Irish Gender Recognition Group launch report

On 14 July 2011 the Gender Recognition Advisory Group (GRAG) launched its report on the recommendations and proposed legislation changes for the rights of transgendered persons in the Irish State.

The GRAG was set up by the Minister for Social Protection in May 2010 to carry out research on the issues facing transgendered persons in Ireland, and to propose legislation providing for the formal recognition of transgendered persons by the State. This group was set up following the success of Dr Lydia Foy in her thirteen year battle for recognition by the State as a male to female transgendered person.

The GRAG concluded that an independent panel composed of three persons (a legal expert, a medical expert and a person representing civil society) should decide whether a Gender Recognition Certificate should be issued to the applicant. The decision of the panel would be subject to a Circuit Court appeal.

In carrying out its research, the GRAG consulted with many stakeholders in the area and public consultations were held. The group examined legal frameworks in other countries, as well as analysing European case law.

The GRAG recommended that a number of criteria be introduced for issuing a Gender Recognition Certificate:

• applications be restricted to those ordinarily resident in Ireland, and whose births are registered with either the General Register Office or the Department of Foreign Affairs Foreign Births Register.
• applications be restricted to people over eighteen years of age. In the case of transgendered persons who make an application for a Gender Recognition Certificate at the age of eighteen, the person's time spent living in the preferred gender role must be taken into account by the independent panel, with a maximum of two years in the preferred gender role being taken into account.
• applications be restricted to persons who are not married or not in a Civil Partnership.
• applicants must statutorily declare their intention to live in the preferred gender for the rest of their life, and that they understand the implications of applying for a Gender Recognition Certificate.
• applicants must have lived in the role of their preferred gender for at least two years prior to the application, and must provide evidence of this.
• medical evidence must be submitted - a formal diagnosis of "Gender Identity Disorder", evidence of gender reassignment surgery or recognition of changed gender in another jurisdiction.

Organisations such as the Free Legal Advice Centres (FLAC) and the Irish Council for Civil Liberties have voiced concern with the requirement that the applicant must not be married or in a civil partnership. The GRAG reasoned that allowing married persons or Civil Partners to apply for a Gender Recognition Certificate would be akin to legislating for same-sex marriage, and thus be vulnerable to a constitutional challenge. In contrast, FLAC and Tanya Ní Mhuirthile of the Transgendered Equality Network Ireland (TENI) noted that this criteria interferes with the special position of the family in the Constitution.

At the launch, transgender activists had a number of concerns about the report - for example, that transgendered persons were not represented on the GRAG itself. However transgendered activists welcomed the fact that gender reassignment surgery was not a pre condition to obtaining a Gender Recognition Certificate.

FLAC noted that their suggestion that existing equality legislation be amended to expressly include for discrimination on the grounds of gender identity was not included in the report. Council of Europe Commissioner for Human Rights Thomas Hammarberg has said that it is imperative that States include gender identity as a prohibited ground of discrimination in their national legislation.

The effect of a Gender Recognition Certificate would be that the applicant's preferred gender would be formally recognised by the State. The applicant would then be allowed to marry persons of opposite gender to the applicant's recognised gender. The applicant would be issued with a new birth certificate, in a similar format to that of their original certificate. There would be no fee to apply for a Gender Recognition Certificate.

Launching the report, Minister for Social Protection Joan Burton stated that the legislation proving for issuance of a Gender recognition Certificate would be a priority for Government.

Welcoming the publication of the report, FLAC commented "The Government accepted over a year ago that it was in breach of the European Convention over its treatment of Dr Foy. It would seriously undermine our reputation as a human rights compliant country if we delayed any further in remedying this breach".

Click here to view the report of the Gender Recognition Advisory Group.

Click here to view FLAC's press release on the publication of the report.

Click here to read Michael Farrell's (FLAC Senior Solicitor) views on the report.

Click here to read TENI's press release about the report, where the organisation highlights its reservations about the GRAG's recommendations.

Click here to read the Irish Human Rights Commission's press release and submission to the GRAG.