Dáil Éireann debate -
Friday, 9 May 2014

Vol. 840 No. 4

Report on the General Scheme of the Gender Recognition Bill 2013: Motion

Deputy Joanna Tuffy

I move:

That Dáil Éireann shall consider the report of the Joint Committee on Education and Social Protection entitled, Report on the General Scheme of a Gender Recognition Bill 2013, copies of which were laid before Dáil Éireann on 16 January 2014.

I thank the Minister for Social Protection, Deputy Joan Burton, and her officials for attending. I also thank everyone involved in drawing up the report of the Joint Committee on Education and Social Protection. This includes not only the members but all those who participated in the process, including the stakeholders who made submissions and attended the oral hearings.

Forwarding the heads of a Bill to a joint committee to allow it to make reports and recommendations on proposed legislation is a relatively recent phenomenon. At this stage my committee has considered the general schemes of three Bills. It is a work-intensive process which, unfortunately, does not get the publicity it should. I was out canvassing yesterday when someone told me that the only committee that did any work was the Committee of Public Accounts. I had to put the alternative point of view. We do not necessarily go for headlines, but we undertake constructive work on policy. The report is part of that work.

The joint committee issued a call for submissions at the outset of the process. As a result, we received written submissions from eight groups and three individuals writing in a personal capacity. Two days of hearings followed. Of the groups which had made submissions, all but one attended the oral hearings. We received submissions from Transgender Equality Network Ireland, TENI; TransParenCI; BeLonG To Youth Services; LGBT Noise; FLAC; Amnesty Intentional, and the Equality Authority. The Ombudsman for Children also made a submission. Departmental officials attended to update the committee on the Department's point of view, the advice it had received and its work in preparing the heads of the Bill. All of the submissions received are online, as are the transcripts of the debate. The report includes appendices and some details of the submissions.

The main aspect of the report about which I want to inform the Dáil is the set of recommendations made by the joint committee. A number of stakeholders raised issues about the terminology used in the legislation. Having regard to practices in other jurisdictions and legislative constraints, we recommended that consideration be given to whether the term "preferred gender" should replace the term "acquired gender" in the Bill. We also made a recommendation on the age criterion included in the Bill. The heads of the Bill currently provide that a person must be at least 18 years on the date of application. A separate requirement is that an applicant must not be in an existing marriage or civil partnership.

On the age criterion, we recommended that the age at which a person might apply for a gender recognition certificate be reduced from 18 years to 16.

Measures should also be put in place to address the day-to-day concerns of transgender people under the age of 16 years. There was not absolute consensus in the committee on this issue, but the recommendation represents the view of the majority of the committee. However, there was consensus that there be some provision and that at the very least the welfare of persons under 18 should be taken into account when drafting the legislation.

Regarding the requirement that the person should not be in an existing marriage or civil partnership, the committee acknowledges that there is a difference of opinion between the Attorney General and others on the legal issues regarding gender recognition for persons who are married or in a civil partnership. However, the committee believes that a person being in an existing marriage or a civil partnership should not prevent him or her from qualifying for a gender recognition certificate, and urges the Minister to revisit this issue. We are asking the Minister to consider the matter further, taking into account the two different legal opinions put forward at committee hearings and in submissions. The committee also believes in principle that an existing marriage or a civil partnership should not prevent a person from qualifying for a gender recognition certificate. However, we recognise there is legal opinion that this might not be possible. Our recommendation recognises that there are two sets of opposing legal points of view on the issue.

The committee recommends that the current wording in the Bill with respect to evidence of transition should be reconsidered to address the concerns raised at the hearings that people not be stigmatised as a result of the requirements in this regard. This matter was raised in written submissions by the stakeholders.

We made a recommendation that guidelines for schools on supporting the inclusion of transgender young people in schools should be developed in consultation with relevant stakeholders.

Regarding participation in sport, we recommended that the provisions in head 26 should be reconsidered in consultation with stakeholders. Irish sporting regulatory bodies receiving public funding should develop comprehensive policies on the participation of transgender people.

Under the Equality Acts, we suggested that consideration should be given to amending the legislation to add "gender identity" to the existing nine grounds under which discrimination is illegal.

The two most discussed and most controversial areas the committee debated related to the age criterion and the requirement that a person not be in an existing marriage or civil partnership. The general scheme does not meet all of the wishes of the groups and individuals advocating change in this area. During the hearings, I asked if the witnesses felt the proposals on the table at the moment were progressive. There was general consensus that the proposals were progressive even though some people felt they did not go far enough. On the other hand, some of the issues raised by the general scheme were of particular concern to certain members of the committee and there was a divergence of views, especially over making provision for transgender persons under the age of 18 years, and for persons who are married or in a civil partnership. We believe that on balance the legislation will represent very significant progress in this difficult area.

I believe the committee had a very good debate on the matter. There was great engagement from the stakeholders and there was considerable interest in the process. This is not a straightforward issue, but it is important that the Minister acts so that we make progress. I hope the process has been helpful for the Minister and her Department. I look forward to the legislation in the area.

Minister for Social Protection (Deputy Joan Burton)

I start by thanking the Chairman and all the members of the Oireachtas Joint Committee on Education and Social Protection for the report the committee prepared on the general scheme of the gender recognition Bill. The contents of the report of 14 January and the contributions made at the hearings the committee held on 23 and 24 October 2013 have made an important and valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation.

The lack of legal recognition for transgender persons is a significant and long-standing issue. The High Court declared in 2008 that the State was in breach of its obligations under the European Convention on Human Rights because it did not have a process to legally recognise the acquired gender of transgender persons.

The interdepartmental gender recognition advisory group, GRAG, was established in 2010 to advise on the legislation required to give legal recognition to the acquired gender of transgender persons. There was a commitment in the current programme for Government that transgender persons would be provided with legal recognition. In July 2011, the report of the GRAG was published and the Government decided at that time that legislation would be drafted in line with its recommendations. However, subsequent to the publication of the GRAG report, my departmental officials and I engaged in a significant amount of additional consultation and research during the preparation of the legislation. The views of a range of organisations and individuals, who have experience and expertise in this evolving and complex area, including transgender persons and their representative organisations, were sought and considered.

On 16 July 2013, I secured Government approval for the publication of the general scheme of the gender recognition Bill. The Bill provides for the recognition of the acquired gender of transgender people aged 18 and over, and who are not married or in a civil partnership. The legislation will also facilitate persons with intersex conditions. Once enacted, the main effects of the legislation for those wishing to have their gender recognised will be as follows. The person will be officially legally recognised by the State as being of the acquired or preferred gender from the date of the decision to issue the gender recognition certificate. The recognition will be for all purposes, including dealings with the State, public bodies, and civil and commercial society. The person whose acquired gender is recognised will be entitled to marry a person of the opposite gender or enter a civil partnership with a person of the same gender.

The decision will entitle persons whose births are registered in Ireland to a new birth certificate that shows the acquired gender and new names, if names are also changed. Similarly, for those whose births are registered in the foreign birth register maintained by the Department of Foreign Affairs and Trade, the decision will entitle them to a new foreign birth registration certificate that shows the new gender and new names, if names are also changed. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.

The provisions in the Bill contain some very significant advances on previous proposals and compare very favourably with equivalent legislation in many other countries in Europe.

Following its publication, the general scheme of the Bill was referred for pre-legislative scrutiny to the Oireachtas Joint Committee on Education and Social Protection in July 2013. Officials from the Department of Social Protection, representative groups and legal and medical experts participated in hearings held by the committee in October and the committee's report was published in January 2014. Since its publication, I have given careful consideration to the report and have again consulted with a range of persons and organisations with particular experience and interest in this matter.

The Government agreed when discussing the general scheme of the Bill last year that if significant changes to the legislation were recommended by the committee, I would bring the matter back to Cabinet for the committee's recommendations to be considered. The report's recommendations cover a range of issues, including elements of the application process for gender recognition, the minimum age for recognition, the requirement for the applicant to be single, aspects of equality legislation and matters relating to participation in sport. As these issues will shortly be the subject of Cabinet discussion, I cannot provide a definitive response on the various recommendations in the report. However, I can comment on two issues, the application or validation process and the committee's recommendation regarding the development of guidelines on supporting the inclusion of transgender young people in schools.

In regard to the application or validation process, the committee has recommended that the current wording in the Bill with respect to evidence of transition should be reconsidered to address the concerns raised at the hearings that people should not be stigmatised as a result of the requirements in this regard. In July 2013, I secured Government agreement for a less intrusive and more streamlined approach which combines self-declaration with a supporting letter of validation from the person's primary physician, but does not require any details of the care pathway, surgical procedures, etc., that would have been explicit in the expert panel approach. The approach we have taken represents what is done in European countries that have recently advanced legislation. The revised approach is administrative. It involves an application to the Department of Social Protection rather than to an expert panel. The application is to include a statutory declaration by the applicant that he or she has a clear and settled intention of living in the acquired gender for the rest of his or her life, that he or she understands the implications of the application and that he or she makes it of his or her own free will. This new approach comes closer to the self-declaration model that many NGOs in the area advocate and dispenses with the need for a medical diagnosis to accompany the application.

An intersex person has a variation in their sex characteristics which does not allow them to be distinctly identified as male or female. Unlike the process proposed by the gender recognition advisory group, the new model in the general scheme of the Bill facilitates intersex persons in being included under the scope of the legislation and allows them to apply to be recognised in their acquired or preferred gender, if they wish. The aim is a more progressive and dignified process which protects all concerned and ensures that the registration process will be robust. The application process will be based on a statutory declaration to the Department by the person that they intend to live permanently in the acquired gender, and this must be accompanied by a supporting letter of validation from a medical practitioner who is treating the person.

The legislation will specify the type of medical practitioner providing the supporting letter, including endocrinologists, psychiatrists and surgeons, and will also require that the person is practising in the field of care and treatment of transgender and intersex persons. The application 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. These are both significant changes from the original recommendations made by the gender recognition advisory group.

I strongly feel that the application and validation process proposed in the general scheme of the Bill is progressive and does not in any way stigmatise persons who wish to apply for a gender recognition certificate. I know this was a concern for a number of members of the committee who contributed to the debate. The provisions in regard to the application process seek to be respectful to all concerned, to be prudent, practical and to preserve the integrity of State records.

The committee's recommendations and the guidelines on supporting transgender young people in schools are significant issues that have been raised often. The recommendation regarding the development of guidelines on supporting the inclusion of transgender young people in schools is within the remit of my colleague, the Minister for Education and Skills. When I recently met a number of parents of transgender children, the Minister also met them and expressed his strong support on this issue.

I would like to thank the Oireachtas committee again for all the work it has done in preparing the report. I expect the legislation and the committee's report will be considered at Cabinet shortly. Following Government consideration, the general scheme of the Bill, with any agreed revisions, will be referred to the Office of the Parliamentary Counsel for drafting, with a view to being published this year. My aim is to have this important and ground-breaking legislation enacted as soon as possible after that.

Deputy Willie O'Dea

Broadly speaking, I support the recommendations of the committee, as they make a great deal of sense, and I appreciate the approach taken by the Department in handing this issue over to the committee for debate. The committee debated the issues at length, interviewed various people and came up with recommendations, and I welcome that. However, that exercise will be meaningless unless the recommendations of the committee are substantially reflected in the final legislation presented to the House.

On the question of age, this seems to be a matter that has yet to be discussed by the Cabinet. As the proposal stands currently, people are excluded from applying for a gender identity certificate until they reach the age of 18. This flies in face of the evidence. Significant research shows that for most people, gender identity is formed between the ages of three and five.

A study compiled in the United Kingdom recently indicates that only 4% of people who changed gender arrived at the realisation that their birth certificates reflected the wrong gender at the age of 18 or over. The study also highlights the fact that 76% of respondents were aware that they were transgender before they had left primary school. That means that there is going to be a huge gap in people realising that their birth gender does not reflect reality. We are all aware of the difficulties individuals can encounter as a result of this and the fact that they live in a legal limbo. There is ample evidence to show that if one's outward manifestation of a particular gender does not coincide with the gender registered on one's birth certificate, problems can arise. The time constraints do not allow me to outline the nature of these problems, but they are well rehearsed in the representations received from the representative organisation. The transcript of the High Court case of S. v. the Adoption Board in 2009 provides a clear indication of the difficulties people such as those to whom I refer can encounter.

Deputy Aengus Ó Snodaigh drafted legislation which stated the parents or guardians of people under the age of 18 years should be able to apply on their behalf to have their registered genders changed. The difficulty I foresee in this regard is that if, in the case of a minor, a parent or guardian does the wrong thing for some reason, problems will arise. Surely it is not beyond the wit of the Parliamentary Counsel to include the appropriate protections in the proposed legislation. There is international precedent in respect of situations of this nature. The committee's recommendation to the effect that the age at which a person can make his or her own application should be reduced from 18 years to 16 is worthy of serious consideration by both the Department and the Cabinet, particularly in view of the evidence.

I welcome the changes announced by the Minister in respect of evidence of identity. She stated the self-declaration must be accompanied by a letter of validation from a person's primary physician. She also stated the legislation would specify the type of medical practitioner who was required to supply the supporting letter. My concern in this regard is that physicians and family doctors vary in their approach to these matters. Some family doctors take quite a conservative view and might, as a result of their own beliefs, refuse to provide the requisite letter. The Minister seemed to suggest that in such instances people could consult psychiatrists, etc., but she also referred to their consulting their primary physician. Will she clarify whether this will be the family doctor if he or she is the primary physician? I still object to the notion that medical intervention is necessary. What is contained in the proposed legislation represents great progress from the requirement to obtain a diagnosis to the effect that a person seeking to change gender has a mental defect. The approach seems to be to make matters as simple as possible by ensuring the medical letter will be something of a formality. I welcome this development, but I wonder what will be the value of the letter in the wider scheme of things. Will the Minister indicate whether someone who has a problem with his or her family doctor will be able to go elsewhere?

On the requirement to divorce or separate, the relevant head, as drafted, states that if a person who is married and changes gender seeks to acquire a gender identity certificate, he or she will be obliged to divorce in order to obtain it. The head also states those in civil partnerships will be obliged to take the appropriate steps to dissolve them in order to obtain such certificates. The Minister earlier stated a person who acquired a gender identity certificate would be able to enter into a civil partnership with a person of the same sex. Does that mean that the relevant head will be amended? In other words, will it now be the case that those who are in civil partnerships and change gender and want to acquire gender identity certificates will not be obliged to dissolve these partnerships? Their being made to dissolve them is illogical, particularly in view of what the Minister has proposed.

Deputy Joan Burton

I will come back to the Deputy on that point.

Deputy Willie O'Dea

On the question of divorce, I recognise the legal difficulties involved and the fact that successive Attorneys General have taken the view that a constitutional referendum will be required to allow for same-sex marriage. If one member of a married couple changes gender and he or she becomes of the same sex, from the point of view of the law, his or her union could be described as a same-sex marriage. It is rather bizarre that the Constitution protects the institution of marriage and that we are going to introduce legislation which is going to force happily married people - some of whom will want to remain married - to divorce or separate in order that one member of the couple can obtain a certificate which bestows on him or her a legal identity. Having such an identity is a fundamental right.

It must be borne in mind that the divorce regime is extremely restrictive. People are obliged to live apart for four out of the past five years before they can divorce. Therefore, a person who is happily married, changes gender and seeks a gender identity certificate will be obliged to leave his or her spouse and live alone for five full years before he or she can obtain it. I am not an expert on divorce law, but I understand one must prove that there are irreconcilable differences before a divorce can be granted. This means that two married people who want to stay together but who will be forced to obtain a divorce simply for the purpose of obtaining a gender identity certificate will be obliged to lie. It is obvious the marriage of two people who want to remain together has not broken down irrevocably.

On the question of preferred as opposed to acquired gender, I understand what TENI has stated. I also understand the arguments on both sides. I am broadly in favour of the committee's recommendation in this regard, but the only caveat I would add is that there is a rich harvest of European case law and international human rights law which, particularly in recent times, has come down very much in favour of extending the rights of transgender people. The judgments handed down in the various cases involved are based on the concept of acquired, as opposed to preferred, gender. There could be a difficulty if someone seeks to use the case law and human rights law to which I refer before the Irish courts which he or she would be perfectly entitled to do because the precedents set are based on the concept of acquired gender. Obviously, those on the opposite side of the court would be able to argue that the latter was different from the concept of preferred gender.

I welcome the Minister's announcement on discrimination against people who want to engage in sports. Frankly, I cannot understand the relevant head and time does not permit me to dissect it. However, I look forward to dealing with the matter when the Bill is brought before the House.

I am disappointed that the Minister did not make an announcement on a particular issue. The joint committee made a very simple recommendation to the effect that the equality legislation should be changed in order that gender identify might be added to the existing nine grounds on which discrimination is prohibited. It would be quite easy to make the relevant amendment to the equality legislation. Perhaps the Minister might provide a commitment in this matter. I do not believe she would have great difficulty in persuading the Cabinet on the import of this matter. In addition, I do not believe the discussion on it would be particularly long.

Every day that passes is one which takes us further away from the Foy judgment. We have been waiting a long time for the proposed legislation and the people to whom it relates have been obliged to suffer both discrimination and a lack of legal identity for long enough. There is a need for us to get on with it, but it is important to ensure we get matters right. The Minister should advocate to her Cabinet colleagues the approach suggested by the joint committee and bring the final Bill before the House as soon as possible.

Deputy Seán Crowe

Some of the contributions we have heard this morning have been welcome, and I will probably repeat some of the points that have already been made. Sinn Féin has long recognised the need for a legal framework for transgender people to have their birth certificates amended to reflect their preferred gender identity. It was for this reason, as has already been said, that we published a gender recognition Bill over a year ago. I have attended meetings in the House with other Deputies and Senators to examine this area as well as the best associated international experiences and how this is rolling out in other countries. When developing the Bill, we worked closely with transgender advocacy organisations to ensure it was reflective of their needs, and I urge the Minister to follow this approach.

We are elected to represent communities and constituencies, but that does not mean we can speak for every cohort. Therefore, when legislation is being introduced which affects a specific group of people it is essential that the group is not only consulted but also included in the process. The consultation should not be confined to a group of cis-gendered men in a room, including myself, who have never had to beg or fight for recognition of our status. I imagine people listening at home will be asking what cis-gendered means. The dictionary states that it relates to a person whose self-identity conforms to a gender that corresponds to his or her biological sex. I doubt any person in the Chamber has ever had to tell someone what his or her preferred pronoun was.

We welcomed that groups were invited in during the committee hearings on the scheme of the Bill, but I urge the Minister to take into account the concerns of transgender individuals who have been vocal on the Bill as it proceeds. The scheme of the Bill is long overdue. As far as we are concerned, progress on transgender rights should not be hampered by any bureaucratic hurdles.

Our Bill was based on the Argentinian legal framework, which is perceived internationally as the best in the world. Had it passed, it would have positioned Ireland as a leader on the world stage in terms of progressing transgender rights. It would have ensured that everyone had a right to legal recognition of their self-identified gender and could be issued with official documentation, including birth certificates, to recognise this fact.

It is singularly important that people are not forced to undergo any kind of surgery or be diagnosed with a mental health condition to have their preferred gender recognised. Furthermore, no person should be forced to divorce a life partner to have his or her gender recognised. It is an insult to expect transgender people to divorce a spouse and be diagnosed with a mental health condition to access such a basic human right. Discrimination should be done away with, not institutionalised.

While we welcome the general scheme as a step in the right direction, it is important that the Minister for Social Protection take on board the recommendations of the Oireachtas Joint Committee on Education and Social Protection. These include replacing the term "acquired gender" with "preferred gender" - I listened to Deputy O'Dea's comments in this regard; reducing the age at which a person can apply for gender recognition from 18 to 16 years of age; providing that a person who is already married is not prevented from qualifying for a gender recognition certificate; reconsidering the current wording with respect to evidence of transition to address concerns raised and ensure that people are not stigmatised as a result of the requirements in this regard; and the amendment of equality legislation to include gender identity.

Transgender and intersex people do not live in a vacuum and we know this. They have families and friends and they are part of our communities, schools, colleges and workplaces. They vote for us: some of them vote us out and some of them vote us in, but, regardless, we are elected to represent them in the House. They are entitled to the same rights as everyone else in Ireland and they should be treated with dignity and respect rather than as objects of fun or derision.

I commend Dr. Lydia Foy on the bravery she has displayed in fighting the State for recognition through successive legal challenges. This is about human rights. People should not have to fight for legal recognition of who they are as people. However, for as long as there remains no mechanism for transgender or intersex people to get new birth certificates in their gender the State remains in breach of the European Convention on Human Rights. The failure to ensure legal recognition has ensured that transgender and intersex people are without legal status and therefore negatively affected in respect of their ability to access the most basic of services, including social welfare benefits, education and transport.

Transgender Equality Network Ireland, TENI, which carries out great work supporting transgender people, has raised cases in the past in which transgender boys attending schools have been forced to wear skirts every day as part of their uniform because the school management does not recognise their gender. The Minister, Deputy Bruton, indicated that the Minister for Education and Skills met the parents of transgender pupils and that he was very supportive, but what does that mean? Will we see changes in schools? I am keen to hear the Minister's reply and what exactly will happen. It is not fair that the State should stand over the infliction of this type of torment on young people every day, but this is what is happening because of the absence of a mechanism for legal recognition.

As the report suggests, the language used in the Bill must be changed. As legislators, we have a responsibility when dealing with this issue to ensure that an element of public education is involved. Clearly, "preferred gender" is a far better term to use and would enable people to have their true gender recognised. Such people are not acquiring anything new aside from a birth certificate. The language should be positive and reflect the objective of allowing a person to live in his or her true gender and have that recognised.

It is imperative that the age requirement be revisited. Young transgender people in many cases will have already begun the process of transition by the time they are 18 years of age. In fact, many young people have sought out pathways to transition before the onset of puberty. We know this from international studies. A blanket age restriction is not in line with international standards on the rights of teenagers or their best interests. Amnesty International has recommended a case-by-case approach.

Where a young person is afforded the ability to medically transition, the age of medical consent is generally 16 years. Where such people are not afforded legal transition they are vulnerable to an increased risk of abuse. If a young person does not outwardly match what is written on his or her official documentation, he or she runs a constant risk of being outed. We know that transphobic attacks involving verbal and physical violence have taken place not only here but abroad. Some states have introduced homophobic legislation, with the attendant danger of attacks, imprisonment and so on. The Government has a responsibility to prevent any further exposure to risk.

We know that transgender people are already at an elevated risk of suicide and depression. All the figures are available in this regard, and that risk must not be exacerbated. We must do everything within our power to change it. This is not only the view of Sinn Féin. The Ombudsman for Children has said that forthcoming legislation should remove the criterion relating to minimum age, that a parent or guardian should be enabled to make an application for a gender recognition certificate on behalf of his or her child, and that children of 16 years should be enabled to apply in their own right.

Reference has been made to medical requirements. The requirement to provide a statement by a physician to obtain a gender recognition certificate should be removed. Leaving this in serves only to further stigmatise transgender people, as does the need to undergo specific health treatments which may not be medically necessary. We know of the difficulties some countries have had in this area in respect of obtaining expertise and the difficulty of getting experts.

People should not have to undergo any specific health treatment or be judged according to medical criteria to obtain legal recognition of gender. Ireland is way behind other countries on this issue. The current scheme is a missed opportunity to uphold people's rights. Other countries have made progress in this area and the sky has not fallen in. Other jurisdictions, including Britain, Germany and Belgium, offer early medical intervention to transgender teenagers because of the positive benefits to their mental health. In Argentina the law allows those under 18 years to change their legal gender with consent of their guardians.

Denying legal recognition of a preferred gender directly contributes to the perpetuation of transphobic bullying. There are cases of the CAO system not recognising the leaving certificate results of a person who was going through a transition because the results were not received. The stress of going through exams and university applications while grappling with a transitional process should not be compounded by a legal structure that allows this kind of discrimination.

One of the major aspects of the scheme that must be revisited is the fact that only persons who are unmarried or not in civil partnerships will be entitled to recognition of their preferred gender. The implication of this is that, regardless of the opinions of those involved, a transgender person would be compelled to divorce a spouse or civil partner if the person wished to have his or her gender legally recognised. The underlying premise is that one cannot inadvertently allow the introduction of same-sex marriage under the wire by allowing two people to marry and then for one to be recognised-----

Acting Chairman (Deputy Seán Kenny)

The Deputy must conclude.

Deputy Seán Crowe

-----as the same gender as the person he or she married. There is also a warped idea that a person in a marriage or civil partnership could not possibly want to stay with a person who has had another preferred gender legally recognised. It is crazy stuff.

Transgender people who are married or have families are entitled to the same protection-----

Acting Chairman (Deputy Seán Kenny)

The Deputy has gone way over time.

Deputy Seán Crowe

I know, and I am sorry. In conclusion, I welcome the report, as it is a useful starting point. It is not for the Minister, me or anyone else to be the arbiter of a person's gender identity. It is up to the person himself or herself. This should be fully respected and legally recognised by the State.

Deputy John Halligan

I welcome members of the Transgender Equality Network Ireland, TENI, especially Ms Vanessa Lacey, its PR officer, and members of Amnesty International.

It is worth reflecting on the fact that, right across the world, many people are being subjected to discrimination, violence, imprisonment or execution because of their sexual orientation or gender identity. Uganda's president has signed an anti-homosexual bill into law, there is repressive legislation in Russia and northern Nigeria and many people, even in Western civilisation, have distorted views. In Nigeria, the transgender group's slogan is "Living for love, dying because of hate".

We must accept that there is a rising tide of homophobia in many parts of the world. Amnesty International, of which I am a member, has accused some countries of violating the human rights of people who are trying to change their gender identity legally. In a damning report, it documented how transgender people were forced to undergo invasive surgeries, forced sterilisations, hormone therapies and forced divorces before they could change their legal status.

I welcome the committee's report before the House today, although I do have some reservations. I will go through them as quickly as I can because I do not have as much time as I would like. Amnesty International has a small problem with the establishment of a blanket age restriction, in that it is not entirely in line with international standards on the rights and best interests of children, particularly their right to express their views freely and to have same taken into account. We would prefer a case-by-case approach in which the child's views could be highlighted by the committee on the rights of the child and given due weight when the child is capable of forming her or his view. This relates to section 12(85). However, I understand the rationale for lowering the age criteria, given the fact that adolescents of between 16 and 18 years of age can consent to medical and dental treatment without the consent of their parents or guardians on the basis of section 23(1) of the Non-Fatal Offences against the Person Act 1997. I welcome this part of the report as a first step and will not oppose it in the Bill.

I have grave difficulty with the committee's recommendation that the Bill's current wording in respect of evidence of transition be reconsidered to address the concerns raised at its hearings about people potentially being stigmatised as a result of this requirement. I will seek the removal of the requirement for a physician's statement to obtain a gender recognition certificate. Such a requirement would not only result in someone being stigmatised, but also in the need to undergo specific health treatments, for example, hormone treatments and surgeries that are not necessarily a medical necessity. We should consider this issue carefully. Should the Government believe there is a need to retain some kind of supporting statement, it should not be the exclusive preserve of the medical community. A broad category of persons should be able to provide such a statement. Nor should the statement require individuals to undergo health treatments or be judged according to medical criteria in order to obtain legal gender recognition. I urge committee members to reconsider this issue.

Everyone should read TENI's recommendations, which are excellent and have been accepted by many organisations across the world, including Amnesty International. In TENI's opinion, legislation based on human and civil rights is a key to equality for all. The end of its document sums up all of my beliefs as regards rights for transgender people. It reads:

Trans and intersex people do not live in a vacuum. We have families and friends; we are part of communities and schools and colleges and workplaces. We are entitled to the same rights as everyone else living in Ireland. This issue is about basic human rights, and therefore it affects us all in Ireland.

The people best placed to advise on legislation are those who have drafted this document. I have met many of them and some are good friends of mine. I am always pleased to support their efforts, although doing so can be at a cost. There is still some homophobia in Ireland. While I was mayor of Waterford city, I was not able to take part in the gay parade because I was away at the time, but I held a reception for transgender, gay and lesbian people. Ms Lacey attended it. I received a number of obscene telephone calls - almost all of them were anonymous, of course - calling me everything under the sun.

Many of us in the Chamber are decent and honourable people. This legislation would not have been discussed ten or 15 years ago. I congratulate the Minister, who has always been a strong advocate of gay and lesbian rights. I would not take that away from her. I often congratulate her, although we disagree on some issues. If Members of Parliament cannot stand up for the civil rights of gay, lesbian and transgender people in the face of homophobia, who else will? Only we are capable of doing it, as we were elected. In fact, we were elected by many of the people in question.

There is an interesting statistic on how many people will be affected by this legislation. The Gender Identity Research and Education Society, GIRES, estimates the prevalence of gender variance at 1% in Ireland, or approximately 48,000 people - the number of people that live in Waterford city, according to the 2011 census. GIRES advises that organisations should assume that 1% of their employees and service users may be experiencing some degree of gender variance and that 0.2% may undergo transition.

As Deputy Crowe stated, we must move away from stigmatisation, which can happen when we talk about transgenderism.

These are ordinary people like the Minister, me and everybody else. If they are gay, lesbian or transsexual, so what? They are human beings and entitled to their sexual orientation.

I will not oppose the reduction in age from 18 years to 16, but I advise the joint committee, which is a very good one, to re-examine the physicians' statement and speak to TENI, the members of which have spoken to psychiatrists, psychologists, physicians, specialists and so on and come up with very good recommendations in their report. I am not sure what happens now in terms of whether a Bill will be brought before the Dáil, but that gives us time to change that aspect. However, the Minister should not change it just because I am asking her to do so. She should meet the representatives of the organisations involved and listen to what they have to say about it.

Deputy John Lyons

The International Dublin Gay Theatre Festival is being held over two weeks from 5 May and one of the plays is called "Eirebrushed". It was written by Mr. Brian Merriman of the Equality Authority and runs from 5 to 10 May, which means that Members have one more day to get to see it, if they have not seen it already. I went to see it on Monday night. It examines four heroes of the 1916 Rising. They return to a modern Ireland to see if modern society has achieved what our founding fathers and mothers set out to achieve. One of the people featured is Elizabeth O'Farrell, about whom I knew nothing, apart from every day driving by the park named after her, and the penny only dropped when I heard her story last Monday night. She was the nurse who risked her life to issue the surrender to the British outside the General Post Office, but she has been airbrushed out of many of the photographs depicting that act. That reminds me in some way of the issue we are debating. At the time we were oppressed by the British. It is safe to say, without offending anybody, that when we gained our independence, we allowed another group to oppress us, but the people who oppress us the most these days are ourselves as a society.

The play is about minority groups and three of the characters are confirmed as being gay or lesbian. The sexual orientation of the fourth is questionable, but through their writings, it is suggested they are possibly gay. I will leave it up to Members to identify the particular 1916 hero in question. My point is that they were four people from minority groups, two of whom were women and did not have a voice and were airbrushed out of society. Thankfully, they now have a voice. They were part of a minority in another way in that they were lesbian, and because they were not recognised at the time, they were able to move under the radar and continue to live their lives as lesbians in relationships with their partners. Elizabeth O'Farrell lived until 1957 with her partner in Bray.

The play tells a lovely story, but it is about minority groups. I know only too well what it is like to be part of a minority group and it is tiresome to have to continually fight for something when one is in a minority group because in most cases we are asking the majority to make amendments. I do not know what it is like for transgender people, but I do know what it is like to be in a minority from the point of view of being gay, and it is very tiring. We ask people who do not know first-hand what it is like to be someone like me to bring forward the best possible legislation to allow me to be included in society as a full citizen. This can be frustrating and I empathise with some of the groups represented in the Visitors' Gallery - I saw some members of TENI when I was in the Chair earlier. I understand it is difficult to ask people to try to understand one's position and the Minister has been progressive on the issue. People may pick at the legislation being brought forward, but we are in a much better space in that regard, although it is not perfect. There is room for improvement and the Minister has mentioned some of the improvements she intends to make. If nothing else, the legislation being brought forward, particularly as a result of the report from the Joint Committee on Education and Social Protection, is a working document that will make profound changes for the better for those who are not recognised and have been airbrushed out of our society. Essentially, they do not exist in terms of our laws, but they are now being brought out of the shadows. That is a very positive move and has to be recognised as such.

I am delighted to be a member of a party that believes in making these changes. I will continue to push for such changes because, like no other party, the Labour Party is the one that progresses the issues of individuals in society. I stand over this. We will always lead in that respect. I understand we might not have this perfect, but voices like mine will always be a thorn in the sides of some. Those of us who advocate for minority groups will continue to demand that all citizens be brought into the light to allow them to play a full role in society.

I will not repeat the points made by previous speakers which were similar, but I have issues with some aspects of the report. There are areas in which changes could be made, but I become frustrated, possibly because I have been a Deputy for only three years - I may understand in time - when I hear something cannot be done legally or when we compare our progressive legislation to that in another country. I thought about this while driving home recently in the context of other items of legislation and it applies to this legislation also. It might be time for Ireland to be the country to bring forward the legislation to which other countries will look, rather than looking at what is the best legislation in other countries. Our legislation should supersede it, particularly in dealing with social issues, on which we have been progressive in the past three years. The Gender Recognition Bill is one such legislative measure. I become very frustrated when I hear people say there are different legal points of view. I understand this. I do not profess to be a legal person, but I know what it is like to be an advocate for members of minority groups and such a response is not good enough in addressing the problem. We must examine ways of making legislation work to bring people who have been left out back into society. We must challenge ourselves in that regard. Deputy Willie O'Dea made a similar point. I am sure the Parliamentary Counsel can examine this in a way that will make it possible to make some of the amendments recommended in the report. What are the people in question to do? They are a very small group in society who have a weak voice, but they are paying a hefty price because of a lack of understanding of how far legislation can go to improve the quality of life of some individuals.

The report is exceptionally positive, but it will not be a magic wand. We have to be honest with people, including those in the Visitors Gallery. We should try to tweak those areas that can be changed and challenge ourselves when told something cannot be done in legislation. For example, we have to challenge ourselves on the relationships issue. I do not accept that we should decide that the only requirement on a person wishing to undergo gender transition is that he or she must be single, and that it cannot be applied to persons who are married.

We need to find a solution to this. The experts in the legalities of this world should be striving for it.

During the Constitutional Convention, a lecturer from UCD spoke about an ancient philosopher, whose name I cannot recall, who developed the concept of human flourishing - namely, that every individual is caused to flourish to be exactly who they are. If I am prevented from flourishing as an individual, other people in society cannot flourish to their totality and, as such, society does not benefit. Unless we allow every person to reach his or her capacity in terms of who they are, society ultimately loses out. It is not only the people affected by this issue who lose out, although they lose out most when we cannot make advances, but society as a whole. It is only by bringing every citizen who has been airbrushed out of our society back into society and developing legal frameworks to make this happen that we can have a better society, one of which we can be proud and with which the Elizabeth O'Farrells, Pádraig Pearses and Roger Casements and so on will be happy in terms of what the Proclamation set out to do in the first instance.

Minister for Social Protection (Deputy Joan Burton)

I thank all Deputies who contributed so thoughtfully to this discussion on the proposed legislation. In the context of sensitive or ground-breaking legislation, in 1996 I brought the Refugee Bill before the Dáil and Seanad, which was passed. In that Act, which provides for people seeking protection under the Geneva Convention, I, on behalf of Ireland, as people interested in these issues will be aware, introduced ground-breaking provisions. In the context of what subsequently happened in more recent decades in countries such as Uganda, this significant step to include in the definition of the Refugee Act as a grounds for protection under the Geneva Convention gender, sexual orientation and trade union membership was important. Ireland was very much to the fore in doing this. Since then, a number of other countries have followed the example we set almost 20 years ago in this House.

Today's debate has been helpful in enhancing our understanding of what are not only complex and sensitive issues but practical issues for people in terms of how they live their lives, as stated by Deputy Lyons, be that the people depicted in Brian Merriman's play or people living now. It is important that we are aware of this. We all recognise that the lack of legal recognition for transgender people is a significant and long-standing issue. As I said earlier, there is a commitment in the current programme for Government on the part of Fine Gael and the Labour Party to provide legal recognition for transgender persons. I am happy to say this legislation is being progressed.

Formal legal recognition through the issuing of a gender recognition certificate by the Department of Social Protection will mean that a person's acquired gender will be fully recognised by the State for all purposes. This will, I hope, be a hugely significant and positive matter for the people involved. I want to emphasise that during preparation of the legislation the Department of Social Protection engaged in significant additional consultation and research. The views of a range of organisations and individuals who have experience and expertise in this evolving and complex area, including transgender persons and their representative organisations, were sought and considered. The aim of the legislation is a more progressive and dignified process which protects all concerned and ensures the registration process will be robust and constitutionally valid. An inevitable requirement when putting in place legislation is that we respect the Constitution of our State. Obviously, there are remedies with regard to changing to the Constitution, which are outside the remit of this legislation. For example, Members are aware that a referendum on same-sex marriage and marriage equality will be held next year. Assuming the people consent to the recognition of marriage equality in the Constitution, this will contribute to addressing some of the issues raised.

The Bill contains provisions which are significant advances on previous proposals and compare favourably with equivalent legislation in many other countries in Europe. I will come back to this matter later. The provisions with regard to the application and validation process seek to be respectful to all concerned and to be prudent and practical and preserve the integrity of State records. I expect that the legislation, including the committee's report, will be considered at Cabinet shortly. I cannot provide a definitive response today on the various recommendations in the committee's reports but, following Government consideration, the general scheme of the Bill, with any agreed revisions, will be referred to the Office of the Parliamentary Council for drafting with a view to publication of the legislation later this year. I would like to see this important and ground-breaking legislation enacted as soon as possible thereafter. Reference was made to Dr. Lydia Foy. I am conscious that she has had a sustained interest in this matter over a lengthy period. I wish to see this legislation enacted.

A number of specific questions were raised, to which I will now respond. Deputy O'Dea and others raised issues around terminology and the evolution of language in this respect. To encourage debate on this issue when I became Minister, I published the report of the gender recognition advisory group. Notwithstanding all of the good work done in the context of that report, it reflects the language of a somewhat earlier era. In regard to the most appropriate term to be used in the legislation, Deputy O'Dea commented on "acquired" and "preferred". I am aware that there is ongoing development in language use. What is most appropriate in the legislation will be considered as part of the drafting process. As rightly pointed out by Deputy O'Dea, in terms of wider European legislation, it is generally necessary for draftspersons to have regard to the need for language that is effective and robust. We can come back to this issue during debate on the Bill.

On the equality issues raised, the general scheme of the Bill as approved by Government on 16 July 2013 does not include specific provisions with regard to equality for transgender people, as the prohibition of discrimination on the grounds of gender is already interpreted in accordance with EU law as also prohibiting discrimination against transgender persons. In response to Deputy Crowe's references in this regard, they are considered under gender grounds in accordance with EU and Irish law.

Questions were asked about physicians and doctors. Following consultation with the HSE, the Royal College of Surgeons in Ireland and the Irish Medical Organisation, the term being considered for inclusion in the legislation is "primary treating medical practitioner". The intention is that this term will be defined in legislation which will require that the medical practitioner be registered by the Medical Council on a specialist register under section 47 of the Medical Practitioners Act 2007. Again, this is subject to advice from the Office of the Parliamentary Counsel. The idea is that the medical consultant involved in the patient's care will be the person providing the letter. This is most likely, as I said, to be an endocrinologist or a psychiatrist, or a paediatrician in the case of a younger person. The legislation will also require that the person be practising in the field of the care and treatment of transgender and intersex persons. There is no reference in the proposed legislation to any surgery or specific treatments. Anybody who has had the opportunity to talk to people involved or people from the transgender community will know that medical practices and treatments are advancing rapidly. The legislation will relate simply to people who are practising in the field of the care and treatment of transgender and intersex persons.

On the requirement for the applicant to be single, there is no easy solution. Some Deputies acknowledged that the choice was either to risk being in breach of the Constitution, by effectively creating a same-sex marriage, or to risk breaching the European Convention on Human Rights by forcing the couple to divorce. There is no quick legal fix that could turn such a marriage into a civil partnership. Article 41.3.2° of the Constitution requires a divorcing couple to live apart for four years. I can understand people will be disappointed about this, but I understand and hope the people will be able to address this issue in a referendum later next year. I hope they will consent to the changes which will clear the way constitutionally to address these particularly sensitive issues.

Let me address the comparisons with other jurisdictions. A lot of research has been done on this matter by the Department. I understand the proposed legislation compares very favourably with legislation in other countries, particularly the United Kingdom, where the Gender Recognition Act 2004 is based on the use of an expert panel and requires evidence of diagnosis. This has been very offensive to people who are transgender or transitioning. A diagnosis of gender identity disorder is now rightly seen as being outdated. The GRAG report, based on extensive consultation, shows we have moved on from this.

The Netherlands recently updated its legislation, which will come into effect this year. The application process is very similar to that under the Irish legislation. It consists of a combination of self-declaration and validation by a medical professional who is an expert in the field of caring for and treating transgender persons.

I look forward to the legislation being brought forward as early as possible. There is a great deal of legal work to be done by the Office of the Parliamentary Counsel. After that work has been completed, I look forward to appearing in the Dáil as soon as possible. I thank the members of the joint committee and everyone who spoke in the debate.

Deputy Joanna Tuffy

I thank everyone who contributed. I also thank the members of TENI, whom I did not realise were present. I thank them for their contributions throughout the process.

The Minister and her officials have a difficult task ahead in drafting the legislation because it reflects a complex area. Considering that the issue of age has arisen frequently during the debate, I speak personally rather than on behalf of the joint committee in saying the welfare of the child must be paramount and underpin the legislation. The concept is complex and always particular to the child concerned. It is not a matter in respect of which we can provide a simple answer. It is difficult to come up with the legislation, but the important principle relates to the paramountcy of the welfare of the child. Those under 18 years are children.

My second point is on the issue of marriage. Our recommendation is obviously nuanced because we take into account the fact that there are two legal opinions. We recognise in our recommendation that it is unfair on people who are married and have acquired a new gender not to include them in the legislation. On the other hand, we have a Constitution to adhere to. In general, it is very good, but it is not always perfect. We should not have a reference to marriage in the Constitution. The reality is that the concept of the family is much broader than one based on marriage. Unfortunately, the Constitution posits families based on marriage as the primary type of family. That is wrong. However, the provision is in place and it presents a difficulty. As legislators, our duty is to pass laws that are constitutional. As I stated, there are two legal opinions. The task of the Minister is to pass what she believes to be the law that is most constitutional, or the one least likely to fail the test of constitutionality. I wish her well in that task. I again thank everybody who contributed to the debate.

Question put and agreed to.

The Dáil adjourned at 1.10 p.m. until 2 p.m. on Tuesday, 13 May 2014.