Averil Power (Independent) | Oireachtas source

Like previous speakers, I will start by acknowledging the presence in the Visitors Gallery of people who have worked on this issue for a long time, particularly Dr. Lydia Foy. She fought a personal challenge and put her personal life in the public domain in a difficult way for an extended period of time to bring us to the current position. I join others in paying particular tribute to Lydia for her work and congratulating her on it.

There are representatives of several groups in the Visitors Gallery, ranging from Transgender Equality Network Ireland, TENI, to LGBT Noise and BeLonG To. I see Dr. Fergus Ryan, who is one of the great human rights champions on the legal side. He worked with me on my adoption Bill and on the amendments we brought forward last week to the section 37 Bill in an effort to strengthen it. He has also championed this Bill and sought to strengthen it over the past few years. I also acknowledge Michael Farrell, who worked with Lydia on her case and has been championing this from a legal perspective. There are also GLEN, ICCL, Amnesty International and many other human rights champions who have been pursuing this issue and calling on us to act.

Before getting into my critique of the Bill, to be fair to the Minister of State and the Tánaiste, I should also acknowledge that they are the first Ministers to legislate on this issue in Ireland. That is significant and should be acknowledged. This has been a long time coming. It should not have required Dr. Foy to fight a personal case to make us bring this legislation forward, and it should not have taken us such a long time to deal with it. However, it is happening and it is a positive step forward.

That said, I share the concerns expressed by others that the Bill does not go far enough. I appreciate Senator Mooney's generosity in acknowledging the work I have been doing on this issue and I thank him for helping me to secure the support of a wider group of colleagues on the matter. When I first approached him and we discussed it, he acknowledged that it was not something he had personally been involved with. In fact, until Broden Giambrone sat me down and explained it to me it was not something I had personally been involved with or of which I had any great knowledge.I remember saying to him that first day that we had coffee in LH2000 that I believed in human rights and that everybody is entitled to equality, dignity and respect. I said I did not know enough about transgender people but asked what I needed to do to ensure we could deliver those basic human rights for transgender people of all ages. It was a learning experience for me to work with TENI. Its representatives are particularly good at being patient with someone who did not understand the issue. There was no question too stupid. I have found them extraordinarily supportive over the past few years on this issue, in answering my questions and helping me to draft amendments to improve the legislation.

I welcome that we are bringing forward this Bill, but there are issues on which I brought forward amendments last year. One was to provide for self-declaration. The second was to treat over-16s as adults, to recognise that 16 is generally the age for medical consent and for decision-making. The third was to provide a procedure to allow recognition for those under 16 through a court process. The last was to remove the requirement for divorce. I am glad to see in the amendments the Minister of State is bringing forward that we are moving to self-declaration. That is extremely positive. Many of us on all sides of the House argued for that both in the Seanad and in the Dáil. I welcome the fact that the Government listened to us on that and that it has changed. That is significant. I also welcome the fact that the marriage equality referendum has made the forced divorce requirement redundant. I never accepted that it was necessary and legal opinions were given at the Joint Committee on Education and Social Protection early on, where various groups argued legally that it was not required. At least now, whenever the court case challenging the marriage equality referendum finishes, that requirement will be removed. That is very positive.

On the other two areas, the lack of provision for those aged under 16 and the very restrictive process in place for 16 and 18 year olds, I share the disappointment of Senator van Turnhout and others that the Government did not go further on those issues. In particular, the lack of recognition for under-16s is a huge flaw in the Bill. I agree with the sentiments expressed by my colleagues, that this is a very happy and positive day for transgender adults but an incredibly sad day for transgender children because we are doing nothing at all for those aged under 16.

The horrifying thing is that for many transgender children every day is an incredibly sad day. Every day is a challenge. Once young people realise they are transgender, which, according to TENI, typically happens around the age of three or four, they face many challenges in coming to terms with that themselves, in reaching out to their parents and explaining to them how they feel, in working over time to win over the support of their parents and then in going through the daily struggles of being in a very gendered school system, and so on. For many young people, it is just too tough. We have a horrifying situation in this country as it is in terms of youth mental health. This is an issue I have done a great deal of work on and published an action plan on two years ago. While I was researching that I found it particularly disturbing to see the mental health statistics for the LGBT community in general and particularly for transgender people.

The current Bill does nothing to address that. There is no process for transgender people under 16. I find it deeply upsetting that we are not reaching out and doing something for those young people. I also do not understand the logic behind it. Other countries, such as Argentina, do not have an age limit, so there are systems elsewhere that are genuinely based on the best interests of the child and that have found a way of providing recognition for younger people. When I brought forward an amendment on this issue previously when the Bill was in the House, we suggested that the Government simply extend the procedure it is providing in the Bill at present for 16 to 18 year olds to those aged under 16, so that it is providing a system. It is too restrictive for 16 year olds, who are adults and should be entitled to self-determine, but if we at least had a system where a young person under 16 could go to court with their parent's permission and apply for gender recognition, that would mean we were doing something for young people and recognising that the people who know best about their children are parents. Nobody makes this decision lightly.

The refusal to do anything for young people in terms of statements the Minister of State, the Tánaiste and others have made previously seems to be based, as TENI has pointed out, on a lack of trust in young people. It assumes this is a decision young people or their parents might take too lightly. Words like "safety" and "youth protection" have been used in the debate. As TENI has pointed out, the clear suggestion is that trans youth, even those in their mid-teens who may have lived for several years in their self-identified gender and who may have identified as trans since the age of three or four, must be protected from naive choices they may come to regret later. That is based on a false assumption. It is overly paternalistic, judgmental and has no research base whatsoever. In fact, as has been pointed out, the UK study referred to by Transparency and TENI points out that the percentage of transgender people who came to the realisation of their gender variance at age 18 or later is less than 4%, so most of them knew much earlier, and 16% of participants were aware they were transgender before they left primary school. Young people know who they are from an early age.

We had a referendum on children's rights two years ago and the Irish people went out and voted in favour of provision that recognises that the most important thing in terms of any decision-making regarding children is the best interests of the child. That is now going into our Constitution. This piece of legislation ignores that. The Children's Ombudsman has made that point, as have various other groups. The Ombudsman has argued that the legislation potentially falls foul of the European Convention on Human Rights and the provision there under Article 8 for the protection of family life and of people's private lives. I do not understand the failure to move on this area. I acknowledge that the Government has moved on other areas and has improved the Bill, but this is a monumental gap. It is so sad for young trans children in primary and secondary school. Many of them leave our school system simply because they cannot cope with the daily struggle of not being recognised for who they are at school. That has such an impact on the rest of their lives that they drop out of the school system early. For those young people, the Government is offering nothing. That is incredibly sad.

This is an issue I intend to keep fighting on. The Bill provides for a review in two years time. I hope I will be a Member of the Oireachtas in some form in two years time but, if not, I promise I will continue to work on this issue from outside, because of all the issues I have worked on in the last few years, this is an issue that has touched my heart. I have listened to the personal stories of trans adults and, particularly, trans children, who showed enormous bravery in speaking; the witnesses who came to our committee; and the people who have spoken out in the media and elsewhere, including Dr. Foy, who fought her case on the issue. The bravery shown by the trans community has been phenomenal and it is incumbent on all of us in this House to go as far as we can for them. I am sorry that is not happening today, but I promise this is something I will stick with until we get progressive legislation that delivers for all transgender people of all ages.