Aengus Ó Snodaigh (Dublin South Central, Sinn Fein) | Oireachtas source

When we adjourned the debate, I was making the point that the issues arising for inter-sex people were not adequately addressed in the Bill as it stood. I hope we will be able to introduce amendments on Committee Stage to improve the legislation in this regard. Discussions about psychiatrists aside, it is clear that some inter-sex people believe the designation of "male" or "female" on their birth certificates does not accurately reflect the facts of their lives and they would, therefore, prefer to use a non-binary system in registering gender. No adequate reason has been presented for the absence of a non-binary identity system. The only explanation that comes to mind is that the Tánaiste and Minister for Social Protection, Deputy Joan Burton, was unable to come up with a suitable formula and, therefore, decided to set the issue to one side. I would prefer to deal with the issue now because we have had sufficient time to come up with mechanisms to address it based on international examples. When this issue was raised in the Seanad, the Minister argued that recognition of non-binary, inter-sex and transgender identities was not within the scope of the Bill and that it would require additional changes. When an issue is brought to Ministers' attention in one House, it is to allow them to use the space between the time a Bill is taken in the Seanad and the Dáil to come up with amended legislation. The issue comes within the scope of the Bill because the Department of Social Protection is also responsible for civil registration. Sometimes extending the scope of a Bill is merely a matter of changing the Long Title. Any issue relating to gender recognition falls within the intention and scope of the Bill and should be captured, if possible.

What consultation, if any, was entered into by the Minister; the Minister of State, Deputy Kevin Humphreys, or their officials with the inter-sex community? It is not a very big community, but in Britain there is a larger one which is represented by a range of groups. These groups would have been able to give advice on the challenges faced in Britain, North America and elsewhere. International groups include Intersex UK, the Intersex Society of North America and Intersex Awareness New Zealand. These groups should have been asked about the issues they faced because the small size of this state and island means that not every issue encountered in larger populations necessarily arises in Ireland. That is not to say, however, they will not arise in the future. Part of our job as legislators is to capture future issues to legislate for them in advance. If we do not address these issues in the Bill, we will have missed an opportunity to be a leader in protecting human rights in this area.

A person who seeks a legal document to assert his or her identity should not be required to go to a medical practitioner to justify his or her life and health. Gender recognition models across the European Union are moving away from medical practitioners and a requirement for certification. The pathology model is being rejected by an increasing number of EU countries. Last September Denmark introduced new gender recognition laws which were welcomed by Amnesty International as progressive and courageous. They do not require medical evidence to be provided as part of the gender recognition process. It is simply a matter of completing an administrative process.

Deputy Willie O'Dea referred to the gender recognition legislation introduced in Malta, which provides that applicants are not required to offer proof of surgical procedures or medical issues as part of the gender recognition process. I introduced the Gender Recognition Bill 2013 based on the Argentine model, which incorporates the Yogyakarta principles adopted in 2006 by a group of human rights experts, including Mrs. Mary Robinson and the former chief commissioner of the Human Rights Commission in the North, Professor Michael O'Flaherty. They are internationally recognised human rights standards and guidelines that should be applied to any law on gender identity.

They stipulate clearly that the State should fully respect and legally recognise each person's self-defined gender identity. Once one involves medical practitioners, it is defined by somebody else. The former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, had much to say on this issue. He said an individual's opinion must be prioritised. It is wrong that we are disregarding these human rights experts on this matter in the legislation. Last August the Equality Authority recommended that applicants should not be required to produce medical evidence to access legal recognition of their gender. Even the HSE which is hardly a bastion of progressive views and, in many ways, one of the most conservative State institutions has stated it endorses gender recognition proposals that would place the responsibility for self-declaration on the applicant rather than place the requirement on the medical profession. Many of its doctors will have to provide the gender certifications. There is a weight of expert opinion that suggests the Minister of State is wrong in his approach, even though he has moved somewhat on the issue.

There is a broader point to be made, although I acknowledge that perhaps it cannot be dealt with in the legislation. I refer to barriers to accessing medical care for trans people. It is something that will have to be dealt with. There is simply not the required level of services for trans people in the State or on the island as a whole. Many have been forced to make long journeys not only within the State but also sometimes outside it. It is not within the capacity of the Minister of State, Deputy Kevin Humphreys, to eradicate these problems. While we may never fully eradicate them as this is a small island, that is not to say we should not provide for an all-Ireland approach similar to the one we have adopted to children and their health. There was a recent announcement of an all-Ireland approach to children with heart trouble, which shows what can be done. If there is expertise to be found in the North or the South, it should be shared across the island. If we have to bring experts from abroad on occasion, it should be on the basis that they are available to all citizens on the island. A further point that needs to be made is that the Equality Authority has indicated that it has seen no other scenario where a person must provide evidence from a medical practitioner in order to access a legal right. It is bizarre and adds weight to what I have been arguing. Where a person is of the correct age and the relevant statutory officer is satisfied he or she has the capacity to make a decision, it is usually a relatively simple matter to access a right such as the right to get married or sign a contract. In these cases a person's standing is accepted, whereas gender recognition procedures seem to be different.

I take serious issue with the fact that there is no pathway to legal gender recognition for children under 16 years. Young people use their birth certificates regularly, including when enrolling in school, and there are times when they should be able to receive proper legal recognition. Leaving them outside the process means that they are risk of having their trans status outed. We have seen what has occurred in terms of bullying in schools for various reasons. Many transgender people have suffered isolation and bullying and many have died of suicide as a result. Many have had traumatic childhoods and adulthoods owing to society's approach to the issue. According to the advice from the Ombudsman for Children on this issue, a failure to provide in law for young transgender people to have their preferred gender recognised renders it more difficult to advance awareness of the serious challenges facing them in schools and other settings.

Even where a 16 or 17 year old wishes to receive legal recognition of a preferred gender, the barriers are still very dangerous and will force many to wait until they are 18. Generally, parental consent is required, which leaves 16 and 17 year olds in the bizarre situation where they can consent to medical treatment but cannot have their gender recognised. There is a contradiction and I seek clarity from the Minister of State as to what happens when two legal parents or guardians of a 16 year old seeking gender recognition disagree on the issue of consent. What happens in that case? The Equality Authority also asked that question when the heads of the Bill were published, but it states no satisfactory answer has been given. Whether it is today when wrapping up the debate or on Committee Stage next week, it is a matter on which an answer is required.

As the Minister insists on not allowing 16 year olds to decide for themselves, the provisions dealing with consent and the narrow grounds on which the courts may dispense with parental consent must also be addressed. Once one starts to stray into this area, there are complications and exceptions. Part of our job is to ensure we look at potential exceptions and the difficulties they will pose and change the law to ensure they are addressed. In the Seanad my party colleagues tabled a motion seeking to allow the courts to dispense with parental consent where it is refused. We are open to correction on this matter, but it seems that the threshold for dispensing with parental consent is such that it would require a child to be at risk, for his or her welfare to be in danger or the parents to be uncontactable. As far as I can see, it does not account for the scenario where there is no risk to the child but that the parent or guardian simply will not consent to a child entering the gender recognition process.

I have other issues with the Bill, to which I have not managed to get. I will wrap up by saying that, in general, I welcome it. It is a huge step forward and igood that it is happening. I hope that in the coming weeks we will use the time positively to ensure we will have the best possible outcome in terms of legislation for the future. In particular, I thank Lydia Foy for her courage and all those who have struggled with the approach of the State to date to transgender issues. I hope this is a new dawn for them.

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