The Equality Authority appreciates this opportunity to contribute to the committee's deliberations on how best to promote the dignity, equality and human rights of people who are transgender and intersex. We acknowledge the very significant progress this Bill represents since the initial consultation process began. We pay tribute to the excellent advocacy done on behalf of transgender people by the groups who attended the committee yesterday and also to the Minister and to the Department for listening and implementing many positive changes in this draft Bill.
We encourage the continuation of this process of engagement and listening in order to address the relatively few but none the less crucial matters that if correctly addressed in the final legislation will result in the type of recognition that will benchmark Ireland as an inclusive, respectful society for transgender people. There is a clear, urgent legal imperative for such reform as it is six years since the High Court concluded in the Foy case that Ireland was in breach of its commitment under the European Convention on Human Rights. Gender recognition has been available in the United Kingdom since 2004, a factor that places Ireland in breach of its commitment to ensure that human rights protections in the State are at least equivalent to protections available to people in Northern Ireland.
The Equality Authority has a remit to prevent discrimination and to vindicate rights. People who identify as or who are imputed as transgender or who are intersex typically experience high levels of discrimination. In addition, research has highlighted a high suicide rate and high levels of harassment and violence directed at transgender people in public places. Particular difficulties also arise in accessing employment, health care and leisure facilities. Too many transgender people live in poverty due to increased difficulties in accessing the labour market.
The Equality Authority and its predecessor body, the Employment Equality Agency, have for some decades included the equality rights of transgender and intersex people in the working definition of the gender ground. This approach has been endorsed by the decision of the European Court of Justice in P v. S and Cornwall County Council. The authority has no objection to an amendment explicitly naming transgender as a protected ground under the equality legislation.
In 2004 the Equality Authority highlighted the precarious legal situation of transgender people in its two reports, Transsexualism and Gender Dysphoria and Access to Health Services for Transsexual People. The authority was instrumental in renegotiating a settlement with the State Examinations Commission that led in 2007 to the reissuing of intermediate and leaving certificates to a transgender woman. The commission agreed to alter the certificate so as to reflect the woman's new name and preferred gender. More recently the authority supported the landmark Hannon case concerning the treatment of a transitioning worker. The successful outcome sets a useful guideline for employers to accommodate the needs of their transitioning employees.
I will list the key areas to be considered by the committee for amendment. We welcome the central tenet of the Bill in head No. 6 that a person who wishes to be recognised in his or her preferred gender may make a statutory declaration to that effect. This respects the autonomy of the person and his or her integrity in deciding to seek legal gender recognition. The authority has advised against pathologising transgender people. There is a risk, however, that the requirement that a treating physician must certify that a person has transitioned will introduce a requirement of medical certification in practice. This point is addressed in detail on page eight of our submission. It is respectfully suggested that the presence or absence of such medical certification should not be considered absolutely conclusive where an application is made for legal gender recognition.
On the ground of age, early recognition is very important to the well-being and self-worth of young transgender or intersex people. The general scheme proposes in head No. 5 that applicants for gender recognition be aged 18 or over. Certainly, complex legal issues arise with regard to the recognition of people under the age of 18 but legal norms already used in dealing with this should not be excluded purely because a young person wishes to transition. In law, a person aged 16 or over is competent to make medical and surgical decisions on his or her own behalf without requiring parental consent. It is unclear why the Government has not considered these established mechanisms that would afford young transgender and intersex people the right to access legal gender recognition with, for instance, the consent of a young person's parents or guardians or independently from the age of 16, as is allowed with many other elements of a young person's health and well-being which we recommend. This is of concern in that transition is being excluded from the normal remedies available for young people and may fall foul of the constitutional requirements to respect the autonomy of the family and the rights and duties of parents in respect of their children.
On civil status, the authority's long-standing commitment to equal marriage for consenting adults envisages such situations as now arise in this Bill. The requirements of the heads of the Bill that applicants for legal gender recognition be single is neither necessary nor desirable. In particular, the imposition of the requirement will pose significant hardship on families where a spouse or civil partner wishes to gain legal recognition of the preferred gender.
In its 2010 submission to the gender recognition and advisory group, the authority noted that such approach was not, in fact, legally necessary. The submission noted that the legal validity of a marriage is determined solely by reference to the factors, including the status of the parties present at the date of marriage. It is the gender of each party at the date of marriage that counts in determining the validity of the marriage. Thus, if the spouses were legally male and female, respectively, on the date of their marriage, the marriage, in law, remains a heterosexual marriage, even if one of the parties subsequently transitions to a preferred gender. Prospective legal recognition of a preferred gender would not change the essential fact that the marriage, judged by reference to the factors presented at the time of the marriage, is still, in law, a heterosexual marriage. As such, the concern that gender recognition would convert a heterosexual marriage into a marriage between parties of the same sex is legally unfounded. Many transgender people have been supported on their journeys by their spouses. The Bill requires that at the conclusion of that journey the supportive spouse is then to be presented as the only remaining impediment to the proper gender recognition of the other. This is harsh, unfair and of serious concern. It essentially involves a bartering of rights between the couple, which sets an unnecessary and worrying precedent. Where a couple who are married or in a civil partnership wish to remain together after the transition of a spouse, it may prove impossible for the transgender spouse to truthfully divorce to meet the proposed requirement that applicants be single. The concept of forced divorce has serious human rights concerns and we believe it is legally unnecessary. I defer to Dr. Ryan's recommendations on the validity of marriage and civil status, with which we broadly agree.
In head No. 26, the general scheme proposes to permit transgender and intersex people to be excluded from competitive sport with a view to securing fair competition and the safety of competitors. It is suggested that a more nuanced and individualised approach may be needed to ensure that head No. 26 does not serve to facilitate a blanket ban on the participation of transgender and intersex people in sports. Visibility and role models are vital in educating society and creating a positive environment for transitioning young people. In particular, we suggest that more emphasis may be placed on factors such as the level of hormones in a person's body rather than the simple fact that a person is transgender or intersex. Our previous comments on the age ground and adolescence also have a bearing on this outcome. Transgender people should be allowed full access to the facility of services available exclusively to persons of the preferred gender. In particular, in line with the general principle contained in head No. 9, a person who is transgender or intersex should be treated for all purposes as a person of his or her preferred gender. It is vital, for instance, that transgender and intersex people be entitled to use changing facilities and toilet facilities of the preferred gender. In prisons and Garda holding cells, people who are transgender and intersex should be treated as persons of the preferred gender. The authority would welcome an amendment to the Bill to ensure that this entitlement is specifically and expressly granted and recognised.
The Equality Authority has commissioned a detailed report on this important Bill which we hope to make available to the committee in a number of weeks. I thank the committee for this opportunity to discuss our submission.