Kevin Humphreys (Dublin South East, Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I apologise for the confusion earlier. I thought the previous business would take a little longer. I am delighted to have an opportunity to introduce this important legislation in the Dáil. While the number of people directly affected by the Gender Recognition Bill 2014 will be relatively small, this legislation carries a deep significance for those who will, for the first time, have their preferred gender formally recognised by the State for all purposes. This significance extends to their families, friends and communities. The Tánaiste and I are proud to introduce this legislation and thereby progress the civil rights of transgender people. The formal recognition of the identity of transgender people is a mark of the growing maturity of Irish society. It is an important element of the programme for social reform that is being progressed by the Government.

All Deputies will be aware that the lack of legal recognition for transgender people is a long-standing issue. The High Court declared in 2008 in respect of the case brought by Dr. Lydia Foy 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 preferred gender of transgender people. It is appropriate that I pay formal tribute to Dr. Foy, whose unstinting efforts over many years played a crucial part in bringing us to this point. The programme for Government included a commitment that transgender people would be provided with legal recognition. The publication in July 2011 of the report of the transgender recognition advice group was a significant milestone. Things have moved very far forward since then, as reflected in the Bill before the House today. Following the publication of the advisory group's report, my Department engaged in significant additional consultation and research. The views of a range of organisations and individuals that have experience and expertise in this evolving and complex area were sought and considered.

Since I was appointed Minister of State at the Department of Social Protection last year, I have been privileged to meet members of the transgender community, as well as a range of organisations and public representatives with a particular interest in this issue, on many occasions. In July 2013, the Government approved the publication of the general scheme of the Bill and its referral for pre-legislative scrutiny to the Joint Committee on Education and Social Protection. Officials from my Department, representative groups and legal and medical experts participated in hearings held by the committee in October 2013. The committee's report was published in January 2014. The report and the contributions made at the committee hearings have made a valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation. I thank Deputy Ó Snodaigh, who is present in the Chamber, and Senator Zappone, both of whom introduced Private Members' Bills in this regard that were helpful in progressing matters. They have worked very hard in this area. They have met groups similar to those I have met. Following the joint committee's report, the Tánaiste brought the matter back to the Cabinet and the revised general scheme of the Bill was published in June of last year.

The fundamental concept underlying this legislation is relatively simple. The preferred gender of a person who has been issued with a gender recognition certificate by the Department of Social Protection will be formally and legally recognised for all purposes, including dealings with the State, public bodies and civil and commercial society. For many transgender people, their birth certificate is the last remaining personal document that does not show their preferred gender. This legislation allows them to obtain a birth certificate showing their preferred gender. The person whose preferred 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. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.

The Bill uses the term "preferred gender", in line with a recommendation made by the Joint Committee on Education and Social Protection. This approach facilitates applications for gender recognition from people with intersex conditions. The application process for a gender recognition certificate will consist of a statutory declaration by the applicant that they intend to live permanently in their preferred gender and a supporting statement by their primary treating medical practitioner that they have transitioned or is transitioning to their preferred gender. The physician must be a person who has a particular expertise in the care pathway for transgender people. This is the case for both endocrinologists and psychiatrists, subject to their particular practice. The process will not require details of care, such as medical history or confirmation of a diagnosis. The person will not have to confirm that they have been living in their preferred gender for a specific period of time prior to their application. This is a much more progressive, less onerous and less invasive approach than that adopted in many other countries in the EU and elsewhere. I hope it will be recognised as such.

As Deputies will be aware, the Bill requires that an applicant for gender recognition is single, pending the outcome of the referendum on same-sex marriage that is due to take place in May of this year. I accept that this is not ideal. The existing constitutional prohibition on same-sex marriage is a blockage in this respect. I am happy to confirm that my colleague, the Minister for Justice and Equality, has agreed that the marriage Bill, which will be enacted if the referendum is passed by the people, will include provisions to amend this legislation to remove the requirement to be single.

The joint committee recommended that the minimum age for gender recognition be reduced from 18 to 16. The Bill provides for applications from 16 and 17 year olds, but with significant safeguards attached which seek to balance the rights of applicants with the need to protect their interests at a vulnerable age. In particular, it will be necessary to secure a family Circuit Court order in any such cases, exempting the applicant from the standard requirement of a minimum age of 18 for gender recognition.

This Bill was introduced in the Seanad in January. I thank Senators for their extensive engagement, which ensured the key features of the legislation were thoroughly debated. Several amendments were passed on Report Stage in the Seanad. I strongly believe it is best practice to have a review process for new and significant legislation such as this. It was always my intention that there would be a review of the legislation. I was happy to bring forward a Government amendment to make this review statutory. Section 7 of the Bill now provides for a review of the operation of the Act to be carried out not later than two years following the coming into operation of the Act. It is critical that the impact and effectiveness of this important legislation is carefully assessed over time. The phrase "based on a medical evaluation" was removed from several sections of the Bill to make it absolutely clear that there is no requirement in the application process for a medical practitioner to carry out a specific medical evaluation such as a physical examination of an applicant for a gender recognition certificate.

I will now summarise the main provisions of the Bill. Sections 1 to 4 are standard provisions in relation to the Title, the commencement process, the definition of terms, the power to make regulations and the costs of administration. Section 5 sets out how documents under the Act are to be issued. Section 6 provides that records of decisions made by the Minister under the Act will be maintained and that an annual report on the operation of the Act shall be laid before the Oireachtas.

Section 7 provides for a review of the operation of the Bill to be carried out not later than two years following the coming into operation of the legislation and that 12 months after the commencement of the review the Minister will report to the Houses of the Oireachtas. It is important to carry out a review and that the 12 month period for review is set out in the legislation.

Section 8 provides that the Minister for Social Protection shall be the decision-making authority on the issue of gender recognition certificates.

Section 9 sets out the conditions a person is required to meet to be eligible to apply for a gender recognition certificate. An applicant must be at least 18 years of age on the date of application, unless he or she meets the requirements of section 12, and he or she must not be in an existing marriage or civil partnership. In addition, he or she must meet the evidential requirements set out in section 10.

Section 10 addresses the evidence on qualification requirements. It includes proof of identity and either a certificate from the relevant register of births or proof of ordinary residence in Ireland. Also required is a statutory declaration stating the person is not in a marriage or a civil partnership, has a settled and solemn intention of living in the preferred gender for the rest of his or her life, understands the consequences of the application and makes the application of his or her own free will. The application must also be accompanied by a statement from the applicant's primary treating medical practitioner that confirms that the applicant has transitioned or is transitioning to his or her preferred gender and that he or she is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in the preferred gender.

Section 11 deals with applications from persons who have already had their preferred gender recognised in another jurisdiction. These applicants will have to show to the satisfaction of the Minister that the requirements which led to his or her preferred gender being recognised in the other jurisdiction are at least equivalent to those set out in the Bill.

Section 12 addresses applications for a gender recognition certificate by persons aged 16 and 17 years.

Section 13 provides that the gender recognition certificate shall contain the person's forename and surname as specified by the applicant in his or her application, his or her date of birth and preferred gender. The Minister shall notify the Registrar General or the Adoption Authority of Ireland, as appropriate, that the certificate has issued and will provide them with a copy of the gender recognition certificate, a copy of the person's birth certificate and his or her name and contact details.

Section 14 provides for the revocation by the Minister of a gender recognition certificate if information or facts come to the Minister's notice that would have led to a refusal of the application. The person concerned will have the right to appeal the decision under the provisions of section 17. Where a gender recognition certificate is revoked under this section, it will always be deemed to have been void and not in effect.

Section 15 provides for the revocation by the Minister of a gender recognition certificate in the event that a person applies to revert to his or her original gender and provides satisfactory evidence to support the application. If the application to revoke is declined, the person concerned will be informed of his or her right to appeal. Where a gender recognition certificate is revoked under this section, the rights and liabilities of the person concerned in his or her preferred gender prior to the date of revocation will not be affected.

Section 16 provides for a situation where a person applies to the Minister seeking to have a clerical error or an error of fact in the content of a gender recognition certificate corrected.

Section 17 provides for appeals in respect of gender recognition certificates.

Section 18 provides for the fundamental principle that, once a gender recognition certificate is issued to a person, his or her gender becomes the preferred gender for all purposes. The effect of legal recognition is not retrospective but shall be only from the date specified on the gender recognition certificate.

Section 19 provides that a change in a person's recognised gender under the Bill will not affect the responsibilities of that person as a parent of a child born prior to the issue of a gender recognition certificate.

Section 20 provides that where a person has had his or her preferred gender recognised, it does not affect the distribution of property under a will or other instrument made before the day on which the Bill comes into force. For wills or other instruments made after that day, the general principle of the Bill will apply, for example, if a will refers to the eldest daughter and a person who was previously a son becomes the eldest daughter following recognition in the preferred gender, that person will inherit as the eldest daughter.

Section 21 relieves trustees or personal representatives of any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he or she is responsible for distributing.

Section 22 makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the preferred gender. If, for example, an instrument governs succession by reference to the eldest daughter and there is an older brother whose gender becomes female under the Bill, the person who was previously the eldest daughter may cease to enjoy that position. It allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court.

A number of sexual offences in this jurisdiction are gender specific. Section 23 provides that where criminal liability would arise but for the fact that a person, either the victim or the perpetrator, has been issued with a gender recognition certificate, such liability will continue notwithstanding the gender change. A person whose preferred gender has been recognised may still be physically capable of committing a sexual offence or being the victim of a sexual offence associated with the opposite gender.

Section 24 amends section 2 of the Civil Registration Act 2004 to take account of the provisions of the Gender Recognition Bill 2015.

Sections 25 and 26 provide for the establishment and maintenance by the Registrar General of the register of gender recognition.

Section 27 inserts a new Part 3A into the Civil Registration Act 2004. The new provisions of Part 3A are as follows. Section 30A provides definitions of terms used in the Act.

Section 30B provides that a person to whom the Minister has issued a gender recognition certificate and for whom there is an entry in the register of births or the adopted children register may apply to the Registrar General to be entered on the register of gender recognition. The entry will list the person's name, surname and preferred gender as stated on the gender recognition certificate, together with the other particulars contained in the person's original entry in the register of births or the adopted children register, as appropriate.

Section 30C provides that the Registrar General will keep an index to the register which will not be open to public inspection or search save by the person to whom the gender recognition certificate has been issued or, if that person is deceased, the surviving next of kin.

Section 30D provides that the Registrar General shall also maintain a confidential index that will link the entry in the gender recognition register with the corresponding original entry in the register of births or the adopted children register.

Section 30E provides that where a gender recognition certificate is revoked, the Registrar General will, in turn, cancel the relevant entry in the register of gender recognition. The section also provides that where changes are made to an entry in the register of births or the adopted children register for which there is a corresponding entry in the register of gender recognition, the latter will also be changed accordingly.

Section 28 of the Bill provides that the register of gender recognition is not subject to the provisions of section 61 of the Civil Registration Act. This effectively excludes all persons other than the holder of the gender recognition certificate from being able to draw a birth certificate from the register of gender recognition.

Section 29 amends section 63 of the Civil Registration Act to allow for the amendment of errors in the register of gender recognition.

Section 30 amends the First Schedule to the Civil Registration Act 2004 to set out what will be entered in respect of an entry in the register of gender recognition.

Section 31 provides for amendments to the Irish Nationality and Citizenship Act 1956 which will allow for the establishment and maintenance of a register of gender recognition of foreign births by the Department of Foreign Affairs and Trade.

Sections 32 to 35, inclusive, provide for amendments to the Adoption Act 2010 with regard to the establishment and maintenance of a register of gender recognition of intercountry adoptions by the Adoption Authority of Ireland.

Section 36 makes it an offence under the Bill knowingly to provide false information in an application for a gender recognition certificate or to fail to surrender a gender recognition certificate which has been revoked by the Minister under section 14 of the Bill.

Section 37 provides that cases relating to applications from 16 or 17 year olds for gender recognition certificates under section 12 or appeals against decisions by the Minister under section 17 may be heard by a judge of the Circuit Court in the area in which the applicant concerned ordinarily resides.

Section 38 provides for an amendment to the Passports Act 2008 which provides that where a person is applying for a passport in his or her preferred gender, the gender recognition certificate will be recognised for this purpose. The Passports Act will continue to provide for the issuing of passports to transgender persons who are unable to apply for gender recognition certificates on the grounds that they are not single.

As already stated, this legislation is long overdue. Getting to this point has been a difficult and challenging undertaking due to the complex and sensitive issues involved. I again thank all those who contributed to the process.

Earlier, I mentioned the two-year review provision that has been inserted into the Bill. This provision states that, not later than 12 months after the commencement of the review, the Minister will make a report to each House of the Oireachtas of the findings made during the review and of the conclusions drawn from those findings. I strongly believe that this Bill represents a very progressive approach towards meeting the obligations of the State to the needs of transgender persons. The Bill has at its core a genuine commitment on the part of the Government to enable transgender persons to be recognised for all purposes in their preferred gender. This recognition is a momentous event in a person's life and it is absolutely essential that it is facilitated in a serious manner that maintains the integrity of the registration process.

The provisions in the Bill contain some very significant advances on previous proposals and, as I said, compare very favourably with the equivalent legislation in many other countries in Europe. This is legislation which has been needed for a long time. Members of the transgender community naturally wish to avail of the opportunity to have their preferred gender formally recognised as soon as possible. I look forward to an informed debate and to hearing the views of Deputies on the measures contained in the Bill.

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