Joan Burton (Dublin West, Labour) | Oireachtas source

I am delighted to have the opportunity to introduce this very important and ground-breaking legislation. The number of people directly affected by the Gender Recognition Bill will be relatively small. However, the legislation has deep significance for those who will, for the first time, have their preferred gender formally recognised by the State for all purposes. This significance also extends to families, friends and communities of people who are transgender and who will avail of the new birth certificates to be made available.

As Tánaiste and Labour Party leader, I am very proud to be progressing this legislation and progressing the civil rights of transgender people.

I wish to acknowledge and am glad to see that not only is the Seanad the place in which we are introducing this legislation, which is entirely consistent with the long history of the Seanad and the Members who have argued and worked to change attitudes in Ireland and then to reflect the change of attitude in new laws, but also to see many people here who would have been involved in the case brought by Lydia Foy, whose work I have used very much during the preparation of this Bill. I know that people from various organisations like FLAC and parents of transgender people may be in the Visitors Gallery today and I welcome them to the Seanad on behalf of the Senators here.

The introduction of formal recognition of the identity of transgender people is, to my mind, a mark of the growing maturity of Irish society. It is an element of the programme for social reform which has been progressed by the Government and it is the third of three pieces of legislation in the civil registration area that I have brought forward as Minister for Social Protection. The Civil Registration (Amendment) Act 2012 introduced marriages by secular solemnisers and the Civil Registration (Amendment) Act 2014, which has just been enacted, introduced a range of reforms in civil registration.

The House will be aware that the lack of legal recognition for transgender persons is a very long­standing 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 recognise legally the preferred gender of transgender persons. It is appropriate that I pay formal tribute today to Dr. Foy, whose unstinting efforts over very many years have played a crucial part in bringing us to this point.

The programme for Government of the Labour Party and Fine Gael included a commitment that transgender persons would be provided with legal recognition. In July 2011, shortly after I became Minister for Social Protection, I published the report of the Gender Recognition Advisory Group, GRAG. While that report was a significant milestone, things have moved very far forward since then. This is reflected in the Bill before the House today.

Subsequent to the publication of the GRAG report, the Department of Social Protection engaged in a significant additional amount of consultation and research during the preparation of the legislation. 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. I met members of the transgender community on a number of occasions and I was also privileged to meet parents of young transgender people.

In July 2013, I secured Government approval for the publication of the general scheme of the Gender Recognition Bill. Following its publication, the general scheme was referred for pre-legislative scrutiny to the Oireachtas 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. I gave careful consideration to the report and again consulted a range of people and organisations with particular experience and interest in this matter. The report and the contributions made at the committee hearings have made an important and valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation. I would also like to thank Senator Katherine Zappone who has campaigned for this issue to be addressed in legislation and introduced a Private Members' Bill in this regard. I also thank my colleague, Senator Ivana Bacik, who has given me a lot of very wise advice on this legislation.

Following the committee's report, I brought the matter back to 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. Where a person has been issued with a gender recognition certificate by the Department of Social Protection, that person's preferred gender will be formally and legally recognised for all purposes, including dealings with the State, public bodies and civil and commercial society. I am aware that for many transgender people the last remaining personal document that does not show their preferred gender is their birth certificate. This legislation allows them to obtain a birth certificate showing their preferred gender.

Arrangements in respect of gender recognition vary widely across the EU. The provisions in this legislation will be among the most progressive within the EU and beyond. The Bill uses the term "preferred gender" which is in line with a recommendation of the Oireachtas joint committee. This approach also facilitates applications for gender recognition from people with intersex conditions.

As this House will be aware, the Bill requires that an applicant for gender recognition is single, pending the outcome of the referendum on same-sex marriage due to take place in May of this year. I accept this is not ideal but the existing constitutional prohibition on same-sex marriage is a blockage in that respect. If the outcome of that referendum is that same-sex marriages will be constitutionally permissible, then it will be possible to revisit this aspect of the legislation. The Government and I, as leader of the Labour Party and Tánaiste, will be campaigning vigorously for marriage equality and if the people in their wisdom decide to support marriage equality and the referendum is passed, my firm intention would be to return swiftly to this aspect of the legislation.

Once enacted, the main effects of the legislation for those wishing to have their preferred gender recognised will be as follows. An applicant will be legally recognised by the State as being of the preferred gender from the date of the decision to issue the gender recognition certificate. This recognition will be for all purposes, including dealings with the State, public bodies and civil and commercial society. 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. As I have said, if the people give the go-ahead to marriage equality in the proposed referendum, we will legislate for that constitutional change. The person will be able to obtain a new birth certificate that shows the preferred gender and new names, if names are also changed, where his or her birth is registered on the register of births or on the register of adopted children, both maintained by the Registrar General, or on the register of intercountry adoptions maintained by the Adoption Authority of Ireland, or to have their entry on the foreign birth register maintained by the Department of Foreign Affairs and Trade amended accordingly. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.

The Oireachtas joint committee had recommended that the minimum age for gender recognition be reduced from 18 to 16 years. The Bill provides for applications from 16 and 17 year olds, but with significant safeguards attached which seek to balance the rights of such applicants with the need to protect their interests at a vulnerable age.

In such cases, it will be necessary to secure a court order exempting the applicant from the standard requirement of a minimum age for gender recognition of 18 years. For reasons of confidentiality, applications of this type will be made to the Circuit Family Court.

The application process for gender recognition will be administered by the Department of Social Protection. Applicants will either be obliged to have their births registered in Ireland or be ordinarily resident here. The application process will consist of a statutory declaration by the applicant that he or she intends to live permanently in the new gender and a supporting statement by his or her primary treating medical practitioner to the effect that he or she has transitioned or is transitioning to the preferred gender. The process will not require details of care, including medical history or confirmation of a diagnosis, nor will the person have to confirm that he or she has been living in their preferred gender for a specific period prior to his or her application. This is a much more progressive, less onerous and less invasive approach than is the case in many other countries and I hope it will be recognised as such.

I will now summarise the main provisions of the Bill. Sections 1 to 4, inclusive, are standard provisions in respect of the Title of the Bill, 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 that the Minister for Social Protection shall be the decision-making authority in respect of the issue of a gender recognition certificates.

Section 8 sets out the conditions a person will be required to meet to be eligible to apply for a gender recognition certificate. The person must meet one of the following qualifying criteria: his or her birth is registered on the register of births or the adopted children register maintained by the Registrar General; he or she has become an Irish citizen by having his or her birth registered in the foreign births register maintained by the Department of Foreign Affairs and Trade; his or her birth is registered on the register of intercountry adoptions maintained by the Adoption Authority of Ireland; or he or she is ordinarily resident in the State. An applicant must also be at least 18 years of age on the date of application, unless he or she meets the requirements of section 11, 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 9. Senators should note that an amendment will be introduced on Committee Stage to delete a superfluous word "not" from section 8(1)(a) at line 19. This line should read "(a) who may or may not be ordinarily resident in the State and-".

Section 9 addresses the evidence relating to the qualification requirements. This includes proof of identity and either a certificate from the relevant register of births or proof of ordinary residence in Ireland. Also required will be a statutory declaration stating that the person is not in a marriage or in 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 said application of his or her own free will. An application must also be accompanied by a statement from the applicant's primary treating medical practitioner - defined in section 2 - which 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 10 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 their preferred gender being recognised in the other jurisdiction are at least equivalent to those set out in the Bill.

Section 11 addresses applications for gender recognition certificates by persons aged between 16 and 17 years. It will be necessary to secure a Circuit Family Court order exempting the applicant from the standard minimum age for gender recognition of 18 years. The court will have to be satisfied that the child's parents or guardian consent to the application or, in the event that such consent is not forthcoming, that it is in the child's best interest that he or she be allowed to proceed with the application. The court must also receive written confirmation from the child's treating medical practitioner that the person has attained a sufficient degree of maturity to make the decision to apply for gender recognition and is aware of and has considered all the consequences of that decision. The physician must also be satisfied that the application was freely made without the undue influence of any other person. This must be accompanied by confirmation from an independent physician - a registered endocrinologist or psychiatrist - that he or she concurs with the views of the treating practitioner.

Section 12 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 the 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 13 provides for the revocation by the Minister of a gender recognition certificate if information or facts come to his or her notice that would have led to a refusal of the application. The person involved will have the right to appeal a decision in this regard under the provisions of section 16. Where a gender recognition certificate is revoked under this section, it will be deemed to have always been void and of no effect.

Section 14 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 that application. In any such case, appropriate documentary evidence, including a statement from the person's treating medical practitioner, accompanied by a further statutory declaration from the person concerned, will be required. 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 in his or her preferred gender prior to the date of revocation will not be affected.

Section 15 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 16 provides for appeals in respect of gender recognition certificates.

Section 17 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, including dealings with the State, public bodies and civil and commercial society. It includes the right to enter a civil partnership and the right to marry. The effect of the legal recognition is not retrospective and shall be only from the date on the gender recognition certificate.

Section 18 provides that a change in a person's recognised gender under the legislation will not affect the responsibilities of that person as the parent of a child born prior to the issue of a gender recognition certificate.

Section 19 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 Act comes into force. Section 20 relieves a trustee or personal representative from 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 21 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.

Section 22 provides that where criminal liability would arise, but for the fact that a person, either the victim or perpetrator, has been issued with a gender recognition certificate, such liability will exist notwithstanding the gender change.

Section 23 amends section 2 of the Civil Registration Act 2004, which contains definitions, to take account of the provisions of the Gender Recognition Act 2015. Section 24 provides for the establishment and maintenance by the Registrar General of the register of gender recognition. Section 25 adds the register of gender recognition to the list of registers maintained by the Registrar General.

Section 26 inserts a new Part 3A into the Civil Registration Act 2004. The new provisions of Part 3A are as follows. Section 30A provides a definition 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 and 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, surviving next of kin. Section 30D provides that the Registrar General shall also maintain a confidential index which will link the entry in the gender recognition register with the corresponding original entry in the register of births or 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. Section 30E also provides that where changes are made to an entry in the register of births or adopted children register for which there is a corresponding entry in the register of gender recognition, then the latter will also be changed accordingly.

Section 27 of the Bill provides that the register of gender recognition is not subject to 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 28 amends section 63 of the Civil Registration Act to allow for the amendment of errors in the register of gender recognition. Section 29 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 30 provides for amendments to the Irish Nationality and Citizenship Act 1956 which will allow for the establishment of a register of gender recognition of foreign births by the Department of Foreign Affairs and Trade. The Minister for Foreign Affairs and Trade may introduce regulations to provide for arrangements for this new register which mirror those which will apply in the case of the register of gender recognition maintained by the Registrar General.

Section 31 provides a definition of terms used in the Adoption Act 2010 relating to gender recognition. Section 32 provides for amendments to the Adoption Act 2010 on the maintenance and operation of a register of gender recognition of intercountry adoptions by the Adoption Authority of Ireland. Sections 33 and 34 further amend the Adoption Act 2010.

Section 35 makes it an offence under the Act to knowingly provide false information in an application for a gender recognition certificate. Section 36 provides that cases relating to applications from a 16 or 17 year old for a gender recognition certificate under section 11, or appeals against decisions by the Minister under section 16, may be heard by a judge of the Circuit Court in which the applicant concerned ordinarily resides.

Section 37 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 issue of passports to transgender persons who are unable to apply for a gender recognition certificate on the grounds that they are not single.

As I have 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 have contributed to the process. I thank all of the people who at different times, whether at Labour Party conferences or other conferences and events, have allowed me to become aware of their personal stories and the various journeys they have taken with regard to this issue. I feel strongly that the Bill represents a very progressive approach towards meeting the obligations of the State to the needs of our transgender citizens and transgender people who live here. The Bill has, at its core, a genuine commitment on the part of the Government to enable transgender people to be recognised for all purposes in their preferred gender. I acknowledge this recognition will have a momentous effect on many people's lives 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 have stated, compare very favourably with the equivalent legislation in many other countries in Europe. The legislation requires the Minister to produce a report on its implementation on an annual basis to the Oireachtas. It is clearly important that the impact and effectiveness of this ground-breaking legislation is carefully assessed over time. The Oireachtas, particularly the Seanad, will learn from the experiences people will have from now on. This is a progressive Bill which I have championed and 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 recognised as soon as possible. I look forward to an informed debate and to hearing the views of Senators on the measures contained in the Bill. As I stated at the outset, I really am pleased that the Bill is commencing its passage through the Oireachtas in the Seanad because of its history on this and many other issues in contributing to personal freedom and personal progress with regard to the rights and civil liberties of citizens and other people living in Ireland.