Averil Power (Fianna Fail) | Oireachtas source

I welcome the Tánaiste to the House. I also welcome the fact she has brought forward Ireland's first gender recognition legislation. It is an important step. There is no doubt it has been a long time coming. I would like to particularly commend Dr. Lydia Foy, who fought on this issue the whole way through the Irish courts and to Europe to have her rights respected and on behalf of the transgender community as a whole. There is no doubt that without her courage and determination we would not be here. I commend Dr. Foy on this.

I acknowledge the work done by Transgender Equality Network Ireland, TENI, Transparency, LGBT Noise, Gay + Lesbian Equality Network, GLEN, Amnesty and BeLonG To. A wide coalition has been working for a long time to have legislation brought forward in this area. I appreciate it is a significant step forward and I welcome it, but I am concerned it does not go far enough.

While I accept the Tánaiste's point that, compared with legislation elsewhere in Europe, this could be considered progressive, that is because much of that legislation was introduced years ago. Many of the countries that originally legislated in a more conservative fashion are now re-examining their legislation with a view to being more progressive. To that end, they are considering countries like Argentina. Our benchmark starting in this area should not be what the UK did in 2004 or what other countries did even before then, but what is best practice in 2015. We should consider countries like Argentina and forthcoming legislation in Malta and elsewhere so as to ensure that we have the most progressive and supportive legislation possible.

This Bill has been conservatively drafted in a number of respects. It is also overly paternalistic and contrary to current best practice. As such, Senators from various groups will table amendments on Committee Stage. I will take this opportunity to refer to three of the main areas about which we are concerned in the hope that the Government will introduce amendments of its own after listening to the opinions expressed by Senators as well as members of the Oireachtas committee when we discussed the draft scheme of the Bill.

The first area of concern is the requirement for a medical evaluation. It is not clear what the evaluation involves. The Tánaiste has listed a number of elements that, as far as she is concerned, it does not involve, but there is no definition of "medical evaluation". Transgender Equality Network Ireland, TENI, and others have expressed the concern that it could even require a physical exam, as that has not been ruled out. The Bill states that the evaluation would be carried out by a psychiatrist or an endocrinologist, but the very mention of a psychiatrist immediately brings to mind thoughts of mental disorder. It is stigmatising and reminiscent of how homosexuality was treated for a long time, in that it was seen as an illness. That we are medicalising the situation and stigmatising people in this legislation is unfortunate. It is also unnecessary. For example, Argentina and Denmark allow for self-declaration, as will the legislation that is being introduced in Malta. Why can we not just take people's word for it? Of what exactly are we afraid? Do we believe that people will decide to have the State recognise different genders on a whim? I do not accept that will be the case, as it is not a decision that someone makes on a whim. By the time that people reach the point of being able to seek recognition, they have known for a long time that they identify in a different gender. I am unsure as to what we are guarding against. This is why I called the legislation paternalistic. It is as if we must protect people from making bad decisions. There is no evidence internationally that people are making bad decisions. To assume otherwise is judgmental, wrong and unnecessary. Even the HSE representative who addressed the Oireachtas committee on health stated that the HSE would prefer self-declaration over medical involvement.

Second, the age stipulation in the current draft of the Bill is disappointing. It makes no provision for gender recognition certificates for those aged under 16 years. Between 16 and 18 years of age, recognition does not just require the medical evaluation to which I referred, but also parental consent and a court order. This is deeply problematic. From a young age, many transgender people identify in different genders from which their births were registered. They know from the age of three, four, five or six years. From then on, it becomes a struggle. The State does not recognise who they are and they could face difficulties with being accommodated in school in terms of uniforms, toilets and other practical day-to-day matters. That there is a large gap between this and 16 years of age in which they cannot have their preferred genders recognised by the State, even when their parents support them, is wrong. When discussing children, surely the people who are best placed to judge are not just the children - the Constitution now refers to the right of children to be listened to in all matters that affect them - but also their parents. If parents are satisfied that their children should have the opportunity to have their preferred genders recognised before they are 16 years of age, I do not understand why the State would fight it. This is not a requirement in other countries. Argentina has no age limit and countries that have legislated for age limits previously are now re-examining their laws. The Bill is unfortunate in this regard. Against what are we guarding? Even in the worst case scenario, that being, the 1% of people who in adulthood regret making the decision, they can change it. We are discussing a certificate, a piece of paper. Surgery is the only irreversible decision, but that cannot be undertaken until the person is 18 years of age anyway. What are we worried about?

Third, the forced divorce requirement is unfair, unnecessary and arguably unconstitutional. According to the Tánaiste, we must legislate in this way under the Constitution. That is her view. Maybe the Attorney General has also expressed this view. I raised the issue at length before the Oireachtas committee, but the departmental officials could not set out the substance behind that view. Several groups provided legal analysis to the committee that argued otherwise. They stated that one of the strongest parts of the Constitution was the protection of the family based on marriage and that any requirement to break up a family just to have another constitutional right recognised, for example, gender identity, would be unconstitutional. The Council of Europe's Commissioner for Human Rights wrote to the committee and stated that this legislation was against the European convention. It was a strong and persuasive opinion, but it has been ignored.

While I welcome the legislation and accept that it is a major step forward, I hope that the Tánaiste will listen to the voices that, while thanking her for doing this, are urging her to go that bit further, to legislate for what is best practice in 2015 and to give people the support and recognition they deserve.