Sinéad Baker | Editor-at-Large
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. Ireland remains one of the only countries in the EU that has does not offer citizens provisions for legal gender recognition. The proposed Gender Recognition Bill is intended to address this absence, however there has been significant criticism in response to some of its provisions since its original publication.
The bill is intended to legally recognise the gender identity of people in Ireland, specifically to transgender people, who identify with a different gender than the one they were assigned at birth, and intersex people, whose reproductive or sexual anatomy doesn’t seem to fit the typical definitions of male or female.
The bill itself marks progress. Táiniste and Minister for Social Protection, Joan Burton has stated 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.” However, for those the bill will affect, many of the provisions are seen to undermine the progress it is attempting to achieve.
For those the bill will affect, many of the provisions are seen to undermine the progress it is attempting to achieve.
The bill was originally published in December 2014, and was debated at second stage in the Dáil on Thursday, 5th March 2015. The next stage for the bill will take place on Wednesday March 11th, when the bill goes to the Select Sub-committee on Social Protection. In advance of this, LGBT rights groups are campaigning to fix the inadequacies of the bill. Much of this criticism has been lead by students: reps from Trinity College Dublin Students’ Union (TCDSU) have met with Minister of State Kevin Humphreys and attended the LGBT Noise Rally for Recognition outside Leinster House on Valentine’s Day. Students are being encouraged to lobby their TDs in advance of Wednesday.
The bill currently requires those who wish to change their legal gender to have a primary treating medical practitioner, which is defined as “a person’s primary treating endocrinologist or psychiatrist”, confirm that they have “transitioned or is transitioning to his or her preferred gender”. The medical practitioner must also be “satisfied that the applicant fully understands the consequences of his or her decision to live permanently in his or her preferred gender”.
This condition has been proved controversial. Sara R. Phillips, Chair of Transgender Equality Network Ireland (TENI), has called this provision “restrictive and unnecessary. Trans persons are best placed to understand and identify their own gender, as they live it everyday”. These requirements from a medical practitioner have been accused of perpetuating the view of LGBT people as medically abnormal and opening routes for systemic discrimination.
The bill also requires any married person looking to change their gender to get a divorce, as same-sex marriage is not yet legal in Ireland
Dr Philip Crowley, National Director of Quality and Patient Safety with the Health and Safety Executive (HSE), has advocated the view that those who wish to legally change their gender should be able to self-declare, stating: “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/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.”
Opposition TDs have also said that, as there are perhaps only three or four physicians in the country who are qualified to provide this statement, this will create a great deal of unnecessary work for a small number of health professionals, placing strain on very limited resources in the health service.
This idea of “forced divorce” means that transgender people are forced to choose between their families and relationships and being recognised in their true gender.
The bill also requires any married person looking to change their gender to get a divorce, as same-sex marriage is not yet legal in Ireland and there is no guarantee that the upcoming marriage equality referendum will pass. This idea of “forced divorce” means that transgender people are forced to choose between their families and relationships and being recognised in their true gender. Senator David Norris, speaking in Seanad Éireann in January 2015 Wednesday, commented: “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.”
Because the circumstances in which a court may grant a divorce in Ireland under the Fifteenth Amendment are quite limited, requiring that a marriage be irreconcilably broken down with “no reasonable prospect of a reconciliation”, it is likely that a transgender or intersex person who is happily married would not be able to get their gender recognised at all.
The bill currently does not make any provisions for people under the age of 16
While the original wording of the bill made no provision for young people under the age of 18, considerable criticism of this provision has since seen the introduction of a number of requirements on those between the ages of 16 and 18, including the need for parental consent and a court order. The bill currently does not make any provisions for people under the age of 16 regardless or whether or not they have parental consent, a provision Senator Averil Power described as “disappointing”.
Speaking to The University Times Cearbhall Turraoin of LGBT Noise said: “Failing to recognise young people is nothing short of gross negligence. Young trans and intersex people are incredibly vulnerable, often facing a struggle to accept themselves, trying to come out to their parents and friends with the risk of rejection, bullying and all the mental health problems that go with that at a young age. The state could at least ensure that that child doesn’t have to worry about their school forcing them to dress in the uniform of the wrong gender, or being made use the wrong bathroom. But the government is taking a hands off approach, and refuses to do anything for these children in law.”
The bill… has been criticised for totally excluding non-binary people
The bill, while attempting to allow people to achieve full legal recognition of their preferred gender, has been criticised for totally excluding non-binary people – any person whose gender is not exclusively male or female. Failure to make adequate provisions for non-binary gender identities means that Ireland’s bill would already be considered out of date and behind in an international context: countries like Australia and Nepal offer citizens the option of a “third gender” on official documents.
Turraoin commented to The University Times: “We are still waiting for a satisfactory explanation from Minister Humphreys as to why the government has not bothered to look at the example set by several other countries for recognising non-binary trans and intersex people. It would seem that the government has simply tried to get away with doing as little as possible for gender recognition, and didn’t look into the issue at all. The Minister admitted as much when asked in the Seanad why the government wasn’t at least allowing non-binary recognition on identity documents as Australia does.”
The bill has also been criticised for being formed without adequate consultation with those the bill effects. Turraoin continued: “We’ve tried to find out from the government what consultation, if any, was done with intersex people, representative and advocacy groups and experts on intersex issues to determine if the government’s proposals would meet their needs. So far as we can tell the government has done no such consultation, they’re flying blind and just hoping it works.”
Photo: Senator Katherine Zappone
