Hildegarde Naughton (Fine Gael) | Oireachtas source

I also welcome the Minister of State. I am pleased that this proposed legislation is before the House. It is nearly eight years since the High Court first ruled on this issue and I am happy to see the Government moving to rectify a glaring anomaly in the law. As the Minister of State knows, we are the only country in Europe without any legal provision to recognise transgender or intersex people. Therefore, the Bill is to be welcomed.

I wish to bring to the Minister of State's attention a number of concerns that were raised with me during meetings with TENI and LGBT Noise. Since they represent those who are directly affected by this legislation, their concerns should be listened to attentively.

Regarding the Bill's measures on recognition for 16 and 17 year olds, I welcome the Government's provision of a legislative pathway and its decision to remove the so-called sports clause. However, I wish to highlight an issue that might be termed an overly paternalistic approach to adults and younger people. My colleague has referred to it. Regarding younger people, is any other minority, sexual or otherwise, asked to have the consent of medical professionals and parents as well as a court order before the State allows its members to be who they are?

This legislation is based on the medical model of trans and intersex recognition when the move internationally is away from such. If this legislation is passed as is, we will probably have to revisit it. An individual's own opinion of his or her gender and experience must be the paramount consideration, not whether a doctor or parents agree.

We in this country have a long and difficult history of being afraid of any sexual matter. We have repressed it and made it as difficult as possible for people to express their sexuality. No 17 year old transgender individual is going to put himself or herself through the ordeal of having to get the permission of his or her parents and at least one treating physician and then go to court in order to waive the age requirement. It seems to me to be merely putting off the inevitable. In any event, by the time the process has been gone through, the individual would more than likely be 18 years of age anyway.

Let us be clear.

What we are talking about is merely the permission of the State for a person to obtain a revised entry on a birth certificate relating to the gender. It is not about having gender reassignment surgery, where medical considerations clearly apply.

Having met representatives of the Transgender Equality Network Ireland, TENI, and LGBT Noise, I would also like to bring to the Minister's attention an issue expressed to me. They are seriously concerned about the prospect of having to attend their "primary treating medical practitioner", which is defined in the Bill as their endocrinologist or psychiatrist, in order to get a certificate in writing to apply for a change in documentation. As those from TENI expressed to me, their members do not enter into these decisions lightly and I could not possibly imagine they would. It is probably the biggest decision these people will make in their lives. It is my understanding that: "The process would not require details of care, including medical history or confirmation of a diagnosis, nor would the person have to confirm he or she has been living in their preferred gender for a specific period of time prior to their application." If that is the case, what is the purpose of the long and complicated medical process in the Bill?

I note that when appearing before the Oireachtas Joint Committee on Health and Children in July 2013, Dr. Philip Crowley, HSE national director of quality and patient safety, stated that the HSE endorses a gender recognition process which places the responsibility for self-declaration on the applicant rather than on the details of a medical certificate or diagnosis. In doing so, the emphasis is placed on the process of legal recognition of that self-declaration, as opposed to the legal recognition of the medical certificate and diagnosis. The HSE considers this process to be simpler, fairer and pragmatic, and it may be easier to legislate for as it takes account of both transgender and intersex people with differing backgrounds and contexts. Will the Minister comment on the advice of the HSE in this case?

I also highlight an inconsistency created by the provisions relating to people aged 16 or 17. Section 23 of the Non-Fatal Offences Against the Person Act 1997 provides for persons of 16 years and over to consent to any surgical, medical and dental treatment without parental consent. This legislation proposes that such people must have consent of the courts, medical professionals and parents before they can decide their gender and get a new birth certificate. It is essentially saying that someone of 16 or 17 can consent to gender reassignment surgery of their own volition but they cannot get a birth certificate without a plethora of investigations and consents. Will the Minister look again at this issue and see if a more streamlined and less onerous process is possible? One akin to changing one's name might be appropriate, with the relevant six-month cooling off period included. This would make an individual's own life experience and decisions the overriding consideration.

The second issue is obtaining a birth certificate from the Minister in circumstances where the person concerned is already married. The Bill proposes that this is impossible due to constitutional constraints regarding what currently constitutes the constitutional definition of marriage. TENI has issues with this but I would lean on the Minister's side of caution. I propose a sunset clause in the Bill that would provide that this provision would no longer apply should the people adopt civil marriage equality this year. That would be a reasonable compromise in these circumstances.

I commend the Minister on publishing this revised legislation and I will happily vote for it. It is a huge advance for transgender and intersex people. These are our fellow citizens, who deserve all the respect and assistance the State can offer. I hope the Minister will take my observations in the constructive manner in which they are offered and perhaps look again at making this process an easier one for our transgender and intersex citizens.