Broden Giambrone is Director of Transgender Equality Network Ireland (TENI). TENI seeks to improve conditions and advance the rights and equality of trans people and their families. TENI works in four main areas: support, education, advocacy and capacity building. www.teni.ie
Click here to read a 23 October PILA Bulletin article about the draft legislation and its consideration by the Joint Oireachtas Committee.
Transgender (trans) people are among the most vulnerable members of Irish society and face significant levels of stigmatisation and marginalisation. Research by TENI and Press for Change shows that trans people experience some of the highest rates of suicide, regular harassment and violence and systemic discrimination.
In Ireland, a major contributing factor to the marginalisation of trans people is the lack of State recognition of trans identities. Legal gender recognition will provide a process for changing the gender marker on the applicant’s birth certificate.
Ireland is the last country in the European Union that does not allow for legal recognition of trans people. This is despite a High Court ruling in 2007 that found the State to be in breach of its positive obligations under Article 8 of the European Convention on Human Rights (ECHR) in failing to recognise Dr. Lydia Foy, a transgender woman, in her female gender and provide her with a new birth certificate.
Despite the many delays, there has been concrete progress on this issue in the past few months. On 17 July 17, the Minister for Social Protection published the General Scheme of the Gender Recognition Bill 2013, following Cabinet approval. It provides for the recognition of the acquired gender of trans people aged 18 and over and who are not married or in a civil partnership. The Minister has referred the Bill to the Joint Oireachtas Committee on Education and Social Protection for consideration. In August, the Committee took submissions from interested parties who were invited to provide input into this process.
On 23 & 24 October, the Joint Committee on Education and Social Protection held meetings to discuss the General Scheme of the Gender Recognition Bill 2013. This was a significant moment for trans rights in Ireland and groups and individuals who made submissions were invited to speak before the Committee. Over the course of two days, trans people and their families, members of civil society and legal experts gave presentations that highlighted three main issues contained within the draft Heads of Bill. There was a clear consensus that these issues must be addressed to ensure that the legislation that is introduced ensures the rights, privacy and dignity of trans people in Ireland.
Three key issues:
Age
It is vital that guardians of trans and intersex children are able to apply for the rights contained within Gender Recognition legislation on their childʼs behalf, a position echoed in the advice of the Ombudsman for Children. Click here to read the Ombudman’s October 2013 advice. TENI has documented numerous instances of rights violations that are directly linked to the fact that a young person was not able to have their gender identity formally recognised. In one case, a trans boy was forced each day to wear a skirt into school because the principal did not accept his self-identification as male. Where a young personʼs outward manifestation of gender does not match the sex marker on their official documentation, that individual constantly faces the possibility of being publicly ʻoutedʼ, with the accompanying dangers of verbal and physical violence.
Forced Divorce
Trans people who are happily married and whose marriages have survived one spouse’s transition will be in the position where they will be forced to choose between their families and their right to be legally recognised. The requirement to be single fails to acknowledge that trans families exist, and fails to offer their marriage the constitutional protection afforded to every other marriage in Ireland. This requirement also violates the right to private and family life and the right to equality before the law. Furthermore, someone who is not a party to that marriage (i.e. the State) is prompting the dissolution of that marriage, the very thing that Article 41 is supposed to guard against. Taking this approach effectively establishes a precedent that could ultimately render the constitutional protection of the marital family meaningless. It may also leave trans people and their spouses and children in a legal limbo.
Physician’s Letter
Yogyakarta Principle No. 3 recommends that states ʻfully respect and legally recognise each personʼs self-defined gender identityʼ and ʻensure that procedures exist whereby all state-issued identity papers [...] reflect the personʼs profound self-defined gender identityʼ
The requirement of a physician’s letter confirming ‘transition’ undermines the self-determination of trans people and conflates a legal process with medical interventions. By using the language of ʻtransitionʼ, the criteria excludes intersex persons, whose bodies simply develop naturally. The same ʻtransitionʼ language also infers medical treatment of diagnosis, hormones or surgery. Some trans people may not be able to undergo a medical transition, due to age or an existing medical condition.
Conclusion
TENI and our allies called on the Committee to carefully consider the issues that were raised and to take an active part in suggesting amendments to the draft Heads of Bill. This will ensure that the legislation that is enacted in Ireland is relevant, modern, inclusive, and progressive. Ireland has an opportunity to be a leader in Human Rights on the world stage. This legislation must be a forward thinking document that we can be proud of.
Click here to read a joint press release from Amnesty International Ireland, BeLonG To Youth Services, GLEN, LGBT Noise, TENI and TransParenCI parent and family support group.
Editor’s note: The Free Legal Advice Centres (FLAC) also appeared before the Joint Committee to discuss the draft legislation. FLAC has said that the Scheme should also include provision for legal sanction in cases of discrimination of transgendered people. Click here to read a FLAC Press Release.