David Cullinane (Sinn Fein) | Oireachtas source

I welcome the Minister of State to the House and am glad to participate in this debate. Sinn Féin initially welcomed the publication of this Bill because, like many people, we saw it as at least a step forward, but we have clear reservations about elements of the Bill and we do not believe it goes far enough. Sinn Féin published a comprehensive Bill on this issue some time ago, which would have better met the requirements for trans people and would have dealt with many of the difficulties we see in this Bill.

The Bill in its current form is so narrowly drafted and so unnecessarily restrictive that many trans people will not be able to avail of the pathway to recognition that it sets out. The Bill in its current form will breach various provisions of the ECHR. If the Government does not want to see the State back before the European courts defending its policies on gender recognition procedures, it would do well to take on board the criticisms being put forward by trans people, by advocacy organisations, by political parties and by representative groups who are genuinely concerned and who are raising genuine issues, which I hope the Minister of State will take on board.

Sinn Féin will be putting down comprehensive amendments on Committee Stage to improve this Bill. I hope we can have a genuine and constructive debate on how to improve the Bill to meet the concerns of trans people and their representative groups. We will work with Independent Senators and others in doing that.

On the issue of marriage and civil partnership, Sinn Féin is completely against any requirement that a person must be single to have their gender recognised and, further, that they would be required to seek a divorce to have the paperwork to accurately reflect their gender. Persons of diverse gender identities should enjoy legal capacity in all aspects of life. No status such as marriage or parenthood should be invoked by the State to prevent the legal recognition of a person’s gender identity.

We noted the former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, urged countries to remove all restrictions for married applicants in gaining recognition. Divorce in Ireland is subject to more restrictive and demanding conditions than in other jurisdictions. This can only be altered by an amendment to the Constitution. It may not even be possible for happily married applicants to satisfy this requirement to be living apart to access divorce, as the term ‘‘living apart’’ refers to the mental and physical state in which both people are living genuinely separate lives. This means the only way for some happily married applicants to get a divorce would be to commit perjury before a court. It is unconscionable to expect people to do that. We also have further questions regarding the constitutionality of the proposal and feel it may breach Article 41.1° of the Constitution. Other jurisdictions have managed to address this issue. Accordingly, it is not beyond the Oireachtas to do the same.

In the Government’s Bill, a primary treating medical practitioner, defined as a person’s primary treating endocrinologist or psychiatrist, is required to confirm the person has or is transitioning and that there must be a medical evaluation of an applicant. We share Transgender Equality Network Ireland’s view that this is diagnosis by any other name. We do not believe such a restrictive and unnecessary provision has a place in law. Our view is that trans persons are best placed to understand and identify their own gender. This is not to mention the fact that trans health services are nowhere near sufficiently resourced. The Bill places emphasis on a medical opinion despite the fact that the Health Service Executive, HSE, has no clear pathway for trans health care.

We are deeply disappointed this Bill does not contain a pathway to legal recognition for those under 16 years of age. These are among the most vulnerable people in the trans community. The Bill in its current form does not address or deal with the important issues of people with non-binary identities and those who define themselves as intersex. We will be raising all these matters outlined through amendments as the Bill progresses. Due to the importance of this legislation, maybe Sinn Féin, Independent and Fianna Fáil Senators could put down joint amendments rather than having individual ones with varying nuances, in turn allowing for a robust debate with the Minister of State. I hope he will take on board not just the views of Oireachtas Members but of the transgender community and its advocate organisations to have a Bill that will deliver the equality we all want for trans people.