Ivana Bacik (Independent) | Oireachtas source

I welcome the Minister of State, Deputy Kevin Humphreys, and welcome that the Tánaiste and Minister for Social Protection, Deputy Burton, was here to introduce the Bill. I also welcome all in the Gallery and thank them for all their work on this issue over many years.

The Tánaiste has already spoken about the progressive nature of the Bill. I very much welcome it, as, indeed, I think we all do. I also welcome that it is being introduced in the Seanad, which is in keeping with the Seanad's proud history of working on progressive social issues and social change of this nature.

We all recognise how overdue the Bill is. I pay tribute, as others have done, to Dr. Lydia Foy on her tremendous work, the work of her legal team, FLAC, Mr. Michael Farrell and others, and the work of groups such as TENI, LGBT Noise, Amnesty International and the Equality Authority, who have made submissions and have done a lot of preparatory work and consultation on this issue. I also acknowledge Senator Zappone's work on this and thank her for the briefing she hosted this morning which was useful for all of us involved in the Bill and in the work behind it.

In many respects, as the Tánaiste stated, the Bill is more progressive than was originally envisaged. It is also progressive relative to many other European jurisdictions. However, of course, we are the last to enact legislation providing for legal recognition, and that has to be acknowledged too. It is, as I stated, long overdue. It is true to say that, because of this delay, transgender and intersex persons have been left without formal legal status and this has had a significant impact upon their lives in society over many decades. We need to recognise that our failure to legislate to date has had that practical and unfortunate effect on individuals, their families and communities. Therefore, the Bill is most welcome.

It is welcome that we have seen progress, for example, in terms of age. Notwithstanding that, the three issues that have been identified represent areas where we can seek to improve or to change. Those are issues which have been addressed by others and I want to go into those in a little detail.

I acknowledge also the work of the Oireachtas Committee on Education and Social Protection. Its report of January 2014 significantly changed for the better many aspects of the Bill that we see before us. This is a complex and evolving area and the law, in particular in Denmark and, with the current change, in Malta, has changed since the Oireachtas committee reported. Clearly, this is an area where there will be more progressive change to be made.

On age, the first of three issues that have been identified, I welcome that the Bill provides for a procedure for those aged 16 and 17 years to apply for an exemption to the normal rule that 18 is the minimum age for application for a gender recognition certificate. That is in keeping with the Oireachtas committee. It is also in keeping with the law to which Senator Naughton referred, the Non-Fatal Offences against the Person Act 1997, which allows those aged 16 to consent to medical treatment. I welcome that section 11 of the Bill allows for dispensing with the need for parental consent where that is not forthcoming. It is progressive in many ways. The question as to whether there should be some acknowledgement of the role of persons under 16 is a difficult one. The Oireachtas committee did not recommend that. In other aspects of the law we have ensured that we protect children generally and we make distinctions between adults and children for many reasons. However, I would support the recommendation of the Oireachtas committee that there should be some measures put in place to address concerns of transgender persons under the age of 16, and particularly to look at guidelines supporting inclusion of transgender young people in schools because there are real concerns around bullying and discrimination in school. On the age perspective, we need to look at that.

On the issue of marriage, the so-called forced divorce clause, the provisions in sections 8 and 9 that require persons applying for gender recognition certificates to be single are hugely problematic. Many have pointed out it has significant negative repercussions for individuals. Clearly, we all acknowledge that if the marriage equality referendum in May, on which I certainly will be working hard, is passed, that will enable resolution of this issue. There has been a suggestion that a sunset clause might be incorporated in the Bill. That is somewhat problematic - I have spoken to Dr. Fergus Ryan and others about this - because it appears to anticipate a result in a referendum and all of us would be anxious not to undermine the referendum campaign in any way. I would suggest that a simpler and easier measure would be to ensure that the implementing legislation that is being drafted, I understand, in the Department of Justice and Equality preparatory to the referendum being put to the people should include the necessary amendment to be made to this Bill should the referendum be passed. That is a more appropriate place for that. It would address the real concerns that TENI and others have expressed directly to me and others that even if the marriage equality referendum is passed, as I very much hope it will be, this issue will be neglected subsequently, as it was in Sweden, and there will be a delay in addressing the forced divorce clause. Therefore, there may be a way around that at which we can look.

The third issue that has been raised most vocally by TENI and by others is this issue of the medicalisation or pathologisation and whether, instead of requiring any intervention from a doctor, we should be looking to the self-declaration model that has been adopted in Denmark since the Oireachtas committee reported. That would be a much more progressive model. Many of us would like to see us move to simple self-declaration. As I understand it, the original view was that there should be self-declaration combined with a supporting letter of validation from a registered medical practitioner, and that might have been liveable with. The difficulty for many of us with the more restrictive measure as it appears in the Bill is that the definition of the primary treating medical practitioner, rather than being the person's GP, is an endocrinologist or psychiatrist. That seems to impose some serious issues regarding access for people, and the TENI material makes clear the difficulty with access to those specific specialists within the medical profession. That is something we might be able to look at on Committee Stage.

The other concern within that issue of pathologisation is the inclusion of the phrase "medical evaluation" in section 9. I am not sure why that is included. It seemed the professional medical opinion of the medical practitioner might be sufficient. I am not sure what "evaluation" adds to that. We may be able to tease that out on Committee Stage. It is not defined in section 2.

LGBT Noise asked me also to put on the record a number of other concerns around, in particular, whether the Bill adequately addresses the uncertain position of intersex persons. I am glad that the Tánaiste stated in her speech that the Bill would cover intersex persons, but I raise it to be clear. They also raised the exclusion of non-binary persons and whether we can adapt the Bill to accommodate non-binary persons.

As I understand it, that is something that has perhaps not been done in other European jurisdictions but certainly has been done in Australia and New Zealand.

As with the Thomas Hammarberg quote, in an ideal world we should see gender identity as being based purely on an individual's opinion and experience. Issues arise in terms of whether the State should be in the position of recording people's gender identity and if a birth certificate should do that. It is a bigger existential question whether gender identity should be purely a matter for self identification. As a lifelong feminist I would say that, unfortunately, in our world gender does matter. Women are discriminated against in a whole range of different ways in Ireland and in much more extreme ways in other jurisdictions. Many of us struggle with the fact that gender does matter in so many ways, and for that reason the State does have an interest in recording gender. I suppose that is at the root of the more philosophical issues behind the Bill.

The complex series of amendments listed by the Tánaiste to the Civil Registration Act 2004, the Adoption Act 2010 and to criminal justice legislation among others, show us in how many ways recognition and registration of gender does matter. For those very reasons I should say how important the Bill will be in a practical way. Section 17 sets out in such an important and powerful way the effect of the gender recognition certificate to enable for the first time transgender and intersex persons in Ireland to be recognised in the courts with their preferred gender. That is hugely welcome.