Gerard Craughwell (Independent) | Oireachtas source

For the first time, I understand the difference between a classical graduate from the honourable house of Trinity and a poor economics graduate from the London School of Economics. While I will try to follow that contribution, it will be rather difficult to do.

On behalf of all the groups that have made representations to me on the single requirement of the Bill, including Amnesty International, The Equality Authority of Ireland, LGBT Noise and Transgender Equality Network Ireland, TENI, not to mention the people in the Visitors Gallery who have been adverted to and openly discussed their own situations with me, I ask the Minister of State to bring this issue back to the Attorney General for further examination. The Joint Committee on Education and Social Protection's report on the general scheme of a gender recognition Bill 2013 recommended that the civil status requirement be reconsidered. While the joint committee acknowledged the difference of opinion between the Attorney General and others on the legal issues around gender recognition for persons who were married or in a civil partnership, it thought that not being single should not prevent a person from qualifying for a gender recognition certificate and urged the Minister to revisit the issue. I am asking the Minister of State to revisit it again and revert to the Attorney General. In recent days there has been much discussion about the Attorney General and what she has or does not have to say. It really bothers me that Members are expected to accept the word of the Attorney General as a dogma that must be followed blindly by Governments. The Attorney General is but one barrister. I suggest the Attorney General form a committee in the Law Library to ascertain what the other legal brains have to say. One person's opinion should never be taken as dogma.

As legislators, Members are not alone in requesting reconsideration of this requirement in that there has been considerable interest abroad in the Bill. Senator David Norris referred to the Council of Europe Commissioner for Human Rights who wrote to the Tánaiste to advise that divorce should not be a necessary condition for gender recognition as it could have a disproportionate effect on family life, which has been cherished in Ireland for as long as I can remember. Moreover, I am sure those who are older than me can remember it for even longer. Given the constitutional protection afforded to marriage and the family, it is arguable that this precondition may be unconstitutional owing to its negative effect on the integrity of the constitutional protection of the family. Amnesty International reminds Members that the right to marry and form a family is protected by several instruments to which Ireland is a party, including the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Neither does the single requirement meet the standards laid out in the Yogyakarta Principles which state "No status, such as marriage or parenthood, may be invoked ... to prevent the legal recognition of a person’s gender identity".

It appears that this unnecessary precondition is based, erroneously, on the premise that recognising the preferred gender of a married person would convert the marriage or civil partnership into a same-sex marriage and that it would be same-sex marriage by the back door. However, the Minister of State should note that even countries in which same-sex marriage is not allowed have also rejected this precondition and that courts in Luxembourg, Germany and Austria have all rejected the single requirement. Given that gender recognition is of prospective effect and the marriage was a heterosexual one and that the validity of the marriage is tested against the factors existing at the time, as my colleague, Senator David Norris, has noted, there is no legal basis for the fear that gender identity recognition would suddenly make a same-sex marriage. If the Bill did have a retrospective effect, the parenthood and all other rights attached to the marriage should also change. In short, the Bill contradicts itself.

Legal issues aside, as I have told the Minister of State previously, there is a human factor. A loving couple who wish to stay together have come through what must have been the most horrendous set of difficult and challenging circumstances. I refer to a marriage which is intact, within which the couple have made some very serious changes to their lives and who have decided to stay together. These are not couples who have lived apart for four or five previous years and who have irreconcilable differences. Does one seek to have them lie or pretend they are living apart? Does one seek to have them pretend there are irreconcilable differences? They are a tiny minority of couples who have the right to have recognised both their preferred gender and their marriage. To impose an either-or scenario on couples who have successfully navigated this unenviable terrain is inhumane and degrading.

Let us not forget that the only reason that we have this Bill at all is that Ireland has been in breach of the European Court of Human Rights. This Bill should be actively seeking to redress the balance and to mitigate against further injustices and human rights violations. Transgender persons have already been subjected to inhumane discrimination. Let us not build further discrimination into a Bill which is meant to be progressive.

Again I ask the Minister of State to go back to the Attorney General and ask her to consult with colleagues. Hers is only one opinion.