Michael McDowell (Independent) | Oireachtas source

When people criticise Seanad Éireann, they should reflect on the fact this House is a revising Chamber. It is a Chamber where we are tolerant and not abusive towards each other, not hostile to each other and where reflective debate and serious consideration of legislation takes place. It has on this occasion had very significant effects.

The second thing I wanted to say is the fact this Bill is being guillotined this evening means there will not be a Report Stage because the way things are panning out now, it means that the Members of this House had to table amendments without seeing the Government’s amendments, with a common deadline for both. Some of the amendments, therefore, may seem redundant in the light of what the Government is proposing to now. On that procedure itself, we normally allow amendments to amendments and we allow on Report Stage reaction arising out of the debate which occurred on Committee Stage. All that has been swept aside by the Minister’s action in seeking to have this debate abridged and to have Third, Fourth and Fifth Stages disposed of by 8:30 p.m.That is the effect of the guillotine. Every Member of this House who wanted to put in amendments had to do so on the blind, not knowing precisely what the Government was suggesting. They find themselves in a situation where they are not even in a position to amend the Government's amendments or to reflect on what the Government is saying and be able to make proposals for consequential amendments to the Bill. All of that is swept aside. The Minister is obviously very anxious to get this done before the general election. I accept that. The Minister has also come in here and said that violence against people by virtue of their protected characteristics is terrible and the consequences for individuals who fear it or who suffer it and for their families is life-changing for the psychology and well-being of many people. I accept all of that, so I am not saying there is nothing urgent about the issue of hatred in Ireland.

The public order legislation currently in place is not sufficient in some respects. For example, people can upload onto the Internet material which is grossly inflammatory. Under the present public order legislation, this does not constitute an offence because a kind of pre-Internet conceptual framework exists at the moment. There will have to be amendment to ensure that people do not use the Internet to achieve what they could not do if they took a loudhailer outside this building and spewed out incitement and violence-inducing rhetoric. If it wrong to do it on a street, it must be wrong to do it from the privacy of a keyboard. What I find fascinating about Internet hatred is that it is done by cowards who hide behind anonymity to spew out their falsehoods and threats.

What we are now left with is legislation which effectively is increasing the penalties for existing offences, which are punishable by law. We do not have a proper explanatory memorandum of the Minister's amendments and we do not have a comprehensive speech explaining the entirety of the amendments and the individual consequences. As far as I have been able to detect, what is happening here is that for many offences, an extra two years is being added to indictable offences. This means increasing penalties from five years to seven years, and from ten years to 12 years and the like. That is what the Bill is now doing, in cases where the motivation for the offence is found to be hatred of persons by reason of their protected characteristics. We could have achieved this much more easily if we had just said that in sentencing, if it appears to a court that hatred is established, the court should have regard to that.

From my own experience, we now have a criminal justice system that is under serious stress. Increasing maximum sentences at this stage is probably not going to bring about increased sentences for people who engage in hate crime because the Judiciary is bending over backwards to keep the prison system from clogging up completely with people serving sentences. In yesterday's newspapers, one could see the extent to which the criminal justice system is creaking at the moment simply by virtue of overcrowding of our prisons and longer prison sentences being imposed. I do not really think that thugs who use violence against other people are going to be affected by the knowledge that, if convicted, they would serve a maximum of two years more than the current sentence. Everybody is against hatred and everybody wants to be seen to be against it, but in large measure let us be truthful with ourselves. Increasing the maximum sentences for a series of offences is unlikely to have any significant deterrent effect. People who are going to beat someone up because they are black or gay or whatever are not going to think that they should be more careful because the five-year sentence for landing a person with a black eye - actual bodily harm - is now increasing to seven years. I do not think it will have significant behavioural effects. However, that is what we are doing now and I accept that the Minister's proposed set of amendments is intended to achieve that.

In that context, I notice a number of criminal enactments which are set out in the sections that are to remain in the Bill. The Non-Fatal Offences Against the Person Act 1997, which is the major non-homicidal violence statute, is now to be amended by the insertion of definitions referring to what will be the remains of this Bill. I note that "hatred" will have the meaning given in the 2023 Act and "protected characteristics" will have the meaning it has in section 2 of this Act. This is a point I want to address seriously. We are saying that "protected characteristics" has a meaning in all of those statutes for the purpose of determining what hatred is, by reference to the definitions set out in section 3, as they are proposed to be. I am very clear that violence and the threat of it, harassment and the destruction of property belonging to any person, by reason of their sex or sexual orientation, or the way in which they express themselves sexually, or portray themselves to society, is fundamentally wrong. I have no difficulty with that proposition. In that context, I have no difficulty with the notion of protecting people who are transgender. However, in the context of legislating for what "gender" is and what "transgender" is, I want clarity. This Bill does not offer a clear definition of "gender" and it does not offer a clear definition of what is meant by the term "transgender". I think I know what is involved. I think we are talking about people who psychologically prefer to be seen as neither male nor female but as having a different identity - if I may use that kind of phraseology about it - or people who are genuinely suffering from the medical condition of dysphoria, or people who live the life of a gender which they did not have at birth, or people who alternate between different views of themselves and follow different behaviour patterns.That is what I presume is meant by transgender, and I have no problem with protecting them from hatred. I note that Senator Mullen's amendment would do the same. He extends protection to them in his amendment. The point I am making, however, is that the definition of "gender" that has been offered, which I oppose, is "the gender of a person or the gender which a person expresses as the person's preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female". The Minister has been at pains to say this definition applies only in this Bill, but it does not because we are already extending it by the criminal justice amendments in the other sections. We are extending that definition to the broad range of criminal justice statutes which are affected by it. Therefore, it is not just for this Bill; we are, in a number of statutes, stating that there are genders other than those of male and female and which do not amount to transgender. That is what we are saying now with this definition. I want to know - and I have never had an explanation from anybody - what thing other than transgender is a gender other than those of male and female. What are we actually saying? What are we actually legislating for? Why are we amending the Non-Fatal Offences Against the Person Act by changing the protected characteristics, etc., in that legislation in this way?

I do not accept the proposition, in all good faith. I have personal experience of people with dysphoria and people who have gone through gender-transforming surgery - decent, kind people - and I have the utmost sympathy for them in the sense that they feel vulnerable and the utmost sense of supporting them if that is the way they choose to live their lives. I have no problem whatsoever with and am deeply empathic towards them and supportive of them, and I think they should be protected. Let us not in any sense distort what we think other people are saying by seeking to amend this definition.

It is notable that the former Leader of this House, when she was Leader, went to the Scottish Parliament on 22 June 2022 to give evidence before one of its committees on this very issue of gender. She is now an MEP, and I do not want to attack her behind her back in any possible way. She chose to give those in attendance the background to the Irish gender recognition legislation and the plans of the Government, of which she was a significant member as Leader of this House at the time, in respect of gender and developing Irish law on gender in order that the Scottish Parliament could consider what we were doing here and what she was proposing we could do here. She shared her wisdom with them on this subject. She said, and this is in column 8 of the report of the debate:

Generations ago, there were two genders and two sexes. There still are two sexes, but today we probably have around nine genders, and that does not diminish any other gender in the gender identity set. That is a conversation that we need to have with people, particularly with women. That does not make them more or less at risk, but saying that a trans female cannot access the same spaces as other women certainly does not protect them. If we believe that men were going to go to the extent of dressing up as women and changing their gender to get access to and be violent towards women, we have a far greater problem than the male violence that we have in our cultures and jurisdictions.

That passage stands out as a statement by a serving member of the Government apparatus who was appointed by the then Taoiseach to be the leader of the Government parties in this House as to what she considered to be involved with the term "gender". She said solemnly - this was not an after-dinner speech but evidence to a Scottish committee - that there were nine genders and probably more. I can take the proposition, as I said earlier, that we should protect people by reference to two genders or transgender people who do not identify, whether permanently or impermanently, with either gender, male or female. I can fully see that there is a case for protecting them from hate, but we are being asked to say there are genders other than male and female and transgender. We are being asked to put a proposition that there are genders of that kind, a multiplicity of genders, into criminal statutes, not simply in this Bill for its purpose but into our general criminal laws. The Department of Justice has not explained - and cannot, apparently, explain - what is meant by the definition it is offering. The best it can do is to say that it wants this legislation to be open to development in this area.

I should also tell the House that Ms Doherty spoke at great length about prisoners and their gender and said:

We had a debate a number of months ago about a number of prisoners in Limerick prison, in the south-west of our country, who are in a female prison and who identified as female after they had been arrested and charged. The law is that they can change their gender if that is what they want to do, but any prison warden or officer who is running an institution or a congregated setting has to mitigate all risks, and if a patron of a prisoner facility is a threat or a risk, mitigating circumstances have to be put in place to protect all the other prisoners ...

That happened in Ireland. I will not mention the name of the individual involved - or there were two, I think - but it also happened in Scotland. When it happened in Scotland, it spelled disaster for the Scottish National Party, and the gender legislation then provoked a crisis between Edinburgh and Westminster as regards the approval, the giving of royal assent, to that legislation.

There is another layer to this whole debate. I do not want to distract us too much, but there is a movement in Ireland, and groups like TENI are part of it, which seeks to educate children that there are a multiplicity of genders.That is a fact. I am not inventing that.