David Norris (Independent) | Oireachtas source

I welcome the Bill, late and limited though it is, in particular because it will obviate the necessity for transgender persons to re-open the issue every time they apply for a driving licence or other such official document. I also welcome the fact that the Minister paid tribute in her speech to Seanad Éireann and said this was the appropriate House in which to introduce such legislation, and also the fact that she indicated that she will introduce a small technical amendment herself because that leaves open the possibility of accepting amendments from this House. I think it very important that the Government should listen in the light of the rapidly developing information we have.
I said the Bill was late. There was a judgment in the European court in 2002 – Goodwin v. the United Kingdom - where the court found the rights of transsexuals to security in society must be implemented. In 2003 there was Von Koch v. Germany where the right of an individual to determine their own gender was upheld by the court. There was L v. Lithuania which said states were required to recognise the rights of transsexual people, obliged to recognise them. Ireland has been in breach of the European Convention on Human Rights since 2002. A High Court case taken by Dr. Lydia Foy found in her favour. We are, as I say, late in coming to the issue.
There are three areas and all my colleagues have indicated them: one is the divorce requirement. It seems to me to be absolutely asinine to require people to be divorced. It flies in the face of various decisions such as the European Parliament’s paper. The European Parliament found that it was in breach of articles 7 and 9 of the Charter of Fundamental Rights. The Austrian constitutional court has granted a transsexual woman the right to continue with her marriage. The German constitutional court made a similar ruling. The Irish Human Rights and Equality Authority said the single status was unnecessary. It is the gender of each party at the date of marriage that counts in determining the validity of the marriage. There is that. Portugal, Belgium, Georgia, the Netherlands, Romania and Spain all recognise existing partnerships. I was struck by the fact that we hear so much about the family and the constitutional protection of the family - one based on marriage - when the State is insisting on people who are happily married being divorced. The State requires divorce. That surely is an attack on one of the major provisions of the Constitution and opens up the question of whether the Bill is entirely legitimate in terms of its constitutionality.
Then there is the question of the time involved. If one is forced to get a divorce, one must comply with the requirement to have been separated for four years, which means there is a delay of four years, and another requirement to say there are irreconcilable differences. How is that possible when the people are still in love with each other? It is absolutely mad that they must go to court and say they cannot stand each other and they have irreconcilable differences knowing it is perfectly untrue. That is utterly daft and I hope an amendment to delete those sections will be entertained.
There is also the question of pathologisation, the medicalisation of the situation, which suggests that it is an illness or some kind of defect. The chair of Transgender Equality Network Ireland, TENI, Sara Phillips, said that it is diagnosis by any other name. The individuals who must sign off on the legislation are the very same individuals who provide a diagnosis or medical treatment. That is restrictive and unnecessary. Trans persons are best placed to understand and identify their own gender as they live it every day.
We heard evidence this morning at the briefing that was organised. Sam’s mother said they had been trying to get medical help. They got one certificate but after four years they failed to get the second. People are unwilling to give such certificates.
In Malta, the Minister for Social Dialogue, Consumer Affairs and Civil Liberties introduced into parliament a new gender identity Bill. It was set out at section 3(4) that applicants for recognition shall not be required to provide proof of a surgical procedure or total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment. Malta is a little island a fraction the size of Ireland and not the most advanced in terms of human and civil rights.
In 2006 a group was established, including Mary Robinson, a former Member of this House and a former President, and the former chief commissioner of the Northern Ireland Human Rights Commission, Professor Michael O’Leary. The group adopted a set of principles. Principle 3 stated that the country should fully respect and legally recognise each person’s self defined gender identity and ensure that procedures exist whereby all state issued identity papers reflect the person’s self-defined gender identity. Denmark does not require any of this. The words of Dr. Philip Crowley, the national director of quality and patient safety for the HSE have already been placed on the record, clearly endorsing self diagnosis.
The other matter is the exclusion of young people. They really have serious problems which might not immediately occur to people who are not in the situation, for example, the use of toilet facilities in schools; the fact that school authorities might not want to engage with the young person involved; their being prevented from wearing what they consider gender appropriate uniforms; bullying by peers; and exclusion from school activities. FLAC has also spoken on the issue. It stated that the Bill also fails to make provision for young persons under 16 who are particularly vulnerable to bullying and harassment at a very sensitive period in their lives. FLAC suggested the Bill should be amended to require respect and support for young trans persons, especially those still at school.
In addition, there is the question of the amendment to the discrimination legislation. I can speak with some historical perspective, because I introduced the first provisions under the incitement to hatred legislation. I think it was the Video Recordings Bill of many years ago, before the decriminalisation. I managed to persuade the Government at that stage to include sexual orientation and membership of the Traveller community. The grounds have been extended since then and it seems to me to be logical to extend the Equal Status Acts, the equality Act and the Employment Equality Acts, among others, to give the protection of law, quite specifically, to transgender people.
I give a guarded welcome to the Bill. It is an improvement. There is no question or doubt about that. My friends in the transgender community are happy today. They have something to celebrate, but it is not the full deal, and we look forward to that. I am sure the Minister will be able to co-operate with us in amending the legislation to make sure that it approaches nearer to that target.