Written answers

Tuesday, 18 November 2008

Department of Social and Family Affairs

Human Rights Issues

9:00 pm

Photo of Mary WhiteMary White (Carlow-Kilkenny, Green Party)
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Question 405: To ask the Minister for Social and Family Affairs if the State recognises the self chosen gender of transgendered people; if not, her plans to change this situation; and if she will make a statement on the matter. [40624/08]

Photo of Mary HanafinMary Hanafin (Dún Laoghaire, Fianna Fail)
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This issue was the subject of a High Court judgement concerning the rights of a person, who has undergone gender reassignment surgery, to recognition of her acquired gender. On foot of a High Court judgement, delivered on 19 October 2007, the judge made a declaration, pursuant to Section 5 of the European Convention on Human Rights Act 2003, that Sections 25, 63 and 64 of the Civil Registration Act 2004 are incompatible with the obligations of the State under the European Convention on Human Rights. The reason for the declaration was the failure of the State to respect the private life of the Applicant, as required by Article 8 of the Convention, in that there are no provisions which would enable the acquired gender identity of the Applicant to be legally recognised in this jurisdiction.

This is the first time that the High Court has made a declaration of incompatibility with the European Convention on Human Rights in respect of a provision of Irish law. As such, the High Court judgement is very significant and raises complex and far-reaching issues, not merely for this case but for future cases under the European Convention on Human Rights Act. The judgment has implications for a wide range of legislative and policy areas including taxation, social welfare, pensions, family law, criminal law, equality, employment, sport, financial services, health, education and so on. In that context, it is essential to obtain the confirmation of the Supreme Court that the judgement was warranted and to seek clarity on all its implications.

As the judgment is the subject of an appeal to the Supreme Court, it is not considered appropriate for me to comment further at this time.

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