I thank the committee for the opportunity to attend to brief members on the general scheme of the Gender Recognition Bill 2013. This is a very important Bill to provide for the solemn recognition by the State of a person's acquired gender for all purposes. As members will note from my presentation, the provisions in the Bill contain some very significant advances on previous proposals, particularly in regard to the validation process. In summary, the provisions in the Bill seek to be respectful to all concerned, to be prudent, to be practical and to preserve the integrity of State records. This presentation will set out the background to the preparation of the legislation, outline the purpose of the Bill and summarise its provisions.
With regard to the background, 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 is a commitment in the programme for Government that transgender people will be provided with legal recognition. In July 2011, the report of GRAG was published and the Government decided legislation would be drafted in line with its recommendations. Since then, and building on this report, the Department of Social Protection engaged in a significant amount of consultation and research during the preparation of the legislation. We have sought and considered the views of a range of organisations and individuals with experience and expertise in this area. These include transgender persons and their representative organisations.
While the Bill is in keeping with the general structure of the GRAG recommendations, it differs in a number of key aspects, which I will explain.
Following Government approval, the general scheme of the Bill was published in 17 July 2013. This legislation will give legal recognition to the acquired gender of transgender persons. Formal legal recognition, through the issuing of a gender recognition certificate by the Department of Social Protection, will mean that the person's acquired gender will be fully recognised by the State for all purposes, including the right to marry or to enter a civil partnership in the acquired gender and the right to a new birth certificate. The legislation will allow for applications from people with intersex conditions should they wish to apply.
I will outline the main effects of the legislation for those wishing to have their gender recognised. The Bill will provide for persons aged 18 and over and who are not married or in a civil partnership. The person will be officially legally recognised by the State as being of the acquired 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.
I will now summarise the main provisions of the Bill. Heads 1 to 3 are standard provisions dealing with the Short Title of the Act, commencement orders, definitions of terms used in the Act and the power of the Minister to make regulations and to give effect to the Act. Head 4 provides that the Minister for Social Protection shall be the decision-making authority in regard to granting approval for gender recognition certificates. The Minister shall issue the certificate once the application meets all the qualification requirements.
Head 5 sets out the conditions that a person is required to meet in order to qualify for a gender recognition certificate. The person must meet one of three criteria: the birth must be registered in Ireland; one must have become an Irish citizen by having one's birth registered in the foreign births register maintained by the Minister for Foreign Affairs and Trade; and one must be ordinarily resident in the State. One must also be at least 18 years of age on the date of the application and must not be in an existing marriage or civil partnership. In addition, one must meet the evidential requirements set out in head 6.
In respect of the age limit, the Government, following consideration, decided that a minimum age of 18 should apply. This is based on the recommendations made in the GRAG report. The requirement that applicants for gender recognition must not be in an existing marriage or civil partnership was also considered by the Government.
The requirement that applicants for gender recognition must not be in an existing marriage or civil partnership was also considered by Government and it was decided that due to the constitutional context, this current legislation could apply only to persons not in an existing marriage or civil partnership.
Head 6 addresses the evidence which must be supplied by the applicant to demonstrate that he or she meets the qualification requirements. This includes a certificate from the register of births or from the foreign births register, proof of ordinary residence in Ireland and proof of identity in a form to be prescribed by the Minister. The GRAG report had proposed that the person seeking recognition of his or her required gender would be required to make an application to a specially established expert panel, or gender recognition panel, which would examine the evidence and make a decision on each application. Even in the couple of years since that report was published, thinking has developed, as have health care and related supports. Real concerns were expressed by transgender people and others about the role of an expert panel in validating applications. The Government has now decided that a panel will not be required. Instead, there will be a declaration and validation process administered by the Department of Social Protection. The aim is for a more progressive and dignified process which protects all concerned and ensures that the registration process will be robust. It will be based on a statutory declaration to the Department by the person that he or she intends 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. This letter will be short, in a standard format and will simply certify that the person is transitioning or has transitioned to the new gender. The legislation will specify the type of medical practitioner providing the supporting letter. He or she will be required to be registered on a specialist register maintained by the Medical Council and I envisage that the specialties specified will be endocrinologists, psychiatrists and paediatricians. The legislation will also require that the medical practitioner is practising in the field of care and treatment of transgender and intersex people. Under this new approach the application process will not require details of a person's 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 transition. These are both significant changes to the original recommendations.
The GRAG report stated that the position of intersex people needed more research and was beyond the scope of the medical expertise available to it. Therefore, it did not make any recommendation on the inclusion of intersex persons in this legislation. The initial intention of the process, to include a panel and a medical diagnosis of gender identity disorder, known as GID, which no longer applies, would not have facilitated the inclusion of intersex persons. However, the new model proposed in the general scheme of self declaration plus validation by a medical practitioner practising in the field would facilitate intersex persons being included under the scope of the legislation and allow them, if they wish, to apply to be recognised in the appropriate gender.
Head 7 deals with applications from persons who have already had their acquired gender recognised in another jurisdiction. Head 8 provides for the issuing of a gender recognition certificate by the Minister for Social Protection once the applicant has met the qualifying conditions. Head 9 deals with the effects of gender recognition and provides for the fundamental principle of the legislation, which is that once a gender recognition certificate is issued to a person, the person's acquired gender is recognised. Heads 10 to 16 deal with the establishment of the gender recognition register and the role of the registrar general in the process. The register's purpose is to facilitate new birth registrations of persons who have been issued with a gender recognition certificate. The register will not be open to public inspection or search. It is envisaged that the process will operate as follows: the applicant applies for a gender recognition certificate and, if successful, will be notified accordingly by the Department of Social Protection. The person will also be advised that the general register office will be in contact regarding the registration in the gender recognition register and the issuing of a new birth certificate. In order to facilitate this, a copy of the gender recognition certificate and the required particulars for the registration shall be sent to the registrar general. As part of the process of the registration in the gender recognition register, a link will be made between that entry and the corresponding original entry in the register of births or adopted children. This link shall be maintained in a confidential manner. Copies, certified copies or certified extracts of entries in the gender recognition register shall not be identifiable as being from that register as opposed to being from the register of births or adopted children. However, it should be noted that absolute confidentiality in relation to the register is not feasible as birth certificates are public records. While it would be possible to have some system for blocking the issuing of the original birth or adoption certificates, and this is provided for in the heads of the Bill ---