Gender Recognition Bill 2014 [Seanad]: Second Stage

Minister of State at the Department of Social Protection (Deputy Kevin Humphreys)

I move: "That the Bill be now read a Second Time."

I apologise for the confusion earlier. I thought the previous business would take a little longer. I am delighted to have an opportunity to introduce this important legislation in the Dáil. While the number of people directly affected by the Gender Recognition Bill 2014 will be relatively small, this legislation carries a deep significance for those who will, for the first time, have their preferred gender formally recognised by the State for all purposes. This significance extends to their families, friends and communities. The Tánaiste and I are proud to introduce this legislation and thereby progress the civil rights of transgender people. The formal recognition of the identity of transgender people is a mark of the growing maturity of Irish society. It is an important element of the programme for social reform that is being progressed by the Government.

All Deputies will be aware that the lack of legal recognition for transgender people is a long-standing issue. The High Court declared in 2008 in respect of the case brought by Dr. Lydia Foy 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 preferred gender of transgender people. It is appropriate that I pay formal tribute to Dr. Foy, whose unstinting efforts over many years played a crucial part in bringing us to this point. The programme for Government included a commitment that transgender people would be provided with legal recognition. The publication in July 2011 of the report of the transgender recognition advice group was a significant milestone. Things have moved very far forward since then, as reflected in the Bill before the House today. Following the publication of the advisory group's report, my Department engaged in significant additional consultation and research. The views of a range of organisations and individuals that have experience and expertise in this evolving and complex area were sought and considered.

Since I was appointed Minister of State at the Department of Social Protection last year, I have been privileged to meet members of the transgender community, as well as a range of organisations and public representatives with a particular interest in this issue, on many occasions. In July 2013, the Government approved the publication of the general scheme of the Bill and its referral for pre-legislative scrutiny to the Joint Committee on Education and Social Protection. Officials from my Department, representative groups and legal and medical experts participated in hearings held by the committee in October 2013. The committee's report was published in January 2014. The report and the contributions made at the committee hearings have made a valuable contribution to the overall understanding of the complex issues that are being addressed in this legislation. I thank Deputy Ó Snodaigh, who is present in the Chamber, and Senator Zappone, both of whom introduced Private Members' Bills in this regard that were helpful in progressing matters. They have worked very hard in this area. They have met groups similar to those I have met. Following the joint committee's report, the Tánaiste brought the matter back to the Cabinet and the revised general scheme of the Bill was published in June of last year.

The fundamental concept underlying this legislation is relatively simple. The preferred gender of a person who has been issued with a gender recognition certificate by the Department of Social Protection will be formally and legally recognised for all purposes, including dealings with the State, public bodies and civil and commercial society. For many transgender people, their birth certificate is the last remaining personal document that does not show their preferred gender. This legislation allows them to obtain a birth certificate showing their preferred gender. The person whose preferred 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. All rights, responsibilities and consequences of actions by the person in their original gender prior to the date of recognition will remain unaffected.

The Bill uses the term "preferred gender", in line with a recommendation made by the Joint Committee on Education and Social Protection. This approach facilitates applications for gender recognition from people with intersex conditions. The application process for a gender recognition certificate will consist of a statutory declaration by the applicant that they intend to live permanently in their preferred gender and a supporting statement by their primary treating medical practitioner that they have transitioned or is transitioning to their preferred gender. The physician must be a person who has a particular expertise in the care pathway for transgender people. This is the case for both endocrinologists and psychiatrists, subject to their particular practice. The process will not require details of care, such as medical history or confirmation of a diagnosis. The person will not have to confirm that they have been living in their preferred gender for a specific period of time prior to their application. This is a much more progressive, less onerous and less invasive approach than that adopted in many other countries in the EU and elsewhere. I hope it will be recognised as such.

As Deputies will be aware, the Bill requires that an applicant for gender recognition is single, pending the outcome of the referendum on same-sex marriage that is due to take place in May of this year. I accept that this is not ideal. The existing constitutional prohibition on same-sex marriage is a blockage in this respect. I am happy to confirm that my colleague, the Minister for Justice and Equality, has agreed that the marriage Bill, which will be enacted if the referendum is passed by the people, will include provisions to amend this legislation to remove the requirement to be single.

The joint committee recommended that the minimum age for gender recognition be reduced from 18 to 16. The Bill provides for applications from 16 and 17 year olds, but with significant safeguards attached which seek to balance the rights of applicants with the need to protect their interests at a vulnerable age. In particular, it will be necessary to secure a family Circuit Court order in any such cases, exempting the applicant from the standard requirement of a minimum age of 18 for gender recognition.

This Bill was introduced in the Seanad in January. I thank Senators for their extensive engagement, which ensured the key features of the legislation were thoroughly debated. Several amendments were passed on Report Stage in the Seanad. I strongly believe it is best practice to have a review process for new and significant legislation such as this. It was always my intention that there would be a review of the legislation. I was happy to bring forward a Government amendment to make this review statutory. Section 7 of the Bill now provides for a review of the operation of the Act to be carried out not later than two years following the coming into operation of the Act. It is critical that the impact and effectiveness of this important legislation is carefully assessed over time. The phrase "based on a medical evaluation" was removed from several sections of the Bill to make it absolutely clear that there is no requirement in the application process for a medical practitioner to carry out a specific medical evaluation such as a physical examination of an applicant for a gender recognition certificate.

I will now summarise the main provisions of the Bill. Sections 1 to 4 are standard provisions in relation to the Title, the commencement process, the definition of terms, the power to make regulations and the costs of administration. Section 5 sets out how documents under the Act are to be issued. Section 6 provides that records of decisions made by the Minister under the Act will be maintained and that an annual report on the operation of the Act shall be laid before the Oireachtas.

Section 7 provides for a review of the operation of the Bill to be carried out not later than two years following the coming into operation of the legislation and that 12 months after the commencement of the review the Minister will report to the Houses of the Oireachtas. It is important to carry out a review and that the 12 month period for review is set out in the legislation.

Section 8 provides that the Minister for Social Protection shall be the decision-making authority on the issue of gender recognition certificates.

Section 9 sets out the conditions a person is required to meet to be eligible to apply for a gender recognition certificate. An applicant must be at least 18 years of age on the date of application, unless he or she meets the requirements of section 12, and he or she must not be in an existing marriage or civil partnership. In addition, he or she must meet the evidential requirements set out in section 10.

Section 10 addresses the evidence on qualification requirements. It includes proof of identity and either a certificate from the relevant register of births or proof of ordinary residence in Ireland. Also required is a statutory declaration stating the person is not in a marriage or a civil partnership, has a settled and solemn intention of living in the preferred gender for the rest of his or her life, understands the consequences of the application and makes the application of his or her own free will. The application must also be accompanied by a statement from the applicant's primary treating medical practitioner that confirms that the applicant has transitioned or is transitioning to his or her preferred gender and that he or she is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in the preferred gender.

Section 11 deals with applications from persons who have already had their preferred gender recognised in another jurisdiction. These applicants will have to show to the satisfaction of the Minister that the requirements which led to his or her preferred gender being recognised in the other jurisdiction are at least equivalent to those set out in the Bill.

Section 12 addresses applications for a gender recognition certificate by persons aged 16 and 17 years.

Section 13 provides that the gender recognition certificate shall contain the person's forename and surname as specified by the applicant in his or her application, his or her date of birth and preferred gender. The Minister shall notify the Registrar General or the Adoption Authority of Ireland, as appropriate, that the certificate has issued and will provide them with a copy of the gender recognition certificate, a copy of the person's birth certificate and his or her name and contact details.

Section 14 provides for the revocation by the Minister of a gender recognition certificate if information or facts come to the Minister's notice that would have led to a refusal of the application. The person concerned will have the right to appeal the decision under the provisions of section 17. Where a gender recognition certificate is revoked under this section, it will always be deemed to have been void and not in effect.

Section 15 provides for the revocation by the Minister of a gender recognition certificate in the event that a person applies to revert to his or her original gender and provides satisfactory evidence to support the application. If the application to revoke is declined, the person concerned will be informed of his or her right to appeal. Where a gender recognition certificate is revoked under this section, the rights and liabilities of the person concerned in his or her preferred gender prior to the date of revocation will not be affected.

Section 16 provides for a situation where a person applies to the Minister seeking to have a clerical error or an error of fact in the content of a gender recognition certificate corrected.

Section 17 provides for appeals in respect of gender recognition certificates.

Section 18 provides for the fundamental principle that, once a gender recognition certificate is issued to a person, his or her gender becomes the preferred gender for all purposes. The effect of legal recognition is not retrospective but shall be only from the date specified on the gender recognition certificate.

Section 19 provides that a change in a person's recognised gender under the Bill will not affect the responsibilities of that person as a parent of a child born prior to the issue of a gender recognition certificate.

Section 20 provides that where a person has had his or her preferred gender recognised, it does not affect the distribution of property under a will or other instrument made before the day on which the Bill comes into force. For wills or other instruments made after that day, the general principle of the Bill will apply, for example, if a will refers to the eldest daughter and a person who was previously a son becomes the eldest daughter following recognition in the preferred gender, that person will inherit as the eldest daughter.

Section 21 relieves trustees or personal representatives of any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he or she is responsible for distributing.

Section 22 makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the preferred gender. If, for example, an instrument governs succession by reference to the eldest daughter and there is an older brother whose gender becomes female under the Bill, the person who was previously the eldest daughter may cease to enjoy that position. It allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court.

A number of sexual offences in this jurisdiction are gender specific. Section 23 provides that where criminal liability would arise but for the fact that a person, either the victim or the perpetrator, has been issued with a gender recognition certificate, such liability will continue notwithstanding the gender change. A person whose preferred gender has been recognised may still be physically capable of committing a sexual offence or being the victim of a sexual offence associated with the opposite gender.

Section 24 amends section 2 of the Civil Registration Act 2004 to take account of the provisions of the Gender Recognition Bill 2015.

Sections 25 and 26 provide for the establishment and maintenance by the Registrar General of the register of gender recognition.

Section 27 inserts a new Part 3A into the Civil Registration Act 2004. The new provisions of Part 3A are as follows. Section 30A provides definitions of terms used in the Act.

Section 30B provides that a person to whom the Minister has issued a gender recognition certificate and for whom there is an entry in the register of births or the adopted children register may apply to the Registrar General to be entered on the register of gender recognition. The entry will list the person's name, surname and preferred gender as stated on the gender recognition certificate, together with the other particulars contained in the person's original entry in the register of births or the adopted children register, as appropriate.

Section 30C provides that the Registrar General will keep an index to the register which will not be open to public inspection or search save by the person to whom the gender recognition certificate has been issued or, if that person is deceased, the surviving next of kin.

Section 30D provides that the Registrar General shall also maintain a confidential index that will link the entry in the gender recognition register with the corresponding original entry in the register of births or the adopted children register.

Section 30E provides that where a gender recognition certificate is revoked, the Registrar General will, in turn, cancel the relevant entry in the register of gender recognition. The section also provides that where changes are made to an entry in the register of births or the adopted children register for which there is a corresponding entry in the register of gender recognition, the latter will also be changed accordingly.

Section 28 of the Bill provides that the register of gender recognition is not subject to the provisions of section 61 of the Civil Registration Act. This effectively excludes all persons other than the holder of the gender recognition certificate from being able to draw a birth certificate from the register of gender recognition.

Section 29 amends section 63 of the Civil Registration Act to allow for the amendment of errors in the register of gender recognition.

Section 30 amends the First Schedule to the Civil Registration Act 2004 to set out what will be entered in respect of an entry in the register of gender recognition.

Section 31 provides for amendments to the Irish Nationality and Citizenship Act 1956 which will allow for the establishment and maintenance of a register of gender recognition of foreign births by the Department of Foreign Affairs and Trade.

Sections 32 to 35, inclusive, provide for amendments to the Adoption Act 2010 with regard to the establishment and maintenance of a register of gender recognition of intercountry adoptions by the Adoption Authority of Ireland.

Section 36 makes it an offence under the Bill knowingly to provide false information in an application for a gender recognition certificate or to fail to surrender a gender recognition certificate which has been revoked by the Minister under section 14 of the Bill.

Section 37 provides that cases relating to applications from 16 or 17 year olds for gender recognition certificates under section 12 or appeals against decisions by the Minister under section 17 may be heard by a judge of the Circuit Court in the area in which the applicant concerned ordinarily resides.

Section 38 provides for an amendment to the Passports Act 2008 which provides that where a person is applying for a passport in his or her preferred gender, the gender recognition certificate will be recognised for this purpose. The Passports Act will continue to provide for the issuing of passports to transgender persons who are unable to apply for gender recognition certificates on the grounds that they are not single.

As already stated, this legislation is long overdue. Getting to this point has been a difficult and challenging undertaking due to the complex and sensitive issues involved. I again thank all those who contributed to the process.

Earlier, I mentioned the two-year review provision that has been inserted into the Bill. This provision states that, not later than 12 months after the commencement of the review, the Minister will make a report to each House of the Oireachtas of the findings made during the review and of the conclusions drawn from those findings. I strongly believe that this Bill represents a very progressive approach towards meeting the obligations of the State to the needs of transgender persons. The Bill has at its core a genuine commitment on the part of the Government to enable transgender persons to be recognised for all purposes in their preferred gender. This recognition is a momentous event in a person's life and it is absolutely essential that it is facilitated in a serious manner that maintains the integrity of the registration process.

The provisions in the Bill contain some very significant advances on previous proposals and, as I said, compare very favourably with the equivalent legislation in many other countries in Europe. This is legislation which has been needed for a long time. Members of the transgender community naturally wish to avail of the opportunity to have their preferred gender formally recognised as soon as possible. I look forward to an informed debate and to hearing the views of Deputies on the measures contained in the Bill.

Deputy Willie O'Dea

The Minister of State said that he wants to thank the people who have brought us to this point. I wish to be associated with his comments in that regard, which relate to groups such as Transgender Equality Network Ireland, TENI, and LGBT Noise, individuals such as Michael Farrell, organisations such as Amnesty International, the former Equality Authority and the great heroine of this particular saga, Dr. Lydia Foy who, by her persistence, courage and tenacity, has earned the undying gratitude of the transgender community.

The Minister of State also indicated that we are late in introducing this Bill, which is true. Being late might normally be a matter for condemnation but there is always a silver lining. The big advantage of being late in introducing legislation of this nature is that it affords one the opportunity to assess how other countries have dealt with the problem. One can consider what the authorities elsewhere proposed, what they proceeded with and the changes they are being obliged to make in the light of experience. Of course, experience is a great teacher. When I eventually emerged from college following many years of study, I discovered that I learned more in six months practising in what was then Price Waterhouse than I had during my entire time in third level education.

We have the benefit of the international experience to which I refer but, unfortunately, we do not seem to have taken it on board. The original proposals from the review group were a bit of a joke, quite frankly. We have come a long way from those proposals, thank goodness. However, we have deliberately placed ourselves behind some of the legislative advances that have been made in light of the experience elsewhere in the world. We have positioned ourselves between the original proposals, which were completely deficient, and what has been done by the authorities in more advanced countries in light of experience gained. The Bill is a form of Irish solution to an Irish problem. We certainly cannot state that it is based on international best practice. The Minister of State need not take my word for this, he can take that of Dr. Michael O'Flaherty, professor of human rights at University College Galway, who has done a great deal of work in this area and who is an acknowledged expert in the field. Writing in The Irish Times on 10 February 2015, Dr. O'Flaherty, stated:

The Gender Recognition Bill 2014, currently before the Oireachtas, is a very belated legislative attempt by the State to comply with the findings of the European Court of Human Rights in the case taken by Dr Lydia Foy. It is no more than that; it is certainly not progressive. Instead, it draws on the outdated legislation of some states to establish for Ireland a gender recognition framework that is disrespectful to transgender persons, out of line with international good practice and at odds with the country’s international human rights commitments. It will be an avoidable shame if this Bill is adopted without the benefit of significant amendment.

Who are we to argue with these, the views of a man who, as already stated, is an acknowledged expert in the field?

My party will be seeking to amend the Bill on Committee Stage. I have been informed in the past few minutes that Committee Stage will be taken next Wednesday. Given that Second Stage is being taken today, we will be obliged to rush in order to submit our amendments by this evening. This is happening despite a commitment in the programme for Government to the effect that Committee Stage debates relating to all legislation would not take place until a fortnight after Second Stage concluded in order to give people an opportunity to reflect. I have questioned the Taoiseach about this commitment for the past four years and he has made promises in respect of it during that entire period. However, there is still no sign of it being honoured.

I am amazed with regard to the lack of consultation with the intersex community when the Bill was in preparation. Apparently, no consideration whatsoever has been given to providing to non-binary transgender people the same degree of recognition that has been afforded to their counterparts in Australia, India, Nepal, Thailand, the United Kingdom and Germany. In view of the lack of consultation to which I refer, it appears that intersex people have been grouped with transgender people in a Bill exclusively drafted to deal with the latter. A kind of one-size-fits-all approach has been adopted and this is made clear by the terminology used in the Bill, which refers to transgender people but not to intersex people. In my view, the Bill does not properly address the needs of intersex people and nor is it designed to do so.

I acknowledge that the Minister for Social Protection amended the Bill in the Seanad. Previously, one of the requirements relating to applying for a gender recognition certificate involved obtaining a professional medical opinion based on a medical evaluation. I accept that the phrase "based on a medical evaluation" has been removed from the legislation but I must question whether this will make a great deal of difference in practice. The intention behind removing the words in question was to inform the members of the medical profession that they need not conduct formal physical or mental examinations. That is the signal being communicated to those to whom I refer but there is nothing in the legislation which provides that they cannot do that if that is their wish. The legislation refers to the need to produce a certificate to the effect that in the professional medical opinion of an applicant’s primary treating medical practitioner, that is the family doctor who knows you and not just any doctor, said applicant has transitioned or is transitioning to his or her preferred gender. The medical practitioner must also state that, in his or her opinion, the applicant fully understands the consequences of his or her decision.

Doctors obviously differ in their opinions. I think I can say, without insulting the members of the medical profession, that the vast majority of family doctors in this country probably have very little knowledge of transgender issues. What is going to be required of an applicant in order for a medical opinion to be provided will vary from doctor to doctor. Some practitioners may take a very conservative approach and others may insist on carrying out an examination.

There is nothing in the legislation to prevent this from happening, despite the deletion of those words during the Seanad debate. Some doctors, thankfully a small minority, were at one time prepared to sign medical certificates for people willy nilly. Patients could tell their doctor they had a bad back and they would get a certificate granting them so many days of leave. If it is envisaged that doctors will behave in that way, why include that medical requirement at all? People's rights will depend on the individual whim of their family doctor. It was previously proposed that gender recognition would be a matter of self-determination by the individual concerned. We have ignored the opportunity to provide for self-determination. We will try again to introduce such a provision on Committee Stage but the Government appears to have set its face against it. We have ignored the opportunity to provide for that, as other countries are doing, and we are insisting on adopting a paternalistic approach. The Bill provides that the medical practitioner must be satisfied the applicant fully understands the consequences of what he or she is doing. In other words, the medical practitioner is supposed to be protecting the applicant against him or herself. Doctors differ on these matters. In the Seanad, the Tánaiste and Minister for Social Protection was clear that there is no requirement for a definitive confirmation of a diagnosis or any kind of medical examination. That is a matter for the individual doctor, however. That is how the legislation is written.

Countries like Argentina and Denmark have allowed for self-determination. Malta, which is hardly an outstanding example of a democratic liberal democracy, is also proceeding in that direction. What has happened in those countries? Has the sky fallen in? Have their national debts doubled suddenly? Have they been reduced to a wasteland? No, what has happened is that vulnerable young people can now benefit from legislation which will in many cases alleviate their suffering during the period between when they realise they are living in the wrong gender and when they can get their gender officially recognised. Even that much maligned organisation, the HSE, which is hardly a bastion of liberalism, recognises that self-determination is the appropriate approach. I cannot for the life of me understand why the Government chose to ignore what other countries have done and what its own chief adviser in these matters, the HSE, recommends. The requirement for a professional medical examination seems to stigmatise people who are gender transitioning because it implies that such people need a third party to tell them who they are. Surely the individuals themselves are best placed to decide that.

The Bill makes provision for individuals aged between 16 years and 18 years. Initially the minimum age at which one could transition was 18 years but that has been reduced in certain restricted circumstances to 16 years. While I welcome any advance in this area, the provisions in the Bill put significant obstacles in the way of 16 to 18 year olds. For example, an individual aged between 16 years and 18 years who wants to transition must provide proof of identity, proof of birth, a statutory declaration, a certificate from his or her own medical practitioner, parental consent and an order from the Circuit Court. In addition to all of the other documentation, the order from the Circuit Court will only be made on foot of a certificate from an endocrinologist or psychiatrist. I have a lot of acquaintances in this country but I do not think I am acquainted with any endocrinologist. I must ask the 16 year old members of my extended family how many endocrinologists they socialise with. I do not have to elaborate on what a visit to a psychiatrist might entail. One goes to a psychiatrist to see if one is right in the head and, therefore, knows fully what one is doing when transitioning. This is insulting, condescending and paternalistic, and it should be withdrawn. If the court has to make the decision at the end of the day, why are these hurdles put in an individual's way? In many cases these hurdles will be unsurmountable for those aged between 16 and 18 years.

Those under the age of 16 years are left in limbo. In many cases, people recognise the fact that they belong to a different gender at a very young age. In these cases, individual's experiences between the point where he or she realises he or she is the wrong gender and turning 16 years, or 18 years as will usually be the case, can be very difficult and potentially leave lasting scars. I will not refer to particular cases but the Minister of State, Deputy Kevin Humphreys, knows what I am speaking about. Why should somebody who has already transitioned have to wait until turning 16 years or, more likely, 18 years before the State recognises his or her true identity? It is paternalistic and condescending. It is not as if every six or seven year old in the country is going to rush to a registrar to get a gender transition certificate. Surely that is a matter their parents will take up, and it is certainly not something that would be done lightly. People will not take this step unless they genuinely feel they are in a different gender.

A recent study in the UK revealed that in only 4% of cases individuals did not realise they belonged to a different gender until they turned 18 years. In 76% of cases, they were aware before they left primary school. Countries which have minimum age requirements are already re-examining their laws. There is no minimum age requirement in Argentina but the sky has not fallen in that country. Young intersex or transgender people who come to the realisation at a very young age that they are in the wrong gender are vulnerable and voiceless. If the Government accepts the amendment we will be introducing next Wednesday to allow self-determination at any age, with the consent of the parent if the individual is under the age of 18 years, it would not damage the country or undermine its economy and social structure. It would simply be helping vulnerable young people to have a better life.

The marriage bar has also been brought to the Government's attention. A happily married person who wishes to transition is currently required to divorce. This is bizarre in a country which goes to such great lengths to protect and enhance marriage that it is difficult to get a divorce. I recognise that if the same sex marriage referendum, which we support, is passed, several amendments will need to be made to this Bill. What reassurance can the Minister of State give in this regard?

While we cannot contemplate the outcome of the referendum, can the Minister of State give some reassurance today that the matter will be dealt with immediately? That could be done, for example, by putting a sunset clause in the legislation, providing that forced divorce will no longer be applicable in the event of the referendum being passed or by confirming that the Department of Justice and Equality is already drafting legislation to provide for these things. It would be obscene if the same-sex referendum was passed but transgender people were left indefinitely in limbo. Those of us who have served in government know how legislation is prioritised and the choke points and pressures that exist, particularly in an election year. We are into an election year now and at minimum the transgender community needs reassurance on that.

There are a number of other provisions in the legislation, debate on which would be more suited to Committee Stage. For example, there is a provision that a person should be ordinarily resident in the State in respect of which concerns have been expressed regarding the position of asylum seekers. Section 10 refers to proof of identity, but how will proof of identity be determined? Will it be a matter to be worked out in regulations setting out the detail on how some of these procedures will apply? There is also a reference to people who have already transitioned in another jurisdiction. If they want to transition here, they must satisfy the authorities that the requirements under the law of the country where the transition originally occurred are at least equivalent to our law. We have had that before in relation to extradition where the alleged crime must correspond to some crime here before one can be extradited. That is a rough comparison. It proved a very difficult thing to establish in many cases. There is a whole body of judgments of the High Court and Supreme Court which demonstrate that while it may look so on the surface, this is not a simple matter at all. We will pursue it on Committee Stage to see if what the Government has in mind can be more fully flushed out. Section 11 deals with the exceptional situation where a 16 to 18 year old cannot obtain his or her parents' or guardians' consent. The conditions set out are quite restrictive in this regard, which is, again, something we will have to look at on Committee Stage.

As anyone who comes from the country knows, devolution of property, wills, intestacy, etc., are never simple or straightforward matters. The devolution provisions in the legislation are vague. For example, trustees can sell to a bona fide purchaser without notice without having to make any inquiries themselves in advance. That is a recipe for much litigation down the road. I am concerned about the provision in section 22 that a disappointed potential beneficiary who stands to lose his or her entitlement because of a gender transition must apply to the High Court. If there is one profession in the country that does not undervalue itself, it is the legal profession. An estate may often consist of only a suburban house, the entire value of which can be swallowed up in High Court proceedings. Normally, the type of court in which one takes a case depends on the valuation of the property. I am at a loss as to why that cannot apply here, but it is something we will tease out on Committee Stage.

I do not want to be churlish. Obviously, we want the legislation to go through. While I do not propose to oppose the Second Reading of the Bill, we want substantial amendments to be made. I regret that we do not have a bit more time to think out the format of the amendments as the Government has not met its commitment to leave a fortnight between Second and Committee Stages. It is not too late. We can still amend the legislation. We have a unique opportunity to enact inclusive, forward-thinking legislation. Why stick ourselves in the middle and follow the example of those who have already had to change their legislation or will shortly do so? It makes no sense. I hope the Minister of State will indicate when he is replying to the debate that the Government is open to substantial amendment of the Bill.

Deputy Aengus Ó Snodaigh

Tá sé i gceist agam mo chuid ama a roinnt leis an Teachta Sandra McLellan. Fáiltím roimh an mBille seo agus fáiltíonn mo pháirtí roimhe freisin in ainneoin go bhfuil fadhbanna móra leis agus go bhfuil gnéithe ann ar chóir athrú. Luaigh an Teachta Ó Deaghaidh a lán de na háiteanna atá fadbhanna agamsa leo. Luaigh mé iad nuair a bhí mé ag déileáil leis an mBille seo sa chéad dul síos ar Chéim an Choiste nuair a bhí na ceannteidil glactha ag an Rialtas, sula raibh sé curtha le chéile i gceart. Cuireadh os comhair an choiste é le haghaidh bhreithniú réamhreachtach. Rinneadh moltaí ansin. Glacadh le roinnt díobh sin agus tháinig athrú ar an bport a bhí ag an Roinn sa chéad dul síos ach níor ghlacadh le cinn eile agus táimid fós gafa le Bille nach bhfuil chomh forásach mar ba chóir dó a bheith.

Ba chóir go mbeimis chun tosaigh ar domhan maidir leis an gceist seo, seachas a bheith chun deiridh. Measaim go bhfuil céim mhór ar aghaidh á thabhairt anseo agus is céim dearfach í i gcoitinne, ach beimid ach teacht ar ais go dtí na fadhbanna móra atá ann agus muid á phlé ar Chéim an Choiste. Aontaím leis an Teachta Ó Deaghaidh go bhfuil gá le níos mó ama idir críoch na céime seo agus Céim an Choiste ionas gur féidir linn déileáil leis an mBille seo ina iomlán agus leasuithe cuí a chur chun cinn. Agus mé á rá sin, fáiltím roimh an gcinneadh atá an tAire Stáit tar éis a dhéanamh: go mbeidh an Rialtas ag déileáil le ceist an cholscartha i mBille teaghlaigh amach anseo. Táim ag impí ar an Aire Stáit go bhfoilseofar an Bille sin chomh luath agus is féidir agus go mbeidh críoch cheart curtha leis an bhfadhb mhór atá sa Bhille faoi láthair.

Gabhaim buíochas leo siúd go léir a thóg seasamh ar cheist aithint inscne go dtí seo. Ní féidir ach ár mbuíochas mar shochaí a ghabháil le daoine ar nós Lydia Foy. Gan an chrógacht a bhí aici, measaim go mbeadh an cheist seo fós ceilte orainne sa Teach seo agus ar an sochaí i gcoitinne. Tá daoine eile ann a rinne sárobair ag impí ormsa, agus ar gach Teachta, déileáil leis an gceist seo i gceart, a leithéid de TENI nó Focus: The Identity Trust sa Tuaisceart. Ach is iad na daoine is tábhachtaí, agus ní chloisimid a nguthanna i gcónaí, ná na daoine atá ag déileáil leis seo as a stuaim féin, atá ag déileáil leis lá i ndiaidh lae, agus a gclanna. Gabhaim buíochas leosan go léir as ucht an obair agus an chabhair a thug siad domsa nuair a bhí mé ag cur reachtaíocht le chéile dhá bhliain ó shin agus ó shin i leith. Déanaim comhghairdeas leo chomh maith go raibh sé de chrógacht acu leanúint leis seo agus go raibh siad in ann an obair dhíograiseach sin a chur isteach sa cheist seo. Níl céimeanna sa dlí acu nó a leithéid ag a lán acu. Tá siad ag teacht toisc a scéalta féin. Bíonn sé sin níos tábhachtaí uaireanta ná go mbeadh céim sa dlí ag duine mar tuigeann siad go díreach conas mar a luífidh an dlí atá le teacht leo amach anseo.

Tosóidh mé ar an mBéarla anois, toisc go bhfuil daoine ag éisteacht nach bhfuil cluasáin acu.

Sinn Féin has consulted widely with transgender individuals who are to be commended. We have come a long way in 22 years since Lydia Foy took the courageous step to demand that the State recognise her identity. I note how both the world and Ireland have changed in many ways and this Bill is welcome legislation. The Minister of State and I might not agree on whether it is the legislation that is required but it is, none the less, a significant step. Sinn Féin will not oppose it and we will tackle the flaws in the legislation - some of which have been stated by other speakers - on Committee Stage. The area is highly technical and it will be difficult to achieve complete agreement but that is what we must aim for. Examples from other countries show how legislation has been moulded to ensure full recognition and that onerous tasks are not demanded of certain citizens just because they are transgender.

The deficiencies in the Bill have been highlighted in the Seanad as well as by myself and others at the pre-legislative stage hearings. Some, but not all, of these deficiencies have been addressed. However, this Bill demonstrates a paternalistic attitude on the part of Departments or the Civil Service or on the part of the Minister of State but I do not believe this is the Minister of State's attitude. I have met the departmental officials and I do not believe that attitude is intentional on their part but there is sometimes a conservative attitude when dealing with legislation and a fear that an opening of a can of worms might result. We need to be more open to change when considering progressive legislation and we need to learn from other jurisdictions. The people themselves are best placed to know their own gender, not the medical practitioners and not us.

I intend to table a series of amendments on Committee Stage to deal with the issue of the role of medical practitioner being included in the legislation. I find it odd that most of the references were removed but they are still central to the legislation. It is unfair in many ways, arbitrary and possibly unworkable and it denies individuals the right to self-determination. In some cases it places insurmountable obstacles in the way of having an individual's gender recognised.

I agree with the analysis of the legislation as expressed by Transgender Equality Network Ireland, TENI, that it pathologises transgender people. In its view, sections in the Bill require the participation of medical practitioners and this feeds into the belief that being transgender means one has a medical illness. The legislation should be able to explain to society that this is neither the case nor the intention and the easiest way of doing so is to remove from the Bill the need for the participation of medical practitioners. It is hugely problematic for the State to bar a person from legal recognition of his or her status if there has not been the participation of a doctor in that process. We need to show empathy towards transgender people and I suggest that this provision should be debated on Committee Stage and removed. A model which takes a pathological approach is completely outdated. At the pre-legislative committee hearings Deputy O'Dea and I outlined examples from other countries which could be followed.

If the Minister of State insists that the participation of a medical practitioner must be included in the Bill, then it must be at the level of general medical practitioner because a GP will have a long-term and ongoing relationship with individual patients. The country does not have the medical infrastructure to do what is expected in this Bill. For example, I do not know any endocrinologist - I cannot say that as Gaeilge but I will try to do so next week - nor do I know that many psychiatrists but I know a number of GPs, some of whom are here in this House, and I know them to be reasonable people. They know their patients, they understand them when they come from help and they may well have known them from birth. My preference is for the references to be deleted entirely.

I intend to tease out further on Committee Stage a point which has not been much discussed as yet. This is the question of how the Bill addresses inter-sex people and the relative lack of knowledge about this gender in the Bill. I refer to recent international cases which demonstrate that we need to be more informed about that peculiar aspect of life. We also need to be aware of the concerns of the many advocates for transgender and inter-sex people that the terminology used in the Bill does not fully capture their needs and may create difficulties. The terminology suggests that inter-sex people have not been particularly or properly considered and consulted in the drafting of the Bill which will not fully address their needs, despite the Minister of State's assurance that the pathway outlined in the Bill will be open to inter-sex people. However, it is the case that sometimes what might be acknowledged is not clear. There is a need for greater clarity in that aspect.

I ask the Minister of State to clarify how the professional opinion of a psychiatrist or an endocrinologist is specifically relevant to gender recognition of inter-sex people because in my view it is not. Given that inter-sex conditions are not diseases and many require no medical intervention, how can this Bill be said to be dealing with their situation? Leaving aside the discussion about the role of psychiatrists, it is clear that some inter-sex people may feel that a designation as male or female on the birth certificate would not accurately reflect the facts of their birth as an inter-sex person and they would prefer the non-binary option for registration of gender. This matter needs to be addressed because there are alternatives and suggestions available from other countries as to how it has been addressed.

Debate adjourned.

Dáil Éireann debate - Thursday, 5 Mar 2015