Gerard Craughwell (Independent) | Oireachtas source

I would like to cover some matters not included in this Bill. We have the perfect opportunity now to address not just the issue of gender identity recognition but other areas where discrimination against transgender persons occurs. Articles 2 and 5 of the European Convention on Human Rights guarantee the right to life and security of every person. In spite of this, many transgender people live in fear and face violence in the course of their lives. This violence ranges from harassment, bullying, verbal abuse, physical violence and sexual assault to hate crimes resulting in murder.

Transphobia, understood as the irrational fear of, and or hostility towards, people who are transgender, or who otherwise transgress traditional gender norms, can be considered as one of the main causes of violence and intolerance that many transgender persons face. Aggression against transgender people cannot, however, be excused as resulting from ignorance or lack of education and is a serious hate crime. In Ireland we could be forgiven for believing the raft of equality legislation which has been introduced over the years provides protection from discrimination to trans people but in reality it does not. Studies have shown that transgender men and women have a high risk of becoming victims of a hate crime or a hate-motivated incident.

An authoritative Organization for Security and Cooperation in Europe, OSCE, report states that homophobic hate crimes and incidents often show a high degree of cruelty and brutality. They often involve severe beatings, torture, mutilation, castration, even sexual assault. They are also very likely to result in death. Transgender people seem to be even more vulnerable within this category. Despite these findings, gender identity as a possible ground for hate crimes is not explicitly recognised in the legislation of most Council of Europe member states. One of the very few exceptions is the recently adopted Scottish hate crime Bill which explicitly mentions transphobic hate crime. It is also not clear whether states include "gender identity" under the category of "gender" or "sex" in their hate crime legislation.

As a result, transphobia is usually not considered an aggravating factor for hate crimes committed against transgender persons, as shown by the sentences for perpetrators of hate motivated killings in, for example, Portugal and Turkey. Therefore, one can only conclude that transgender people are excluded from specific legal protection, despite their high risk of falling victim to hate crimes. The OSCE has pointed out that explicitly condemning bias motives sends a message to offenders that a just and humane society will not tolerate such behaviour. By recognising the harm done to victims, states convey to individual victims and to their communities the understanding that the criminal justice system serves to protect them.

Moreover, most states do not record or monitor hate crimes or hate motivated incidents of a transphobic nature. These crimes normally go unreported by the police. This was also noted by the OSCE report which observed that transphobic hate-motivated incidents are among the most under-reported and under-documented. One of the few exceptions is the UK, which has a policy of documenting the number of hate crimes committed against transgender people. In practice, transgender people are often afforded little protection by law enforcement officials in the event of a transphobic hate crime or incident. In many cases transgender people who turn to law enforcement agencies for protection are often ridiculed, harassed or just ignored, despite the positive obligation of states under the European Convention on Human Rights to investigate these crimes and bring the perpetrators to justice.

I ask the Minister of State to give serious consideration to providing enhanced protection not just to those seeking gender recognition certificates but to all trans persons. In light of this I am suggesting several amendments to existing legislation. I could read out the legislation but will spare the Minister of State this evening. My first suggestion, however, is an amendment to the Prohibition of Incitement to Hatred Act 1989. Explicitly stating that "gender identity”, "gender expression", "intersex" and "any gender that is not standard male or female gender identity" will enhance protection for trans persons, intersex persons and those with a non-binary gender identity. I will send the wording of the amendment to the Minister of State.

The second amendment I am proposing is to the Employment Equality Act 1998. The purpose of the amendment is to make it explicitly clear that all transgender persons are protected under the 1998 Act. Currently, equality legislation provides quite robust protection to transgender people who have undergone, are undergoing or planning to undergo gender reassignment. This protection is offered under the gender ground in the Employment Equality Act 1998 and the Equal Status Act 2000 as interpreted in the light of European Union law. The effect of this protection is illustrated by the Hannon and O'Byrne decisions, where the Equality Tribunal found that in failing to accommodate the transition of two transgender women, an employer and a bank respectively had infringed gender equality rules. There are, however, three key difficulties with the current legislative protection for trans persons. First, it is unclear whether transgender people who have not transitioned and do not plan to transition are protected by the law. It is possible that the European Court of Justice would take an expansive approach and say that they are, but at the moment, protection is confined to those who have transitioned, are planning to transition or are undergoing transition. There is, at least, some ambiguity.

Second, it is not clear whether transition requires a physical reassignment, surgery or hormonal treatment, or whether a social transition living in the preferred gender without undergoing surgery is sufficient. The better view may be that physical treatment is not required under EU law, but the issue is legally unclear and would benefit from clarification.

Finally, the issue of gender identity is not explicitly named in the 1998 and 2000 Acts. Naming it explicitly means that there will hopefully be greater consciousness of the need to protect transgender people in employment and in the provision of goods and services. It will also mean that for the first time in Irish legislation gender identity and gender expression will be explicitly named and defined. Hence I am recommending that my amendments Nos. 37 to 39 be also included in this Bill. I have typed up the amendments and with the Minister of State’s permission will e-mail them to him and ask him to take them on board.