Wednesday, 21 January 2015
Gender Recognition Bill 2014: Second Stage
I am delighted to have the opportunity to introduce this very important and ground-breaking legislation. The number of people directly affected by the Gender Recognition Bill will be relatively small. However, the legislation has deep significance for those who will, for the first time, have their preferred gender formally recognised by the State for all purposes. This significance also extends to families, friends and communities of people who are transgender and who will avail of the new birth certificates to be made available.
As Tánaiste and Labour Party leader, I am very proud to be progressing this legislation and progressing the civil rights of transgender people.
I wish to acknowledge and am glad to see that not only is the Seanad the place in which we are introducing this legislation, which is entirely consistent with the long history of the Seanad and the Members who have argued and worked to change attitudes in Ireland and then to reflect the change of attitude in new laws, but also to see many people here who would have been involved in the case brought by Lydia Foy, whose work I have used very much during the preparation of this Bill. I know that people from various organisations like FLAC and parents of transgender people may be in the Visitors Gallery today and I welcome them to the Seanad on behalf of the Senators here.
The introduction of formal recognition of the identity of transgender people is, to my mind, a mark of the growing maturity of Irish society. It is an element of the programme for social reform which has been progressed by the Government and it is the third of three pieces of legislation in the civil registration area that I have brought forward as Minister for Social Protection. The Civil Registration (Amendment) Act 2012 introduced marriages by secular solemnisers and the Civil Registration (Amendment) Act 2014, which has just been enacted, introduced a range of reforms in civil registration.
The House will be aware that the lack of legal recognition for transgender persons is a very longstanding issue. The High Court declared in 2008, in respect of the case brought by Dr. Lydia Foy, that the State was in breach of its obligations under the European Convention on Human Rights because it did not have a process to recognise legally the preferred gender of transgender persons. It is appropriate that I pay formal tribute today to Dr. Foy, whose unstinting efforts over very many years have played a crucial part in bringing us to this point.
The programme for Government of the Labour Party and Fine Gael included a commitment that transgender persons would be provided with legal recognition. In July 2011, shortly after I became Minister for Social Protection, I published the report of the Gender Recognition Advisory Group, GRAG. While that report was a significant milestone, things have moved very far forward since then. This is reflected in the Bill before the House today.
Subsequent to the publication of the GRAG report, the Department of Social Protection engaged in a significant additional amount of consultation and research during the preparation of the legislation. The views of a range of organisations and individuals who have experience and expertise in this evolving and complex area, including transgender persons and their representative organisations, were sought and considered. I met members of the transgender community on a number of occasions and I was also privileged to meet parents of young transgender people.
In July 2013, I secured Government approval for the publication of the general scheme of the Gender Recognition Bill. Following its publication, the general scheme was referred for pre-legislative scrutiny to the Oireachtas Joint Committee on Education and Social Protection. Officials from my Department, representative groups and legal and medical experts participated in hearings held by the committee in October 2013. The committee's report was published in January 2014. I gave careful consideration to the report and again consulted a range of people and organisations with particular experience and interest in this matter. The report and the contributions made at the committee hearings have made an important and valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation. I would also like to thank Senator Katherine Zappone who has campaigned for this issue to be addressed in legislation and introduced a Private Members' Bill in this regard. I also thank my colleague, Senator Ivana Bacik, who has given me a lot of very wise advice on this legislation.
Following the committee's report, I brought the matter back to Cabinet and the revised general scheme of the Bill was published in June of last year. The fundamental concept underlying this legislation is relatively simple. Where a person has been issued with a gender recognition certificate by the Department of Social Protection, that person's preferred gender will be formally and legally recognised for all purposes, including dealings with the State, public bodies and civil and commercial society. I am aware that for many transgender people the last remaining personal document that does not show their preferred gender is their birth certificate. This legislation allows them to obtain a birth certificate showing their preferred gender.
Arrangements in respect of gender recognition vary widely across the EU. The provisions in this legislation will be among the most progressive within the EU and beyond. The Bill uses the term "preferred gender" which is in line with a recommendation of the Oireachtas joint committee. This approach also facilitates applications for gender recognition from people with intersex conditions.
As this House will be aware, the Bill requires that an applicant for gender recognition is single, pending the outcome of the referendum on same-sex marriage due to take place in May of this year. I accept this is not ideal but the existing constitutional prohibition on same-sex marriage is a blockage in that respect. If the outcome of that referendum is that same-sex marriages will be constitutionally permissible, then it will be possible to revisit this aspect of the legislation. The Government and I, as leader of the Labour Party and Tánaiste, will be campaigning vigorously for marriage equality and if the people in their wisdom decide to support marriage equality and the referendum is passed, my firm intention would be to return swiftly to this aspect of the legislation.
Once enacted, the main effects of the legislation for those wishing to have their preferred gender recognised will be as follows. An applicant will be legally recognised by the State as being of the preferred gender from the date of the decision to issue the gender recognition certificate. This recognition will be for all purposes, including dealings with the State, public bodies and civil and commercial society. The person whose preferred gender is recognised will be entitled to marry a person of the opposite gender or enter a civil partnership with a person of the same gender. As I have said, if the people give the go-ahead to marriage equality in the proposed referendum, we will legislate for that constitutional change. The person will be able to obtain a new birth certificate that shows the preferred gender and new names, if names are also changed, where his or her birth is registered on the register of births or on the register of adopted children, both maintained by the Registrar General, or on the register of intercountry adoptions maintained by the Adoption Authority of Ireland, or to have their entry on the foreign birth register maintained by the Department of Foreign Affairs and Trade amended accordingly. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.
The Oireachtas joint committee had recommended that the minimum age for gender recognition be reduced from 18 to 16 years. The Bill provides for applications from 16 and 17 year olds, but with significant safeguards attached which seek to balance the rights of such applicants with the need to protect their interests at a vulnerable age.
In such cases, it will be necessary to secure a court order exempting the applicant from the standard requirement of a minimum age for gender recognition of 18 years. For reasons of confidentiality, applications of this type will be made to the Circuit Family Court.
The application process for gender recognition will be administered by the Department of Social Protection. Applicants will either be obliged to have their births registered in Ireland or be ordinarily resident here. The application process will consist of a statutory declaration by the applicant that he or she intends to live permanently in the new gender and a supporting statement by his or her primary treating medical practitioner to the effect that he or she has transitioned or is transitioning to the preferred gender. The process will not require details of care, including medical history or confirmation of a diagnosis, nor will the person have to confirm that he or she has been living in their preferred gender for a specific period prior to his or her application. This is a much more progressive, less onerous and less invasive approach than is the case in many other countries and I hope it will be recognised as such.
I will now summarise the main provisions of the Bill. Sections 1 to 4, inclusive, are standard provisions in respect of the Title of the Bill, the commencement process, the definition of terms, the power to make regulations and the costs of administration. Section 5 sets out how documents under the Act are to be issued.
Section 6 provides that records of decisions made by the Minister under the Act will be maintained and that an annual report on the operation of the Act shall be laid before the Oireachtas. Section 7 provides that the Minister for Social Protection shall be the decision-making authority in respect of the issue of a gender recognition certificates.
Section 8 sets out the conditions a person will be required to meet to be eligible to apply for a gender recognition certificate. The person must meet one of the following qualifying criteria: his or her birth is registered on the register of births or the adopted children register maintained by the Registrar General; he or she has become an Irish citizen by having his or her birth registered in the foreign births register maintained by the Department of Foreign Affairs and Trade; his or her birth is registered on the register of intercountry adoptions maintained by the Adoption Authority of Ireland; or he or she is ordinarily resident in the State. An applicant must also be at least 18 years of age on the date of application, unless he or she meets the requirements of section 11, and he or she must not be in an existing marriage or civil partnership. In addition, he or she must meet the evidential requirements set out in section 9. Senators should note that an amendment will be introduced on Committee Stage to delete a superfluous word "not" from section 8(1)(a) at line 19. This line should read "(a) who may or may not be ordinarily resident in the State and-".
Section 9 addresses the evidence relating to the qualification requirements. This includes proof of identity and either a certificate from the relevant register of births or proof of ordinary residence in Ireland. Also required will be a statutory declaration stating that the person is not in a marriage or in a civil partnership, has a settled and solemn intention of living in the preferred gender for the rest of his or her life, understands the consequences of the application and makes said application of his or her own free will. An application must also be accompanied by a statement from the applicant's primary treating medical practitioner - defined in section 2 - which confirms that the applicant has transitioned or is transitioning to his or her preferred gender and that he or she is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in the preferred gender.
Section 10 deals with applications from persons who have already had their preferred gender recognised in another jurisdiction. These applicants will have to show, to the satisfaction of the Minister, that the requirements which led to their preferred gender being recognised in the other jurisdiction are at least equivalent to those set out in the Bill.
Section 11 addresses applications for gender recognition certificates by persons aged between 16 and 17 years. It will be necessary to secure a Circuit Family Court order exempting the applicant from the standard minimum age for gender recognition of 18 years. The court will have to be satisfied that the child's parents or guardian consent to the application or, in the event that such consent is not forthcoming, that it is in the child's best interest that he or she be allowed to proceed with the application. The court must also receive written confirmation from the child's treating medical practitioner that the person has attained a sufficient degree of maturity to make the decision to apply for gender recognition and is aware of and has considered all the consequences of that decision. The physician must also be satisfied that the application was freely made without the undue influence of any other person. This must be accompanied by confirmation from an independent physician - a registered endocrinologist or psychiatrist - that he or she concurs with the views of the treating practitioner.
Section 12 provides that the gender recognition certificate shall contain the person's forename and surname as specified by the applicant in his or her application, his or her date of birth and the preferred gender. The Minister shall notify the Registrar General or the Adoption Authority of Ireland, as appropriate, that the certificate has issued and will provide them with a copy of the gender recognition certificate, a copy of the person's birth certificate and his or her name and contact details.
Section 13 provides for the revocation by the Minister of a gender recognition certificate if information or facts come to his or her notice that would have led to a refusal of the application. The person involved will have the right to appeal a decision in this regard under the provisions of section 16. Where a gender recognition certificate is revoked under this section, it will be deemed to have always been void and of no effect.
Section 14 provides for the revocation by the Minister of a gender recognition certificate in the event that a person applies to revert to his or her original gender and provides satisfactory evidence to support that application. In any such case, appropriate documentary evidence, including a statement from the person's treating medical practitioner, accompanied by a further statutory declaration from the person concerned, will be required. If the application to revoke is declined, the person concerned will be informed of his or her right to appeal. Where a gender recognition certificate is revoked under this section, the rights and liabilities of the person in his or her preferred gender prior to the date of revocation will not be affected.
Section 15 provides for a situation where a person applies to the Minister seeking to have a clerical error or an error of fact in the content of a gender recognition certificate corrected. Section 16 provides for appeals in respect of gender recognition certificates.
Section 17 provides for the fundamental principle that once a gender recognition certificate is issued to a person, his or her gender becomes the preferred gender for all purposes, including dealings with the State, public bodies and civil and commercial society. It includes the right to enter a civil partnership and the right to marry. The effect of the legal recognition is not retrospective and shall be only from the date on the gender recognition certificate.
Section 18 provides that a change in a person's recognised gender under the legislation will not affect the responsibilities of that person as the parent of a child born prior to the issue of a gender recognition certificate.
Section 19 provides that where a person has had his or her preferred gender recognised, it does not affect the distribution of property under a will or other instrument made before the day on which the Act comes into force. Section 20 relieves a trustee or personal representative from any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he or she is responsible for distributing. Section 21 makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the preferred gender.
Section 22 provides that where criminal liability would arise, but for the fact that a person, either the victim or perpetrator, has been issued with a gender recognition certificate, such liability will exist notwithstanding the gender change.
Section 23 amends section 2 of the Civil Registration Act 2004, which contains definitions, to take account of the provisions of the Gender Recognition Act 2015. Section 24 provides for the establishment and maintenance by the Registrar General of the register of gender recognition. Section 25 adds the register of gender recognition to the list of registers maintained by the Registrar General.
Section 26 inserts a new Part 3A into the Civil Registration Act 2004. The new provisions of Part 3A are as follows. Section 30A provides a definition of terms used in the Act. Section 30B provides that a person to whom the Minister has issued a gender recognition certificate and for whom there is an entry in the register of births or the adopted children register may apply to the Registrar General to be entered on the register of gender recognition. The entry will list the person's name and surname and preferred gender as stated on the gender recognition certificate, together with the other particulars contained in the person's original entry in the register of births or the adopted children register, as appropriate. Section 30C provides that the Registrar General will keep an index to the register which will not be open to public inspection or search, save by the person to whom the gender recognition certificate has been issued or, if that person is deceased, surviving next of kin. Section 30D provides that the Registrar General shall also maintain a confidential index which will link the entry in the gender recognition register with the corresponding original entry in the register of births or adopted children register. Section 30E provides that where a gender recognition certificate is revoked the Registrar General will, in turn, cancel the relevant entry in the register of gender recognition. Section 30E also provides that where changes are made to an entry in the register of births or adopted children register for which there is a corresponding entry in the register of gender recognition, then the latter will also be changed accordingly.
Section 27 of the Bill provides that the register of gender recognition is not subject to section 61 of the Civil Registration Act. This effectively excludes all persons other than the holder of the gender recognition certificate from being able to draw a birth certificate from the register of gender recognition. Section 28 amends section 63 of the Civil Registration Act to allow for the amendment of errors in the register of gender recognition. Section 29 amends the first schedule to the Civil Registration Act 2004 to set out what will be entered in respect of an entry in the register of gender recognition.
Section 30 provides for amendments to the Irish Nationality and Citizenship Act 1956 which will allow for the establishment of a register of gender recognition of foreign births by the Department of Foreign Affairs and Trade. The Minister for Foreign Affairs and Trade may introduce regulations to provide for arrangements for this new register which mirror those which will apply in the case of the register of gender recognition maintained by the Registrar General.
Section 31 provides a definition of terms used in the Adoption Act 2010 relating to gender recognition. Section 32 provides for amendments to the Adoption Act 2010 on the maintenance and operation of a register of gender recognition of intercountry adoptions by the Adoption Authority of Ireland. Sections 33 and 34 further amend the Adoption Act 2010.
Section 35 makes it an offence under the Act to knowingly provide false information in an application for a gender recognition certificate. Section 36 provides that cases relating to applications from a 16 or 17 year old for a gender recognition certificate under section 11, or appeals against decisions by the Minister under section 16, may be heard by a judge of the Circuit Court in which the applicant concerned ordinarily resides.
Section 37 provides for an amendment to the Passports Act 2008 which provides that where a person is applying for a passport in his or her preferred gender, the gender recognition certificate will be recognised for this purpose. The Passports Act will continue to provide for the issue of passports to transgender persons who are unable to apply for a gender recognition certificate on the grounds that they are not single.
As I have stated, this legislation is long overdue. Getting to this point has been a difficult and challenging undertaking due to the complex and sensitive issues involved. I again thank all those who have contributed to the process. I thank all of the people who at different times, whether at Labour Party conferences or other conferences and events, have allowed me to become aware of their personal stories and the various journeys they have taken with regard to this issue. I feel strongly that the Bill represents a very progressive approach towards meeting the obligations of the State to the needs of our transgender citizens and transgender people who live here. The Bill has, at its core, a genuine commitment on the part of the Government to enable transgender people to be recognised for all purposes in their preferred gender. I acknowledge this recognition will have a momentous effect on many people's lives and it is absolutely essential that it is facilitated in a serious manner that maintains the integrity of the registration process.
The provisions in the Bill contain some very significant advances on previous proposals and, as I have stated, compare very favourably with the equivalent legislation in many other countries in Europe. The legislation requires the Minister to produce a report on its implementation on an annual basis to the Oireachtas. It is clearly important that the impact and effectiveness of this ground-breaking legislation is carefully assessed over time. The Oireachtas, particularly the Seanad, will learn from the experiences people will have from now on. This is a progressive Bill which I have championed and which has been needed for a long time. Members of the transgender community, naturally, wish to avail of the opportunity to have their preferred gender recognised as soon as possible. I look forward to an informed debate and to hearing the views of Senators on the measures contained in the Bill. As I stated at the outset, I really am pleased that the Bill is commencing its passage through the Oireachtas in the Seanad because of its history on this and many other issues in contributing to personal freedom and personal progress with regard to the rights and civil liberties of citizens and other people living in Ireland.
I welcome the Tánaiste to the House. I also welcome the fact she has brought forward Ireland's first gender recognition legislation. It is an important step. There is no doubt it has been a long time coming. I would like to particularly commend Dr. Lydia Foy, who fought on this issue the whole way through the Irish courts and to Europe to have her rights respected and on behalf of the transgender community as a whole. There is no doubt that without her courage and determination we would not be here. I commend Dr. Foy on this.
I acknowledge the work done by Transgender Equality Network Ireland, TENI, Transparency, LGBT Noise, Gay + Lesbian Equality Network, GLEN, Amnesty and BeLonG To. A wide coalition has been working for a long time to have legislation brought forward in this area. I appreciate it is a significant step forward and I welcome it, but I am concerned it does not go far enough.
While I accept the Tánaiste's point that, compared with legislation elsewhere in Europe, this could be considered progressive, that is because much of that legislation was introduced years ago. Many of the countries that originally legislated in a more conservative fashion are now re-examining their legislation with a view to being more progressive. To that end, they are considering countries like Argentina. Our benchmark starting in this area should not be what the UK did in 2004 or what other countries did even before then, but what is best practice in 2015. We should consider countries like Argentina and forthcoming legislation in Malta and elsewhere so as to ensure that we have the most progressive and supportive legislation possible.
This Bill has been conservatively drafted in a number of respects. It is also overly paternalistic and contrary to current best practice. As such, Senators from various groups will table amendments on Committee Stage. I will take this opportunity to refer to three of the main areas about which we are concerned in the hope that the Government will introduce amendments of its own after listening to the opinions expressed by Senators as well as members of the Oireachtas committee when we discussed the draft scheme of the Bill.
The first area of concern is the requirement for a medical evaluation. It is not clear what the evaluation involves. The Tánaiste has listed a number of elements that, as far as she is concerned, it does not involve, but there is no definition of "medical evaluation". Transgender Equality Network Ireland, TENI, and others have expressed the concern that it could even require a physical exam, as that has not been ruled out. The Bill states that the evaluation would be carried out by a psychiatrist or an endocrinologist, but the very mention of a psychiatrist immediately brings to mind thoughts of mental disorder. It is stigmatising and reminiscent of how homosexuality was treated for a long time, in that it was seen as an illness. That we are medicalising the situation and stigmatising people in this legislation is unfortunate. It is also unnecessary. For example, Argentina and Denmark allow for self-declaration, as will the legislation that is being introduced in Malta. Why can we not just take people's word for it? Of what exactly are we afraid? Do we believe that people will decide to have the State recognise different genders on a whim? I do not accept that will be the case, as it is not a decision that someone makes on a whim. By the time that people reach the point of being able to seek recognition, they have known for a long time that they identify in a different gender. I am unsure as to what we are guarding against. This is why I called the legislation paternalistic. It is as if we must protect people from making bad decisions. There is no evidence internationally that people are making bad decisions. To assume otherwise is judgmental, wrong and unnecessary. Even the HSE representative who addressed the Oireachtas committee on health stated that the HSE would prefer self-declaration over medical involvement.
Second, the age stipulation in the current draft of the Bill is disappointing. It makes no provision for gender recognition certificates for those aged under 16 years. Between 16 and 18 years of age, recognition does not just require the medical evaluation to which I referred, but also parental consent and a court order. This is deeply problematic. From a young age, many transgender people identify in different genders from which their births were registered. They know from the age of three, four, five or six years. From then on, it becomes a struggle. The State does not recognise who they are and they could face difficulties with being accommodated in school in terms of uniforms, toilets and other practical day-to-day matters. That there is a large gap between this and 16 years of age in which they cannot have their preferred genders recognised by the State, even when their parents support them, is wrong. When discussing children, surely the people who are best placed to judge are not just the children - the Constitution now refers to the right of children to be listened to in all matters that affect them - but also their parents. If parents are satisfied that their children should have the opportunity to have their preferred genders recognised before they are 16 years of age, I do not understand why the State would fight it. This is not a requirement in other countries. Argentina has no age limit and countries that have legislated for age limits previously are now re-examining their laws. The Bill is unfortunate in this regard. Against what are we guarding? Even in the worst case scenario, that being, the 1% of people who in adulthood regret making the decision, they can change it. We are discussing a certificate, a piece of paper. Surgery is the only irreversible decision, but that cannot be undertaken until the person is 18 years of age anyway. What are we worried about?
Third, the forced divorce requirement is unfair, unnecessary and arguably unconstitutional. According to the Tánaiste, we must legislate in this way under the Constitution. That is her view. Maybe the Attorney General has also expressed this view. I raised the issue at length before the Oireachtas committee, but the departmental officials could not set out the substance behind that view. Several groups provided legal analysis to the committee that argued otherwise. They stated that one of the strongest parts of the Constitution was the protection of the family based on marriage and that any requirement to break up a family just to have another constitutional right recognised, for example, gender identity, would be unconstitutional. The Council of Europe's Commissioner for Human Rights wrote to the committee and stated that this legislation was against the European convention. It was a strong and persuasive opinion, but it has been ignored.
While I welcome the legislation and accept that it is a major step forward, I hope that the Tánaiste will listen to the voices that, while thanking her for doing this, are urging her to go that bit further, to legislate for what is best practice in 2015 and to give people the support and recognition they deserve.
I also welcome the Minister of State. I am pleased that this proposed legislation is before the House. It is nearly eight years since the High Court first ruled on this issue and I am happy to see the Government moving to rectify a glaring anomaly in the law. As the Minister of State knows, we are the only country in Europe without any legal provision to recognise transgender or intersex people. Therefore, the Bill is to be welcomed.
I wish to bring to the Minister of State's attention a number of concerns that were raised with me during meetings with TENI and LGBT Noise. Since they represent those who are directly affected by this legislation, their concerns should be listened to attentively.
Regarding the Bill's measures on recognition for 16 and 17 year olds, I welcome the Government's provision of a legislative pathway and its decision to remove the so-called sports clause. However, I wish to highlight an issue that might be termed an overly paternalistic approach to adults and younger people. My colleague has referred to it. Regarding younger people, is any other minority, sexual or otherwise, asked to have the consent of medical professionals and parents as well as a court order before the State allows its members to be who they are?
This legislation is based on the medical model of trans and intersex recognition when the move internationally is away from such. If this legislation is passed as is, we will probably have to revisit it. An individual's own opinion of his or her gender and experience must be the paramount consideration, not whether a doctor or parents agree.
We in this country have a long and difficult history of being afraid of any sexual matter. We have repressed it and made it as difficult as possible for people to express their sexuality. No 17 year old transgender individual is going to put himself or herself through the ordeal of having to get the permission of his or her parents and at least one treating physician and then go to court in order to waive the age requirement. It seems to me to be merely putting off the inevitable. In any event, by the time the process has been gone through, the individual would more than likely be 18 years of age anyway.
Let us be clear.
What we are talking about is merely the permission of the State for a person to obtain a revised entry on a birth certificate relating to the gender. It is not about having gender reassignment surgery, where medical considerations clearly apply.
Having met representatives of the Transgender Equality Network Ireland, TENI, and LGBT Noise, I would also like to bring to the Minister's attention an issue expressed to me. They are seriously concerned about the prospect of having to attend their "primary treating medical practitioner", which is defined in the Bill as their endocrinologist or psychiatrist, in order to get a certificate in writing to apply for a change in documentation. As those from TENI expressed to me, their members do not enter into these decisions lightly and I could not possibly imagine they would. It is probably the biggest decision these people will make in their lives. It is my understanding that: "The process would not require details of care, including medical history or confirmation of a diagnosis, nor would the person have to confirm he or she has been living in their preferred gender for a specific period of time prior to their application." If that is the case, what is the purpose of the long and complicated medical process in the Bill?
I note that when appearing before the Oireachtas Joint Committee on Health and Children in July 2013, Dr. Philip Crowley, HSE national director of quality and patient safety, stated that the HSE endorses a gender recognition process which places the responsibility for self-declaration on the applicant rather than on the details of a medical certificate or diagnosis. In doing so, the emphasis is placed on the process of legal recognition of that self-declaration, as opposed to the legal recognition of the medical certificate and diagnosis. The HSE considers this process to be simpler, fairer and pragmatic, and it may be easier to legislate for as it takes account of both transgender and intersex people with differing backgrounds and contexts. Will the Minister comment on the advice of the HSE in this case?
I also highlight an inconsistency created by the provisions relating to people aged 16 or 17. Section 23 of the Non-Fatal Offences Against the Person Act 1997 provides for persons of 16 years and over to consent to any surgical, medical and dental treatment without parental consent. This legislation proposes that such people must have consent of the courts, medical professionals and parents before they can decide their gender and get a new birth certificate. It is essentially saying that someone of 16 or 17 can consent to gender reassignment surgery of their own volition but they cannot get a birth certificate without a plethora of investigations and consents. Will the Minister look again at this issue and see if a more streamlined and less onerous process is possible? One akin to changing one's name might be appropriate, with the relevant six-month cooling off period included. This would make an individual's own life experience and decisions the overriding consideration.
The second issue is obtaining a birth certificate from the Minister in circumstances where the person concerned is already married. The Bill proposes that this is impossible due to constitutional constraints regarding what currently constitutes the constitutional definition of marriage. TENI has issues with this but I would lean on the Minister's side of caution. I propose a sunset clause in the Bill that would provide that this provision would no longer apply should the people adopt civil marriage equality this year. That would be a reasonable compromise in these circumstances.
I commend the Minister on publishing this revised legislation and I will happily vote for it. It is a huge advance for transgender and intersex people. These are our fellow citizens, who deserve all the respect and assistance the State can offer. I hope the Minister will take my observations in the constructive manner in which they are offered and perhaps look again at making this process an easier one for our transgender and intersex citizens.
I welcome the Minister to the House. Along with my colleagues, I welcome the trans people, their families and allies in our Gallery. We have a full house, which is great to see. Broden Giambrone from TENI is there, along with representatives of FLAC, LGBT Noise, TransParenCI and many others to whom many others have paid tribute. I specifically mention Dr. Lydia Foy, who was with us earlier today. Her spirit still fills the Chamber. Throughout the decades she must have often thought this day would never come but it has. We all owe her a major debt in that regard. I acknowledge the leadership of the Tánaiste in getting the Bill delivered to the Oireachtas and the extensive and detailed work of the civil servants in her Department. The Bill would not have happened without her or her willingness to listen, with empathy, to the aspirations, hopes, pains and the struggle of trans people and their families.
This is a very significant Bill but it is regrettable that it has taken successive Irish Governments more than 20 years to legislate for gender recognition and that we are now the last European country to enact legislation to meet our international legal obligations under the European Convention on Human Rights. As there were injustices in the past, this Bill must maximise the potential of the law to protect the dignity and self-determination of transgender people in our society in future. We must ensure that the Bill aspires to the highest human rights standards. Why should we not? The unfortunate distinction of being the last country in Europe to legislate for gender recognition grants us one advantage in that we have a unique opportunity to draw on best practices and experiences around the world, as Senator Power and others have mentioned already, and base our legislation on current international standards. The gender legislation we pass should be based on international best practice, so I welcome the Bill before us. I hope the Minister is open to amending the Bill in order that the Act, when passed, will achieve that aim.
The Minister believes it is vital that we, as lawmakers, listen to the people directly affected by the legislation. Last week I hosted a civic forum on gender recognition in Ireland in Leinster House and I met interested, passionate, engaged citizens, advocates and champions. Many of them are here today and are willing to engage in a productive and constructive manner in this legislative process in order to influence legislation that will affect their lives. We should all do so when our fundamental rights are at stake. I witnessed a powerful civic demonstration of endurance from many of the people who came, especially Dr. Foy. As the Tánaiste and others indicated, Dr. Foy is waiting over 21 years while fighting for her right for recognition.
All of us as lawmakers were keen to see that the human rights of trans people are progressed in a just, fair and equal manner. I will be bringing forward amendments, along with others which have been suggested to me by the real people whose lives and fundamental rights are affected by the proposed legislation. There are a number of serious flaws in the proposed legislation and we should utilise the legislative process to correct the flaws. I will mention some which have already been raised, as they are the primary concerns. We will probably introduce some technical amendments as well on Committee Stage.
The minimum age requirement is an issue close to my heart. Perhaps it is because I have met so many young trans people, some of whom are under 16. While it is welcome that the proposed legislation includes a pathway for legal recognition of those aged 16 and 17 who wish to change gender, I and other Senators fear that the criteria required will be too restrictive and onerous on the young people they are meant to protect. Young people aged 16 and 17 will require parental consent, a letter from a primary treating medical practitioner, another letter from a medical practitioner and a court order to access legal recognition. That is overly protective. The process of gaining so much supporting documentation could take up to two years or longer, as we heard this morning in our briefing, so this process does not really protect some young trans people in that regard.
There is also a blanket exclusion on young trans and intersex people under 16. These are our most vulnerable young people and they will have no voice at all. Lowering the age of recognition would improve the lives of many young trans people who could obtain legal recognition prior to leaving school and change their necessary identification documents. I have heard from several young people and families that legal recognition would not only make their lives easier but it would also validate them for who they truly are. As Sam Blanckensee stated earlier this morning, there is no legal protection for children under 16 in our schools within the Bill. The question is whether this is in the best interests of our children.
The Bill requires an applicant not to be married or in a civil partnership, which means that married trans people must divorce their spouse if they want their gender to be legally recognised. One may be either legally married or have gender legally recognised but not both. The requirement will mean an individual must choose between family and identity. How can we ask families to break up and what about the negative impact on children and spouses? Even if people want a divorce, it is not easy, given our divorce legislation. It was interesting to read an article by Carol Coulter in yesterday's edition of The Irish Timesthat reminded us why we have onerous requirements for this. For example, those seeking a divorce must live separately for four years out of five. This issue is in our Constitution, as distinct from our law. There is also a requirement that the parties must say the breakdown in the relationship is irreconcilable.
The inevitable irony is that trans people who are happily married - some of us have met them - and wish to keep their family intact and protected will not be eligible for a divorce unless they perjure themselves in court. What will these individuals do? As Senator Power argued, it is unconstitutional. The Bill is not protecting their families, as the Senator stated so eloquently and Dr. Fergus Ryan mentioned this morning. The fairest approach would be to delete the requirement entirely. It would be an acknowledgement that these families exist and that the State will protect them. However, if it is not possible, I concur with Senator Naughton on a recommendation, coming from TENI and others, to put in a clause whereby forced divorce will no longer be required should the Irish public adopt civil marriage in 2015.
On the medical criteria to get legal recognition, in the Bill trans people are required to submit a statutory declaration - I hope they will be so proud to do so when this comes through - of a settled and solemn intention of living in their preferred gender identity for the rest of their lives.
I will be done. They are also required to submit a certificate in writing of a medical practitioner confirming transition. The criteria inextricably links medical treatment with a legal right. By defining medical practitioners as a psychiatrist or endocrinologist who must perform a medical evaluation which, as others have stated, is not defined in legislation, it runs the risk of pathologising the community by requiring a de facto diagnosis or worth and, further, as Broden Giambrone stated this morning, it stigmatises them and they need a third party to sign off on their identity. The Private Members' Bill I published, in 2013, with Senators van Turnhout and Mac Conghail, promoted the self-determination of trans people in a simple and legally robust statutory declaration process. That is what they are doing in other countries where best practice is being observed.
In Ireland, we have fallen behind the evolution of modern society in this respect by failing for so many years to legislate for the recognition of those people who do not conform to the traditional binary model of gender and those who regard the biological sex into which they are born as not their known or felt gender. All they wish is to have a law that allows them to exercise the human right to determine their own identity. We have an opportunity now to legislate for that based on international practice and our visitors' fantastic advocacy and example. I hope the Minister takes that opportunity to show the trans community, and the international community that has long called for Ireland to fulfil its obligations under the ECHR, that in Ireland, in 2015, we have a society that accepts, recognises and protects all our citizens.
I welcome the Minister of State, Deputy Kevin Humphreys, and welcome that the Tánaiste and Minister for Social Protection, Deputy Burton, was here to introduce the Bill. I also welcome all in the Gallery and thank them for all their work on this issue over many years.
The Tánaiste has already spoken about the progressive nature of the Bill. I very much welcome it, as, indeed, I think we all do. I also welcome that it is being introduced in the Seanad, which is in keeping with the Seanad's proud history of working on progressive social issues and social change of this nature.
We all recognise how overdue the Bill is. I pay tribute, as others have done, to Dr. Lydia Foy on her tremendous work, the work of her legal team, FLAC, Mr. Michael Farrell and others, and the work of groups such as TENI, LGBT Noise, Amnesty International and the Equality Authority, who have made submissions and have done a lot of preparatory work and consultation on this issue. I also acknowledge Senator Zappone's work on this and thank her for the briefing she hosted this morning which was useful for all of us involved in the Bill and in the work behind it.
In many respects, as the Tánaiste stated, the Bill is more progressive than was originally envisaged. It is also progressive relative to many other European jurisdictions. However, of course, we are the last to enact legislation providing for legal recognition, and that has to be acknowledged too. It is, as I stated, long overdue. It is true to say that, because of this delay, transgender and intersex persons have been left without formal legal status and this has had a significant impact upon their lives in society over many decades. We need to recognise that our failure to legislate to date has had that practical and unfortunate effect on individuals, their families and communities. Therefore, the Bill is most welcome.
It is welcome that we have seen progress, for example, in terms of age. Notwithstanding that, the three issues that have been identified represent areas where we can seek to improve or to change. Those are issues which have been addressed by others and I want to go into those in a little detail.
I acknowledge also the work of the Oireachtas Committee on Education and Social Protection. Its report of January 2014 significantly changed for the better many aspects of the Bill that we see before us. This is a complex and evolving area and the law, in particular in Denmark and, with the current change, in Malta, has changed since the Oireachtas committee reported. Clearly, this is an area where there will be more progressive change to be made.
On age, the first of three issues that have been identified, I welcome that the Bill provides for a procedure for those aged 16 and 17 years to apply for an exemption to the normal rule that 18 is the minimum age for application for a gender recognition certificate. That is in keeping with the Oireachtas committee. It is also in keeping with the law to which Senator Naughton referred, the Non-Fatal Offences against the Person Act 1997, which allows those aged 16 to consent to medical treatment. I welcome that section 11 of the Bill allows for dispensing with the need for parental consent where that is not forthcoming. It is progressive in many ways. The question as to whether there should be some acknowledgement of the role of persons under 16 is a difficult one. The Oireachtas committee did not recommend that. In other aspects of the law we have ensured that we protect children generally and we make distinctions between adults and children for many reasons. However, I would support the recommendation of the Oireachtas committee that there should be some measures put in place to address concerns of transgender persons under the age of 16, and particularly to look at guidelines supporting inclusion of transgender young people in schools because there are real concerns around bullying and discrimination in school. On the age perspective, we need to look at that.
On the issue of marriage, the so-called forced divorce clause, the provisions in sections 8 and 9 that require persons applying for gender recognition certificates to be single are hugely problematic. Many have pointed out it has significant negative repercussions for individuals. Clearly, we all acknowledge that if the marriage equality referendum in May, on which I certainly will be working hard, is passed, that will enable resolution of this issue. There has been a suggestion that a sunset clause might be incorporated in the Bill. That is somewhat problematic - I have spoken to Dr. Fergus Ryan and others about this - because it appears to anticipate a result in a referendum and all of us would be anxious not to undermine the referendum campaign in any way. I would suggest that a simpler and easier measure would be to ensure that the implementing legislation that is being drafted, I understand, in the Department of Justice and Equality preparatory to the referendum being put to the people should include the necessary amendment to be made to this Bill should the referendum be passed. That is a more appropriate place for that. It would address the real concerns that TENI and others have expressed directly to me and others that even if the marriage equality referendum is passed, as I very much hope it will be, this issue will be neglected subsequently, as it was in Sweden, and there will be a delay in addressing the forced divorce clause. Therefore, there may be a way around that at which we can look.
The third issue that has been raised most vocally by TENI and by others is this issue of the medicalisation or pathologisation and whether, instead of requiring any intervention from a doctor, we should be looking to the self-declaration model that has been adopted in Denmark since the Oireachtas committee reported. That would be a much more progressive model. Many of us would like to see us move to simple self-declaration. As I understand it, the original view was that there should be self-declaration combined with a supporting letter of validation from a registered medical practitioner, and that might have been liveable with. The difficulty for many of us with the more restrictive measure as it appears in the Bill is that the definition of the primary treating medical practitioner, rather than being the person's GP, is an endocrinologist or psychiatrist. That seems to impose some serious issues regarding access for people, and the TENI material makes clear the difficulty with access to those specific specialists within the medical profession. That is something we might be able to look at on Committee Stage.
The other concern within that issue of pathologisation is the inclusion of the phrase "medical evaluation" in section 9. I am not sure why that is included. It seemed the professional medical opinion of the medical practitioner might be sufficient. I am not sure what "evaluation" adds to that. We may be able to tease that out on Committee Stage. It is not defined in section 2.
LGBT Noise asked me also to put on the record a number of other concerns around, in particular, whether the Bill adequately addresses the uncertain position of intersex persons. I am glad that the Tánaiste stated in her speech that the Bill would cover intersex persons, but I raise it to be clear. They also raised the exclusion of non-binary persons and whether we can adapt the Bill to accommodate non-binary persons.
As I understand it, that is something that has perhaps not been done in other European jurisdictions but certainly has been done in Australia and New Zealand.
As with the Thomas Hammarberg quote, in an ideal world we should see gender identity as being based purely on an individual's opinion and experience. Issues arise in terms of whether the State should be in the position of recording people's gender identity and if a birth certificate should do that. It is a bigger existential question whether gender identity should be purely a matter for self identification. As a lifelong feminist I would say that, unfortunately, in our world gender does matter. Women are discriminated against in a whole range of different ways in Ireland and in much more extreme ways in other jurisdictions. Many of us struggle with the fact that gender does matter in so many ways, and for that reason the State does have an interest in recording gender. I suppose that is at the root of the more philosophical issues behind the Bill.
The complex series of amendments listed by the Tánaiste to the Civil Registration Act 2004, the Adoption Act 2010 and to criminal justice legislation among others, show us in how many ways recognition and registration of gender does matter. For those very reasons I should say how important the Bill will be in a practical way. Section 17 sets out in such an important and powerful way the effect of the gender recognition certificate to enable for the first time transgender and intersex persons in Ireland to be recognised in the courts with their preferred gender. That is hugely welcome.
I welcome the Bill, late and limited though it is, in particular because it will obviate the necessity for transgender persons to re-open the issue every time they apply for a driving licence or other such official document. I also welcome the fact that the Minister paid tribute in her speech to Seanad Éireann and said this was the appropriate House in which to introduce such legislation, and also the fact that she indicated that she will introduce a small technical amendment herself because that leaves open the possibility of accepting amendments from this House. I think it very important that the Government should listen in the light of the rapidly developing information we have.
I said the Bill was late. There was a judgment in the European court in 2002 – Goodwin v. the United Kingdom - where the court found the rights of transsexuals to security in society must be implemented. In 2003 there was Von Koch v. Germany where the right of an individual to determine their own gender was upheld by the court. There was L v. Lithuania which said states were required to recognise the rights of transsexual people, obliged to recognise them. Ireland has been in breach of the European Convention on Human Rights since 2002. A High Court case taken by Dr. Lydia Foy found in her favour. We are, as I say, late in coming to the issue.
There are three areas and all my colleagues have indicated them: one is the divorce requirement. It seems to me to be absolutely asinine to require people to be divorced. It flies in the face of various decisions such as the European Parliament’s paper. The European Parliament found that it was in breach of articles 7 and 9 of the Charter of Fundamental Rights. The Austrian constitutional court has granted a transsexual woman the right to continue with her marriage. The German constitutional court made a similar ruling. The Irish Human Rights and Equality Authority said the single status was unnecessary. It is the gender of each party at the date of marriage that counts in determining the validity of the marriage. There is that. Portugal, Belgium, Georgia, the Netherlands, Romania and Spain all recognise existing partnerships. I was struck by the fact that we hear so much about the family and the constitutional protection of the family - one based on marriage - when the State is insisting on people who are happily married being divorced. The State requires divorce. That surely is an attack on one of the major provisions of the Constitution and opens up the question of whether the Bill is entirely legitimate in terms of its constitutionality.
Then there is the question of the time involved. If one is forced to get a divorce, one must comply with the requirement to have been separated for four years, which means there is a delay of four years, and another requirement to say there are irreconcilable differences. How is that possible when the people are still in love with each other? It is absolutely mad that they must go to court and say they cannot stand each other and they have irreconcilable differences knowing it is perfectly untrue. That is utterly daft and I hope an amendment to delete those sections will be entertained.
There is also the question of pathologisation, the medicalisation of the situation, which suggests that it is an illness or some kind of defect. The chair of Transgender Equality Network Ireland, TENI, Sara Phillips, said that it is diagnosis by any other name. The individuals who must sign off on the legislation are the very same individuals who provide a diagnosis or medical treatment. That is restrictive and unnecessary. Trans persons are best placed to understand and identify their own gender as they live it every day.
We heard evidence this morning at the briefing that was organised. Sam’s mother said they had been trying to get medical help. They got one certificate but after four years they failed to get the second. People are unwilling to give such certificates.
In Malta, the Minister for Social Dialogue, Consumer Affairs and Civil Liberties introduced into parliament a new gender identity Bill. It was set out at section 3(4) that applicants for recognition shall not be required to provide proof of a surgical procedure or total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment. Malta is a little island a fraction the size of Ireland and not the most advanced in terms of human and civil rights.
In 2006 a group was established, including Mary Robinson, a former Member of this House and a former President, and the former chief commissioner of the Northern Ireland Human Rights Commission, Professor Michael O’Leary. The group adopted a set of principles. Principle 3 stated that the country should fully respect and legally recognise each person’s self defined gender identity and ensure that procedures exist whereby all state issued identity papers reflect the person’s self-defined gender identity. Denmark does not require any of this. The words of Dr. Philip Crowley, the national director of quality and patient safety for the HSE have already been placed on the record, clearly endorsing self diagnosis.
The other matter is the exclusion of young people. They really have serious problems which might not immediately occur to people who are not in the situation, for example, the use of toilet facilities in schools; the fact that school authorities might not want to engage with the young person involved; their being prevented from wearing what they consider gender appropriate uniforms; bullying by peers; and exclusion from school activities. FLAC has also spoken on the issue. It stated that the Bill also fails to make provision for young persons under 16 who are particularly vulnerable to bullying and harassment at a very sensitive period in their lives. FLAC suggested the Bill should be amended to require respect and support for young trans persons, especially those still at school.
In addition, there is the question of the amendment to the discrimination legislation. I can speak with some historical perspective, because I introduced the first provisions under the incitement to hatred legislation. I think it was the Video Recordings Bill of many years ago, before the decriminalisation. I managed to persuade the Government at that stage to include sexual orientation and membership of the Traveller community. The grounds have been extended since then and it seems to me to be logical to extend the Equal Status Acts, the equality Act and the Employment Equality Acts, among others, to give the protection of law, quite specifically, to transgender people.
I give a guarded welcome to the Bill. It is an improvement. There is no question or doubt about that. My friends in the transgender community are happy today. They have something to celebrate, but it is not the full deal, and we look forward to that. I am sure the Minister will be able to co-operate with us in amending the legislation to make sure that it approaches nearer to that target.
Like Senator Bacik, I am very pleased that it was a Labour Party Minister who introduced the legislation. I am also pleased that the legislation is being introduced in the Seanad. I congratulate Senator Zappone on the role she has played in bringing the Bill to fruition, and all the organisations in the Gallery, for whom this has been a very long journey. I wish to begin by quoting the words of Sam whom I know is in the Gallery.
I met Sam Blanckensee at the Tom Johnson summer school a number of months ago. We discussed this issue as it was going to come before the Seanad. This morning I asked him if he would not mind me using his words and reading them into the record because, to my mind, although a number of the issues of concern to all of the organisations in the Gallery have been identified by many of the speakers, they are best described in Sam's words.
I do not think anybody could put it better. It has already been said, but needs to be repeated, that Ireland is the only country in the EU which has no provision for legal gender recognition. It was not in 2008 but in 2002 that the High Court held there was no legal precedent to allow Dr. Lydia Foy to change her sex on her birth certificate, and many speakers have recognised her unique role in the fact this legislation is before us today. In 2014 her action against the State was effectively settled after the High Court was told by the Government it had a firm intention to enact necessary laws as soon as possible in 2015. I am thankful it is in January 2015 and not December 2015 that we are considering this legislation.
Gender Recognition is not an abstract concept; it's not just about a birth certificate. It's about real people and real lives. For me it's not about a piece of paper, it's about Mr. Sam Blanckensee legally existing in the Irish State. I am an active participant in my community; I'm a scouter and a student leader. But in the eyes of my state, the man I have become doesn't exist.
A number of changes have been requested by many organisations and have been referred to by many other speakers. I am going to return to Sam's words and focus on the issue of age:
I realised I was trans when I was 16. At that stage I was in 5th Year in an All-Girls School. I was sure at that time that if I was to come out I would have to leave my school. So instead of telling my peers and teachers I continued going to school using the wrong name and pronouns. That year was the worst of my school life. I felt I couldn't be authentic, I was suicidal and I was self-harming regularly.In a recent report TENI found that 78% of transgender people had seriously considered suicide and 40% of these had attempted suicide. I will now go back to Sam's story.
For the next year and a half, although I began coming out and being more true to myself, I had to wake up in the morning and put on a skirt and listen to people refer to me as a girl. I had to hide who I was every moment of my day in school. This is not an experience that every trans child survives - knowing who you are but not feeling you can do anything about it.These are Sam's comments on the legislation and the changes he wants to see.
Often with the support of their parents [many transgender children] come out to their teachers and principals and hope that these adults in their lives support them as their parents have. Unfortunately, these brave and self-aware young people don't always have their hopes realised. Their teachers are often the biggest block they face to acceptance. They get told to use different bathrooms than the other children of their gender, regardless of their wishes. This can be one of the scariest and hurtful things you can be told to do. They may have to wear the wrong uniform or have the wrong pronouns used by their teachers.
These are children with a very different situation to the one I was in, they're in a situation that could be so easily improved with a little understanding from the staff in their schools. But instead these kids struggle with school, some drop out, others have to transfer.
This legislation does not protect these children. The age limit of 16 means that there is still no legal protection for children in schools, children who want nothing more than to be normal kids and to go to school with their identity respected the way the identities of their peers are.Sam sees having to seek the consent of parents as a particular impediment to the legislation as it is drafted. He also states that two medical opinions will be difficult to find. Endocrinologists and psychiatrists who will give medical evaluations to transgender adults are few and far between. We should take on board the experience of people who must deal with this legislation. Finding two specialists who will give evaluations to transgender children will be nigh on impossible, as doctors feel they need to be experts in their field before dealing with transgender individuals.
Between 16 and 18 the conditions may be slightly better ... I know of a number of young people in Ireland who were disowned by their parents after coming out as trans.
Sam states: "These children need protection; they need protection from the people in their lives who don't want to believe in their identities." Will the Minister of State consider the age provision in the legislation? Many other changes have been proposed, but we should consider the position of children between the ages of 16 and 18 and those aged under 16. Professor Donal O'Shea stated that from a medical point of view the most important age is puberty, and the debate as to whether the minimum age should be 16 or 18 is a facile constitutional argument.
It is my pleasure to state Fianna Fáil supports the principle and concept of introducing a gender recognition Bill. The Bill will allow each person to identify in the gender he or she feels internally, which may not correspond with the sex assigned at birth. In 2008 the High Court ruled the Irish State was in breach of its obligations under the European Convention of Human Rights because it did not have a mechanism to recognise legally the preferred gender of transgender individuals. In response to this, the then Minister for Social Protection established the Gender Recognition Advisory Group in 2010.
We need to discuss a number of issues, the first of which is more obvious and easier to deal with than the others, which should be discussed more in order that people in Ireland come to terms with and understand what is involved. It was the former Taoiseach, Bertie Ahern, who asked me three years ago to get involved and help transgender people. My mind was blown by what I learned from them. Transgender people are required to divorce before their preferred gender will be recognised. A man in a heterosexual couple I met had changed his gender to female and the couple was heartbroken because they wanted to stay together and did not want to have to divorce. They had a 16 year old daughter. I thought it was a no-brainer. Why did they have to divorce? The Bill must seriously address this human rights issue, which affects many people sitting in the Gallery, that transgender people must divorce before having their gender recognised. In effect they must become single.
The provision that a statement must be obtained from a primary treating medical practitioner is misguided and damaging because it relies on an obsolete conception of the nature of transgender identity and serves to pathologise the identity of transgender people. The Department of Social Protection has received letters from transgender health experts worldwide stating unanimously that legal gender recognition is a human right and should have nothing to do with medical care pathways.
Speaking before the Oireachtas Joint Committee on Health and Children in July 2013, Dr. Philip Crowley, the HSE's national director for quality and patient safety stated:
The HSE endorses a gender recognition process which places the responsibility for self-declaration on the applicant rather than on the details of a medical certificate or diagnosis. In doing so the emphasis is placed on the process of legal recognition of that self-declaration as opposed to the legal recognition of the medical certificate and/or diagnosis. The HSE considers this process to be simpler, fairer, pragmatic and may be easier to legislate for as it takes account of both transgender and intersex people with differing backgrounds and contexts.Another issue is the availability of recognition for those under the age of 16 and the disproportionately onerous requirements to be fulfilled by young people aged 16 and 17. Today we heard the story of Sam, thanks to the courtesy of Senator Katherine Zappone. Sam is an outstanding young person, and we also heard his mother's story. It broke my heart to hear it.
Being a teenager is bad enough, but I cannot bear to think how painful it must be to be conscious that one's gender may not be what it was at birth, having to go with the flow and having to hide what one really is. I was perfectly happy until I was 17 years of age, and after that I was very unhappy for a number of years. It is hard enough to come to terms with life and to establish one's own identity without having to deal with this other issue.
I thank Senator Zappone, TENi and Broden Giambrone, who was a magnificent advocate. I have met amazing people who have inspired me and given me heart. The transgender people have had the courage to come out and say to society that they exist and that they want to be fully recognised in Irish society. Fair play to them.
I very much welcome the Bill but note that Ireland has lagged behind. There are issues that concern me. Subject to the time limitations in this Second Stage debate, I will confine my intervention to three main areas of concern to me, arising out of this Bill. I say "of concern to me," but that is not strictly true; my life will not be directly impacted by the legislation we will bring forward as a result of this process. Rather, these are deeply felt concerns of the transgender community itself, which were articulated to me by transgender young people and adults and, more generally, by transgender activists - for example, at the public hearings of the Joint Committee on Education and Social Protection in October 2013. These are the voices to which we need to listen most carefully. Nobody is better placed to know what is best, more appropriate and most just in respect of the lived reality of transgender people's lives than transgender people themselves. In that regard, I welcome our visitors to the Visitors' Gallery. Part of me wishes we were switching who is actually debating this Bill and who is listening to this debate. I am sure some of my colleagues would share that wish.
In researching this area, I was most impressed with the Maltese approach to this issue. It has yet to be finalised but it is taking a very people-centred, lived-lives approach whereby the major focus of consultation is with the transgender community itself in developing the legislation. I was also very interested to learn that in Malta there is no requirement to register a baby's gender at birth, nor is a gender disclosure required in applying to schools.
I want compliment TENi, the Transgender Equality Network Ireland, Amnesty International, FLAC, and, particularly, my colleague Senator Zappone. We have been extremely well briefed on the issues before us. I have listened to the interventions and I really support what all my colleagues have said, so I really hope we can do good work on Committee Stage.
The issues about which I have concerns include the single status requirement as a precondition for gender recognition and its implications for transgender people, happily married or in a civil partnership - my colleagues have explored that issue - and the current medical criteria, which medicalise and pathologise gender identity and act as a barrier to gender recognition through an unnecessarily onerous process and which actually fail to meet the standard as laid out in the Yogyakarta principles that such procedures should be efficient, fair and non-discriminatory and respect the dignity and privacy of the person concerned. I do not understand why we need to put these very unnecessary and onerous hoops in place.
The third area of concern to me - several colleagues from across the House have mentioned this issue, so I hope we can make progress on this issue - relates specifically to young transgender people. On this point, I believe we have serious work to do in upholding and respecting our international human rights obligations to children under the UN Convention on the Rights of the Child. Article 2 relates to non-discrimination, Article 3 relates to the best interests of the child, Article 6 relates to the right to life survival and development of the child, and Article 12 relates to the voice of the child and the protection of privacy. The UN convention speaks to me so much about many of the issues raised with me by those in the transgender community.
In this Bill, no account whatsoever has been given to inter-sex youths. There is no process for them to have their preferred gender identified. Furthermore, there is no legal protection for transgender children under the age of 16. We can think of cases where people are not in agreement, but what about situations where everyone is in agreement and where the six-year-old boy has clearly articulated his gender identity and his parents, friends and family all agree on his gender identity? As is the case at the moment, is this young child really going to be forced to go through a girls' school wearing a girl's uniform in order for him to access education available in his locality? Whose best interest are we serving? Surely, in this Bill, we could do something for that young person. In this Bill, we are saying we will bring in the process at 16 years. I would not advise anybody to go through that medicalised process. I do not understand it and I do not see why we are doing it. If one applies for a college place, one's gender identity is assigned to one. We have to go further.
We have an opportunity here to bring in a law. We are probably talking about a handful of young people, but we can go further, which I will explore more on Committee Stage. As said by my colleague Senator Hayden, and as Sam Blanckensee said earlier, this goes beyond birth certificates. This is about real lives and it has a real impact, and we can do more in this House.
Cuirim fáilte roimh an Aire Stáit. I welcome the Bill, which provides for legal recognition of preferred gender for transgender people. However, while applauding the Government for finally publishing this legislation and bringing it before the House, we should also acknowledge our collective shame that successive governments have failed to act on what is an essential and basic human right – the right to preferred legal gender identity. In failing to act before now, the State has shown a deep disrespect for transgender people and their families and for the European Court of Human Rights. In a country which prides itself on fair and equal treatment for all its citizens, the rights of transgender people have all but been ignored. It is seven years since the High Court ruled that Ireland's failure to recognise transgender people was a breach of the European Convention on Human Rights. It is shocking that it is 21 years since Dr. Lydia Foy, who was with us earlier, first requested a new birth certificate in her female gender. We have heard Taoiseach after Taoiseach apologise for the wrongs of the State against children and for various other things down through the years, but we owe Dr. Foy a huge apology for having to divest herself of her privacy and come into the public domain in order to get what was a basic human right recognised. At some stage, somebody in this House or the Taoiseach should apologise to her and her many colleagues who have fought for so long.
Furthermore, Ireland has the dubious honour of being the only state in the European Union with no provision at all for recognising transgender people and their preferred gender. I am aware that both Sinn Féin and Senator Zappone brought forward gender recognition Bills and have actively campaigned for change but, sadly, the fact that this legislation is now before the Seanad is due more to the persistence and courageous advocacy of Dr. Foy, TENi and the transgender community than it is any policy maker or legislator. Transgender people have sought legal recourse in national and European courts and have put their necks on the line by bravely telling their stories to diverse audiences and service providers in an effort to effect social and legislative change.
What the transgender community is looking for is something that we all take for granted – a certificate which unequivocally states our gender as either male or female. It is a certificate which affords to us, as citizenship, the dignity of legal identity. It is a certificate that is a gateway document to a range of other legal documents, services and protections. There is ample evidence that not having consistent and accurate identity documents exposes transgender people to harassment and discrimination in the employment process, in accessing social services, in educational participation and in many other contexts.