Government on 16 July 2013 does not include specific provisions with regard to equality for transgender people, as the prohibition of discrimination on the grounds of gender is already interpreted in accordance with EU law as also prohibiting discrimination against transgender persons. In response to Deputy Crowe's references in this regard, they are considered under gender grounds in accordance with EU and Irish law.

Questions were asked about physicians and doctors. Following consultation with the HSE, the Royal College of Surgeons in Ireland and the Irish Medical Organisation, the term being considered for inclusion in the legislation is "primary treating medical practitioner". The intention is that this term will be defined in legislation which will require that the medical practitioner be registered by the Medical Council on a specialist register under section 47 of the Medical Practitioners Act 2007. Again, this is subject to advice from the Office of the Parliamentary Counsel. The idea is that the medical consultant involved in the patient's care will be the person providing the letter. This is most likely, as I said, to be an endocrinologist or a psychiatrist, or a paediatrician in the case of a younger person. The legislation will also require that the person be practising in the field of the care and treatment of transgender and intersex persons. There is no reference in the proposed legislation to any surgery or specific treatments. Anybody who has had the opportunity to talk to people involved or people from the transgender community will know that medical practices and treatments are advancing rapidly. The legislation will relate simply to people who are practising in the field of the care and treatment of transgender and intersex persons.

On the requirement for the applicant to be single, there is no easy solution. Some Deputies acknowledged that the choice was either to risk being in breach of the Constitution, by effectively creating a same-sex marriage, or to risk breaching the European Convention on Human Rights by forcing the couple to divorce. There is no quick legal fix that could turn such a marriage into a civil partnership. Article 41.3.2° of the Constitution requires a divorcing couple to live apart for four years. I can understand people will be disappointed about this, but I understand and hope the people will be able to address this issue in a referendum later next year. I hope they will consent to the changes which will clear the way constitutionally to address these particularly sensitive issues.

Let me address the comparisons with other jurisdictions. A lot of research has been done on this matter by the Department. I understand the proposed legislation compares very favourably with legislation in other countries, particularly the United Kingdom, where the Gender Recognition Act 2004 is based on the use of an expert panel and requires evidence of diagnosis. This has been very offensive to people who are transgender or transitioning. A diagnosis of gender identity disorder is now rightly seen as being outdated. The GRAG report, based on extensive consultation, shows we have moved on from this.

The Netherlands recently updated its legislation, which will come into effect this year. The application process is very similar to that under the Irish legislation. It consists of a combination of self-declaration and validation by a medical professional who is an expert in the field of caring for and treating transgender persons.

I look forward to the legislation being brought forward as early as possible. There is a great deal of legal work to be done by the Office of the Parliamentary Counsel. After that work has been completed, I look forward to appearing in the Dáil as soon as possible. I thank the members of the joint committee and everyone who spoke in the debate.


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