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Gender recognition legislation provides a process enabling trans people to achieve full legal recognition of their preferred gender and allows for the acquisition of a new birth certificate that reflects this change.
Trans people are among the most vulnerable members of Irish society and experience high levels of stigmatisation and marginalisation. Research shows suicidality, regular harassment and violence and systemic discrimination are commonplace. The lack of State recognition of trans identities is a major contributing factor to the marginalisation of trans people and it is an urgent health and human rights issue.
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. Birth certificates are a foundational identity document and are often requested for official purposes (such as accessing social welfare, obtaining a Personal Public Service Number to work and getting married). In certain cases, a person may be recognised as one gender on certain documents and another gender on their birth certificate. This puts the individual at risk of being ‘outed’ when they apply for a job, a new passport or entry to education. It can also lead to a denial of services and restrict an individual’s ability to travel domestically and internationally. Forced outing may result in harassment, discrimination and even violence.
In 2007 the European Commissioner for Human Rights, Thomas Hammarberg, stressed the obligation for States to adopt a system to recognise the preferred gender of trans people. Presently, 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 in her female gender and provide her with a new birth certificate. This was the first declaration of incompatibility to be made under the ECHR Act.
The High Court’s declaration of incompatibility means that Ireland must introduce legislation immediately. This was re-iterated by the Coalition Government in 2011, comprised of the Fine Gael and Labour parties, in their Joint Programme for Government. This document pledges to “ensure that trans-gender people will have legal recognition and extend the protections of the equality legislation to them.” While this commitment did not expressly outline the scope or timeline of the legislation, the Labour party (secondary partner in the Coalition) passed a motion at their annual Conference in April 2012, calling on “the Minister for Social Protection to bring forward legislation that takes account of the human rights and dignity of transgender persons in line with the recommendations of the Human Rights Commissioner of the Council of Europe and to widely consult those affected during the legislative process.” This motion was overwhelmingly passed and is now party policy. Members of other political parties, including Fine Gael, Fianna Fail, Sinn Fein and People Before Profit, have also signaled an interest in gender recognition through Parliamentary Questions that highlight the Irish state’s inaction on this issue.
In May 2010, the Irish Government set up the Gender Recognition Advisory Group (GRAG), an inter-departmental working group. After consultation and research, the GRAG published a report in 2011 which outlined a legal pathway and qualification criteria for legal gender recognition which were highly restrictive and clearly infringed on an individual’s right to privacy, personal dignity and family life.
In July 2013, the Minister for Social Protection published the Draft Heads of Bill (framework of legislation). This was subsequently referred to the Joint Oireachtas (Government) Committee on Education and Social Protection, made up of members of Dáil (Parliament) and Seanad (Senate) for review. In September 2013, the Committee took written submissions from groups and individuals addressing the various Heads (sections). This was followed by two-days of public hearings in October. This process resulted in a comprehensive report by the Committee on Education and Social Protection which was published in January 2014. The Committee’s report was positive in many ways and addressed the shortcomings of the proposed legislation. Following the publication, the report was publicly debated in Dáil Eireann (lower house) in May 2014 by TDs and the Minister for Social Protection. At the debate, four TDs from the majority of the main political parties (Labour, Fianna Fail, Sinn Fein) and one independent TD spoke positively about the legislation and encouraged the Minister to address the gaps and restrictive measures that remain in the proposed legislation.
In June 2014, the Minister for Social Protection published a revised General Scheme of the Gender Recognition Bill following Cabinet approval. The revised scheme included several significant changes to the proposed Bill, including the removal of the Sports clause (which would have severely hindered trans people’s participation in sports) and provided a pathway for legal recognition for 16 and 17 years olds. The Minister also clarified and re-iterated that the legislation would include intersex affected individuals and that the medical criteria would not include a diagnosis. In the formal press release, the Minister noted: “The process will not require details of care including medical history or confirmation of a diagnosis. Nor will it require that the person has lived in the acquired gender for a specific period of time after their transition.” The General Scheme of the Bill has now been referred to the Office of the Parliamentary Counsel for drafting with the aim of the legislation being published by the end of 2014.
Beyond Irish borders, the Government is facing pressure from Europe on this issue. In 2012, following a trip to Ireland, the Council of Europe Commissioner for Human Rights, Nils Muižnieks, wrote to Minister Burton to highlight the lack of legal recognition of trans people. He expressed concern that no clear timeline was provided and stressed the importance of self-determination and the right to family life within the legislative framework.
In July 2014, the UN Human Rights Committee issued their concluding observations after their examination of Ireland’s compliance with the International Covenant on Civil and Political Rights (ICCPR). In their concluding statements, the Committee explicitly raised issues with the new Heads of a Gender Recognition Bill with specific reference to the single requirement which would force married trans people to get divorced in order to have their gender legally recognised.
Dr Lydia Foy
In March 1993 transgender woman Lydia Foy wrote to the Irish Registrar General seeking a new birth certificate showing her female gender. Her request was refused. Twenty years later she is still battling for recognition. 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 in her female gender and provide her with a new birth certificate. This was the first declaration of incompatibility to be made under the ECHR Act. In January 2013 Dr Foy began her third set of legal proceedings against the Irish State as part of that struggle for recognition. In November 2014, Lydia Foy settled her case with the Irish Government. The Government has stated it will introduce legislation in 2014 and has a 'firm intention' of enacting legislation in 2015.