Broden Giambrone is the Chief Executive of the Transgender Equality Network Ireland. 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.
Last December, the Irish Government introduced the Gender Recognition Bill 2014. This piece of legislation aims to formally recognise trans and intersex people in Ireland.
Legal gender recognition provides a process for an individual to change the gender marker on their birth certificate and be legally recognised by the State in their true gender. This is important for practical and political reasons. Practically, birth certificates are a foundational identity document and are used at key moments in our lives – when we go to school, access social welfare and get married. But legal reocgnition is also symbolically and politically important – it is the State recognising that trans and intersex people exist. This is critical because these communities are not covered in legislation and are not explicitly protected in Equality legislation. We are invisible in legal terms.
Over twenty years have passed since Dr Lydia Foy began her journey to be legally recognised and now the proposed legislation is weaving its way through the legislative process to become law. This is good news for the trans community who have been waiting a very long time.
Legislating for legal recognition is to be welcomed but the Gender Recognition Bill that the Government is proposing falls short of human rights standards and will fail to protect the rights, dignity and privacy of our community. This legislation fails to protect the most vulnerable in our community.
The Gender Recognition Bill does not adequately address the needs of young trans and intersex people. While this Bill will allow 16 and 17 years olds to have their gender recognised, the criteria they must fulfil in order to receive recognition are unfairly onerous. It is suggested that they will need: parental consent, letters from two medical practitioners, and a court order. The criteria is so rigorous that it will likely take these young people up to two years to fulfil and that they will in fact be 18 before they are legally recognised. This Bill also fails to provide any protection for individuals under 16.
Over the course of the last few years there has been a steady increase of families who have approached TENI for support for their trans children. These young people, many in their early-to-mid teens, face significant challenges in schools, including bullying at the hands of their peers and even from the administration. Many young trans people drop out of school because they cannot cope with a system that constantly denigrates their identity and excludes them. Legal gender recognition should be available to young people to ensure that their rights are protected.
The Gender Recognition Bill also introduces medical criteria that will stigmatise and pathologise our community. In the current Bill trans people will need to go to a psychiatrist or an endocrinologist and submit to a medical evaluation. There is no definition of medical evaluation in the legislation and this may result in an individual being forced to endure unnecessary diagnosis processes or, more troublingly, could result in physical examinations. While many trans people medically transition, that is take hormones or have surgeries to align our bodies with our gender identity – not everyone can or will. Furthermore, medical interventions should be separate from a legal recognition process. Gender identity is deeply personal and all people should have the right to self-determine. In countries as diverse as Argentina, Denmark and soon Malta, this is how the legislation works.
Finally, this Bill requires that trans and intersex people be single before they can be legally recognised. Relationships that have survived when one spouse has come out or transitioned will be punished by the State. Individuals will now be forced to make an impossible choice: Split up your family or have your gender legally recognised. For happily married trans people this would mean perjuring themselves to attain a divorce. The Government have asserted that this provision is a direct result of the prohibition on same-sex marriage, however, legal experts have disagreed (http://humanrights.ie/children-and-the-law/ryan-on-gender-recognition-and-marriage/). Furthermore, this hinges one set of rights on another. And while the marriage equality referendum may resolve this issue in May, there is no certainty of its passage. In the meantime, married trans people will find their lives hanging in the balance.
Legislation should reflect the lived realities of the people who it intends to protect. The Gender Recognition Bill has the potential to truly improve the lives of trans and intersex people in ireland but it is imperative that the Government listens to the people whose lives this legislation will affect. Trans voices and lives need to be at the centre of this discussion if the right legislation is to be passed.