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

The Minister of State said that he wants to thank the people who have brought us to this point. I wish to be associated with his comments in that regard, which relate to groups such as Transgender Equality Network Ireland, TENI, and LGBT Noise, individuals such as Michael Farrell, organisations such as Amnesty International, the former Equality Authority and the great heroine of this particular saga, Dr. Lydia Foy who, by her persistence, courage and tenacity, has earned the undying gratitude of the transgender community.

The Minister of State also indicated that we are late in introducing this Bill, which is true. Being late might normally be a matter for condemnation but there is always a silver lining. The big advantage of being late in introducing legislation of this nature is that it affords one the opportunity to assess how other countries have dealt with the problem. One can consider what the authorities elsewhere proposed, what they proceeded with and the changes they are being obliged to make in the light of experience. Of course, experience is a great teacher. When I eventually emerged from college following many years of study, I discovered that I learned more in six months practising in what was then Price Waterhouse than I had during my entire time in third level education.

We have the benefit of the international experience to which I refer but, unfortunately, we do not seem to have taken it on board. The original proposals from the review group were a bit of a joke, quite frankly. We have come a long way from those proposals, thank goodness. However, we have deliberately placed ourselves behind some of the legislative advances that have been made in light of the experience elsewhere in the world. We have positioned ourselves between the original proposals, which were completely deficient, and what has been done by the authorities in more advanced countries in light of experience gained. The Bill is a form of Irish solution to an Irish problem. We certainly cannot state that it is based on international best practice. The Minister of State need not take my word for this, he can take that of Dr. Michael O'Flaherty, professor of human rights at University College Galway, who has done a great deal of work in this area and who is an acknowledged expert in the field. Writing in The Irish Timeson 10 February 2015, Dr. O'Flaherty, stated:

The Gender Recognition Bill 2014, currently before the Oireachtas, is a very belated legislative attempt by the State to comply with the findings of the European Court of Human Rights in the case taken by Dr Lydia Foy. It is no more than that; it is certainly not progressive. Instead, it draws on the outdated legislation of some states to establish for Ireland a gender recognition framework that is disrespectful to transgender persons, out of line with international good practice and at odds with the country’s international human rights commitments. It will be an avoidable shame if this Bill is adopted without the benefit of significant amendment.

Who are we to argue with these, the views of a man who, as already stated, is an acknowledged expert in the field?

My party will be seeking to amend the Bill on Committee Stage. I have been informed in the past few minutes that Committee Stage will be taken next Wednesday. Given that Second Stage is being taken today, we will be obliged to rush in order to submit our amendments by this evening. This is happening despite a commitment in the programme for Government to the effect that Committee Stage debates relating to all legislation would not take place until a fortnight after Second Stage concluded in order to give people an opportunity to reflect. I have questioned the Taoiseach about this commitment for the past four years and he has made promises in respect of it during that entire period. However, there is still no sign of it being honoured.

I am amazed with regard to the lack of consultation with the intersex community when the Bill was in preparation. Apparently, no consideration whatsoever has been given to providing to non-binary transgender people the same degree of recognition that has been afforded to their counterparts in Australia, India, Nepal, Thailand, the United Kingdom and Germany. In view of the lack of consultation to which I refer, it appears that intersex people have been grouped with transgender people in a Bill exclusively drafted to deal with the latter. A kind of one-size-fits-all approach has been adopted and this is made clear by the terminology used in the Bill, which refers to transgender people but not to intersex people. In my view, the Bill does not properly address the needs of intersex people and nor is it designed to do so.

I acknowledge that the Minister for Social Protection amended the Bill in the Seanad. Previously, one of the requirements relating to applying for a gender recognition certificate involved obtaining a professional medical opinion based on a medical evaluation. I accept that the phrase "based on a medical evaluation" has been removed from the legislation but I must question whether this will make a great deal of difference in practice. The intention behind removing the words in question was to inform the members of the medical profession that they need not conduct formal physical or mental examinations. That is the signal being communicated to those to whom I refer but there is nothing in the legislation which provides that they cannot do that if that is their wish. The legislation refers to the need to produce a certificate to the effect that in the professional medical opinion of an applicant’s primary treating medical practitioner, that is the family doctor who knows you and not just any doctor, said applicant has transitioned or is transitioning to his or her preferred gender. The medical practitioner must also state that, in his or her opinion, the applicant fully understands the consequences of his or her decision.

Doctors obviously differ in their opinions. I think I can say, without insulting the members of the medical profession, that the vast majority of family doctors in this country probably have very little knowledge of transgender issues. What is going to be required of an applicant in order for a medical opinion to be provided will vary from doctor to doctor. Some practitioners may take a very conservative approach and others may insist on carrying out an examination.

There is nothing in the legislation to prevent this from happening, despite the deletion of those words during the Seanad debate. Some doctors, thankfully a small minority, were at one time prepared to sign medical certificates for people willy nilly. Patients could tell their doctor they had a bad back and they would get a certificate granting them so many days of leave. If it is envisaged that doctors will behave in that way, why include that medical requirement at all? People's rights will depend on the individual whim of their family doctor. It was previously proposed that gender recognition would be a matter of self-determination by the individual concerned. We have ignored the opportunity to provide for self-determination. We will try again to introduce such a provision on Committee Stage but the Government appears to have set its face against it. We have ignored the opportunity to provide for that, as other countries are doing, and we are insisting on adopting a paternalistic approach. The Bill provides that the medical practitioner must be satisfied the applicant fully understands the consequences of what he or she is doing. In other words, the medical practitioner is supposed to be protecting the applicant against him or herself. Doctors differ on these matters. In the Seanad, the Tánaiste and Minister for Social Protection was clear that there is no requirement for a definitive confirmation of a diagnosis or any kind of medical examination. That is a matter for the individual doctor, however. That is how the legislation is written.

Countries like Argentina and Denmark have allowed for self-determination. Malta, which is hardly an outstanding example of a democratic liberal democracy, is also proceeding in that direction. What has happened in those countries? Has the sky fallen in? Have their national debts doubled suddenly? Have they been reduced to a wasteland? No, what has happened is that vulnerable young people can now benefit from legislation which will in many cases alleviate their suffering during the period between when they realise they are living in the wrong gender and when they can get their gender officially recognised. Even that much maligned organisation, the HSE, which is hardly a bastion of liberalism, recognises that self-determination is the appropriate approach. I cannot for the life of me understand why the Government chose to ignore what other countries have done and what its own chief adviser in these matters, the HSE, recommends. The requirement for a professional medical examination seems to stigmatise people who are gender transitioning because it implies that such people need a third party to tell them who they are. Surely the individuals themselves are best placed to decide that.

The Bill makes provision for individuals aged between 16 years and 18 years. Initially the minimum age at which one could transition was 18 years but that has been reduced in certain restricted circumstances to 16 years. While I welcome any advance in this area, the provisions in the Bill put significant obstacles in the way of 16 to 18 year olds. For example, an individual aged between 16 years and 18 years who wants to transition must provide proof of identity, proof of birth, a statutory declaration, a certificate from his or her own medical practitioner, parental consent and an order from the Circuit Court. In addition to all of the other documentation, the order from the Circuit Court will only be made on foot of a certificate from an endocrinologist or psychiatrist. I have a lot of acquaintances in this country but I do not think I am acquainted with any endocrinologist. I must ask the 16 year old members of my extended family how many endocrinologists they socialise with. I do not have to elaborate on what a visit to a psychiatrist might entail. One goes to a psychiatrist to see if one is right in the head and, therefore, knows fully what one is doing when transitioning. This is insulting, condescending and paternalistic, and it should be withdrawn. If the court has to make the decision at the end of the day, why are these hurdles put in an individual's way? In many cases these hurdles will be unsurmountable for those aged between 16 and 18 years.

Those under the age of 16 years are left in limbo. In many cases, people recognise the fact that they belong to a different gender at a very young age. In these cases, individual's experiences between the point where he or she realises he or she is the wrong gender and turning 16 years, or 18 years as will usually be the case, can be very difficult and potentially leave lasting scars. I will not refer to particular cases but the Minister of State, Deputy Kevin Humphreys, knows what I am speaking about. Why should somebody who has already transitioned have to wait until turning 16 years or, more likely, 18 years before the State recognises his or her true identity? It is paternalistic and condescending. It is not as if every six or seven year old in the country is going to rush to a registrar to get a gender transition certificate. Surely that is a matter their parents will take up, and it is certainly not something that would be done lightly. People will take this step unless they genuinely feel they are in a different gender.

A recent study in the UK revealed that in only 4% of cases individuals did not realise they belonged to a different gender until they turned 18 years. In 76% of cases, they were aware before they left primary school. Countries which have minimum age requirements are already re-examining their laws. There is no minimum age requirement in Argentina but the sky has not fallen in that country. Young intersex or transgender people who come to the realisation at a very young age that they are in the wrong gender are vulnerable and voiceless. If the Government accepts the amendment we will be introducing next Wednesday to allow self-determination at any age, with the consent of the parent if the individual is under the age of 18 years, it would not damage the country or undermine its economy and social structure. It would simply be helping vulnerable young people to have a better life.

The marriage bar has also been brought to the Government's attention. A happily married person who wishes to transition is currently required to divorce. This is bizarre in a country which goes to such great lengths to protect and enhance marriage that it is difficult to get a divorce. I recognise that if the same sex marriage referendum, which we support, is passed, several amendments will need to be made to this Bill. What reassurance can the Minister of State give in this regard?

While we cannot contemplate the outcome of the referendum, can the Minister of State give some reassurance today that the matter will be dealt with immediately? That could be done, for example, by putting a sunset clause in the legislation, providing that forced divorce will no longer be applicable in the event of the referendum being passed or by confirming that the Department of Justice and Equality is already drafting legislation to provide for these things. It would be obscene if the same-sex referendum was passed but transgender people were left indefinitely in limbo. Those of us who have served in government know how legislation is prioritised and the choke points and pressures that exist, particularly in an election year. We are into an election year now and at minimum the transgender community needs reassurance on that.

There are a number of other provisions in the legislation, debate on which would be more suited to Committee Stage. For example, there is a provision that a person should be ordinarily resident in the State in respect of which concerns have been expressed regarding the position of asylum seekers. Section 10 refers to proof of identity, but how will proof of identity be determined? Will it be a matter to be worked out in regulations setting out the detail on how some of these procedures will apply? There is also a reference to people who have already transitioned in another jurisdiction. If they want to transition here, they must satisfy the authorities that the requirements under the law of the country where the transition originally occurred are at least equivalent to our law. We have had that before in relation to extradition where the alleged crime must correspond to some crime here before one can be extradited. That is a rough comparison. It proved a very difficult thing to establish in many cases. There is a whole body of judgments of the High Court and Supreme Court which demonstrate that while it may look so on the surface, this is not a simple matter at all. We will pursue it on Committee Stage to see if what the Government has in mind can be more fully flushed out. Section 11 deals with the exceptional situation where a 16 to 18 year old cannot obtain his or her parents' or guardians' consent. The conditions set out are quite restrictive in this regard, which is, again, something we will have to look at on Committee Stage.

As anyone who comes from the country knows, devolution of property, wills, intestacy, etc., are never simple or straightforward matters. The devolution provisions in the legislation are vague. For example, trustees can sell to a bona fidepurchaser without notice without having to make any inquiries themselves in advance. That is a recipe for much litigation down the road. I am concerned about the provision in section 22 that a disappointed potential beneficiary who stands to lose his or her entitlement because of a gender transition must apply to the High Court. If there is one profession in the country that does not undervalue itself, it is the legal profession. An estate may often consist of only a suburban house, the entire value of which can be swallowed up in High Court proceedings. Normally, the type of court in which one takes a case depends on the valuation of the property. I am at a loss as to why that cannot apply here, but it is something we will tease out on Committee Stage.

I do not want to be churlish. Obviously, we want the legislation to go through. While I do not propose to oppose the Second Reading of the Bill, we want substantial amendments to be made. I regret that we do not have a bit more time to think out the format of the amendments as the Government has not met its commitment to leave a fortnight between Second and Committee Stages. It is not too late. We can still amend the legislation. We have a unique opportunity to enact inclusive, forward-thinking legislation. Why stick ourselves in the middle and follow the example of those who have already had to change their legislation or will shortly do so? It makes no sense. I hope the Minister of State will indicate when he is replying to the debate that the Government is open to substantial amendment of the Bill.

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