David Norris (Independent) | Oireachtas source

I strongly support the amendment, because it is important that we monitor the operation of the legislation.

This is very new and it would not have been contemplated 15 to 20 years ago, despite the heroic efforts of Dr. Lydia Foy and others. It is a new and fast-developing area and different European countries are developing at different levels and speeds. It is very important that we keep an eye on the way we are developing with regard to other countries.

I wish to put on the record of the House the way this is happening and I refer to a series of judgments. In the case of Goodwin v.United Kingdom 2002 - only 13 years ago - the unanimous judgment of the court was that in the 21st century, the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society, cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. That is unambiguous. The court found that the United Kingdom was in breach of its obligations under Article 8 of the European Convention on Human Rights because of its failure to legally recognise Christine Goodwin, a transgender woman, in her preferred female gender.

I refer to the case of Van Kück v.Germany in 2003, in which the court found in favour of the applicant stating that the case concerned her freedom to define herself as a female person. It described this as one of the most basic essentials of self-determination. That shows an extraordinary development since the war as this would have been absolutely unthinkable. I refer to the case of L v. Lithuania, in which the court found that states are required by their positive obligation under Article 8, to implement the recognition of the gender changes in post-operative transsexuals through, inter alia, amendments to their civil status data with its ensuing consequences. I refer to case of Schlumpf v.Switzerland 2009, which found on the right to personal self-fulfilment.

I also refer to the Lydia Foy case in this country where the High Court gave its judgment. Mr. Justice McKechnie said, "I must conclude that by reason of the absence of any provision which would enable the acquired identity of Dr. Foy to be legally recognised in this jurisdiction, the respondent State is in breach of its positive obligations under Article 8 of the convention." He made a declaration that the Irish Civil Registration Act was incompatible with the ECHR, the European Convention on Human Rights, because of its failure to provide for recognition of transgender persons in their preferred gender.

The EU gender recast directive of 2006 stated that the Court of Justice has held that the scope of the principle of equal treatment for men and women also applies to discrimination arising from the gender reassignment of a person. In its concluding observations, the United Nations Human Rights Committee in 2008 recommended that the state party should also recognise the right of transgender persons to a change of gender by permitting the issuance of new birth certificates. The Council of Europe Commissioner for Human Rights, Nils Muiznieks, in his letter to the Minister for Social Protection in November 2012, said that divorce should not be a necessary condition for gender recognition.

We are moving very rapidly. I will not refer to any further cases because I think I have put sufficient information on the record of the House to show that this is an area which has seen astonishingly rapid growth. Like homosexuality, this subject was regarded as unmentionable and people were afraid of it. I may have said before that I remember as a child being on the Limerick bus and seeing a woman, as I thought, with very hairy legs and heavy tweeds, being taken off by the police because she wore a skirt. That was the attitude in those days and when I was a young person, a young adult. These were people to be taken away and concealed and hidden and treated as mentally deficient, psychologically ill and all the rest. Now we have this tremendous body of legislation showing that these are human beings, citizens and people who are not mentally ill, who have a right and an increasing volume of human rights. This Bill is an improvement and the amendments put down by myself and colleagues will show that there is still a way to go in this legislation.

I will conclude on this note. We are in a situation which is changing rapidly, where new understandings are coming into play and, in particular, where people have the opportunity to meet with transsexual people. There is nothing like putting a human face on something and hearing the human experience. In light of this rapidly developing situation I believe the amendment is appropriate, and the amounts of time provided for are very reasonable. The amendment states, "... not later than 2 years after the date on which the Act is enacted ...". That gives time to assess. It further states, "... not later than 5 years after that date, carry out a review of the operation ...". Those are eminently sensible suggestions, and I cannot see any good reason the Government should object.