Ireland : Government Publish Gender Recognition Bill

Sara R. Phillips, Chair of Transgender Equality Network Ireland (TENI), spoke Friday 19th December about the importance of legal gender recognition:

“We are very disappointed that this Bill does not go further in protecting the rights of trans people in this country. This is a moment we should be celebrating as we are one step closer to legal recognition. However, many members of our community are still excluded in this legislation. We remain hopeful that the Government will work closely with the trans community to improve this legislation before it becomes law. There is still time to do the right thing. Gender recognition legislation has the capacity to greatly improve the lives of trans people, and to ensure that trans people are treated with dignity and respect as they live their day to day lives. This is, and always has been, a human rights issue. Trans people deserve the respect of being recognised and protected for who they are.”

Gender Recognition Legislation: Overview

Ireland is currently the only country in the EU that has no provision for legal gender recognition.

The failure to introduce gender recognition legislation has left transgender and intersex persons without formal legal status and has significantly impacted upon their ability to access basic services such as social security benefits, education and transport.

The publication of this Bill marks progress. However, there are still a number of key areas which fail to fully protect trans people and their families.

Medicalisation of Identities

In the Gender Recognition Bill 2014, a primary treating medical practitioner (defined as ‘a person’s primary treating endocrinologist or psychiatrist’) is required to confirm that the person:

“(I) has transitioned or is transitioning to his or her preferred gender, and (II) the medical practitioner is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in his or her preferred gender”

Moreover, the Bill specifically requires that the primary treating medical practitioner carry out a “medical evaluation of the applicant”.

“There is no doubt that this is diagnosis by any other name. The individuals who must sign off on the legislation are the very same individuals who provide a diagnosis or medical treatment. This is restrictive and unnecessary. Trans persons are best placed to understand and identify their own gender, as they live it everyday,” said TENI Chair Sara R. Phillips.

The requirement that, in order to access legal gender recognition, an individual must first submit a statement from their primary treating medical practitioner perpetuates the pathologisation of gender identity in Ireland. For many trans and intersex persons, the pathologisation model is a source of great controversy and distress.

Recognition of Young Trans People

The Bill contains a pathway for legal recognition for 16 and 17 years olds. This will improve the lives of many young trans and intersex people who will be able to obtain legal recognition prior to leaving school and change their necessary identification documents.

However, the process that is being proposed is onerous. In order to be legally recognised, young people aged 16 and 17 will, in most cases, require parental consent, a certificate from their primary treating medical practitioner, a second certificate from ‘an endocrinologist or psychiatrist, who has no connection to the child’, and a court order.

“The inclusion of 16 and 17 year olds in this Bill is important. However, we are deeply concerned that the process will be too burdensome and act as a barrier to many young people being able to avail of the legislation,” said Phillips. “Requiring a court order is particularly troublesome.”

Moreover, the Bill still excludes those under 16 and leaves them in a vulnerable position. Without legal protection these young people will be open to discrimination.

Forced Divorce

The Bill also requires that an applicant for gender recognition must be single. This means that married trans persons must divorce as a pre-condition if they are to be recognised in their preferred gender. This requirement will force many trans people to choose between their families and their right to be legally recognised.

“The legislation pertaining to divorce in Ireland is strict and means that trans people who are happily married will likely not be eligible for divorce unless they perjure themselves in court. This requirement will leave many families in limbo if it remains,” said Phillips.

While the Government has committed to a referendum on civil marriage equality in 2015, there is no guarantee that this referendum will pass. There is also no time-frame currently in place for this requirement to be removed should the referendum pass. This leaves married trans people in a disproportionately arduous situation.

Next Steps

As the Bill has been published, it will now be debated in the Houses of the Oireachtas. As a result of the settlement reached in the Lydia Foy case, the government has indicated its ‘firm intention’ to introduce the bill into the Houses of the Oireachtas early in 2015.

“TENI will continue at this stage to advocate for the introduction of inclusive, rights-based legislation that will ensure all members of the trans community can avail of their human rights. We call on the Government to engage with the trans community and TENI to ensure this legislation reflects the lived realities of trans people in Ireland,” concluded Phillips.

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