Katherine Zappone (Independent) | Oireachtas source

I move amendment No. 1:

In page 5, between lines 16 and 17, to insert the following:“(3) The Minister shall, not later than 2 years after the date on which the Act is enacted, and again not later than 5 years after that date, carry out a review of the operation of this Act assessing, in particular, its consistency with international best practice in the field of gender recognition and its compliance with national, regional and international equality and human rights standards, and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.”.

I welcome the Minister of State, Deputy Kevin Humphreys, and his officials, all of whom are great advocates. The Bill is approaching the end of its time in the Seanad. As the Minister of State has said, both informally and in this House, the Seanad has been a good place to debate the Bill and it has received a good hearing in this Chamber. I am so pleased with the comments made by my colleagues in support of things that he has advocated. We have all been changed because of what he and his colleagues have said. Their articulate voices certainly converted me from the very beginning.

Amendment No. 1 relates to a review of the legislation. I intend to discuss it in the context of amendment No. 7, which is a Government proposal. There are a couple of major differences between these two amendments. There is a difference in respect of the length of the proposed review periods but I do not believe this to be the most substantial difference. Amendment No. 1 states, "The Minister shall, not later than 2 years after the date on which the Act is enacted, and again not later than 5 years after that date, carry out a review of the operation of this Act", whereas amendment No. 7 states:

The Minister shall—(a) not later than 2 years after this section comes into operation, commence a review of the operation of this Act, and

(b) not later than 12 months after its commencement, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.”.

There is a difference in timing but my difficulties do not relate to that. There are two other substantive differences between amendments Nos. 1 and 7. Amendment No. 1 recommends that when the review is carried out, the legislation should be assessed, in particular, with regard to "its consistency with international best practice" - the Government amendment makes no mention of the latter - and in the context of "its compliance with national, regional and international equality and human rights standards". I would appreciate it if the Minister of State would indicate why what is contained in our amendment is not included in the Government's amendment.

The first matter we must consider in the context of these two amendments is why it is so important to include in the Bill a provision relating to consistency and compliance with international best practice. We know that when the legislation leaves the House, there will probably be a couple of things about which we care deeply that will not have been changed but that should have been changed. The Government has stated that, please God, when the legislation is reviewed two years from now, those things can be changed. The Bill is not perfect and it does not even reflect best practice in many people's eyes. In light of that fact, why is it so important that the review should be compliant or consistent with international best practice? The answer is that in 2009, Thomas Hammarberg, the then Council of Europe Commissioner for Human Rights, stressed that formal gender recognition should not depend on the assessment of mental health or medical professionals. Instead, transgender people should be treated as ‘‘subjects who are responsible for their own health needs." Effectively, that was a declaration of international best practice by the Council of Europe. It is that kind of international best practice which ought to be reflected in the review of the legislation. This is critical, particularly in view of the fact that we may not get everything we want in the context of the right of transgender people to determine who they are.

The second major difference relates to compliance with national, regional and international human rights standards.In this regard, it is important to indicate that a view was expressed very recently by a great expert on international human rights standards, Professor O'Flaherty, who wrote in The Irish Timesreferring to the Yogyakarta Principles, as many of us have done here, and indicating in his view, as somebody who was there, who wrote the report and consulted with many other eminent human rights lawyers, the importance of self-determination regarding gender recognition and, therefore, not needing any kind of medical assessment or opinion in that regard. That was written just a couple of weeks ago and it is in reference to international standards that are there for us that we would like to see be part of the review, and ought to be part of the review, as distinct from what the Government has put forward, namely, that after two years there will be a review, without necessarily any kind of benchmarks or standards.

I ask the Minister of State to tell us why these two substantive issues that are in our amendment are not included in his amendment, although I am not necessarily quibbling with the time issue, given that he knows we still have concerns about medical personnel being involved. We have concerns about the fact that if medical personnel are to be involved, the general practitioners are not engaged. We have concerns about the forced divorce requirement and about the age requirement. What will the Government's benchmarks or guiding principles be when they review this Act in that regard?

It could be a great day if the Minister of State and the Government expressed their solidarity with other European countries such as Malta, Germany and Denmark and international colleagues such as Argentina and could promise, in law, to review Irish law in regard to these. That is the purpose of part of our amendment. It could be a great day if the Minister of State were willing to say, in law, that he would see if Irish law complies with international human rights standards. Would it not be great to see that in our law? That would be progressive.

I wonder what our Government, and I do not mean the Minister of State personally, fears. I do not think the Minister, Deputy Flanagan, and his colleagues can say in public that human rights is one of our top priorities for foreign affairs if he and other Cabinet colleagues resist or press the pause button on a domestic law, declaring that they will review this Act according to human rights standards. That is not coherent Government policy. Our amendment gives the Minister of State an opportunity to go some way towards correcting this lack of coherence.