Amendments Nos. 4 to 6 inclusive, 12, 13, 19 to 21, inclusive, and 29 are related and will be discussed together by agreement. Senator Cullinane was in possession.
Gender Recognition Bill 2014: Committee Stage (Resumed)
I gave way to the Minister of State who very kindly responded to some of the amendments. I am speaking on amendments Nos. 12 and 19, which were tabled by Sinn Féin. They deal with two separate issues. I am not sure why they were grouped because one refers to under-16s.
The purpose of amendment No. 12 is to delete the requirement for a medical input into the Bill. The proposed medical practitioner requirement is in our view unfair, arbitrary and unworkable. Senator Norris was the last to speak on this issue before progress was reported and he made all the arguments I would have made as to why this is unnecessary, intrusive and unfair. Section 9(1)(g) deprives individuals of the right to self-determination and places insurmountable obstacles in the way of legal gender recognition. The inclusion of the medical evaluation condition, which was not mentioned in the heads of the Bill, is a worrying development and may be interpreted as requiring that transgender persons submit to unwanted and unnecessary health care treatments. It is our very clear view that legal recognition must be de-coupled from medical issues. I will not go over the ground already covered by Senator Norris and others on that issue because the points have been well made.
Amendment No. 21 is on a separate issue but the amendments have been grouped for a specific reason. This one deals with the issue for under-16s, which we have already discussed. The rationale for this amendment is to make the process accessible to those under 16. We had a lengthy debate on this issue. I will not go over all of it again.
The criteria in our view are insufficient and do not take into account the transgender child’s needs. The reduction from 18 years to 16 years of the minimum age requirement in the Government’s Bill is a welcome development. The Bill, however, retains the blanket exclusion preventing children under the age of 16 obtaining legal recognition. This represents a failure on the part of the State to acknowledge the existence of trans and intersex young people and the extremely high levels of prejudice they may encounter because of their gender. As children, large aspects of our education, sports and activities are gendered. It is important that trans and intersex young people are able to participate fully in school life and activities. The Gender Recognition Bill 2014 should make provision for children and young people by removing the criterion relating to minimum age that prevents them obtaining legal recognition of their preferred gender. Our preference would be that persons of 16 could apply in their own right and under-16s go through the process outlined in the amendment, with some changes to the process the Government is putting in place for those aged between 16 and 18.
I am absolutely opposed to the inclusion of the medical practitioner because I find it offensive that the person has to be a primary treating endocrinologist or psychiatrist. It should not be included and our amendments seek to remove those elements of the Bill.
If the medical model is to be kept I agree that it should move towards the person’s general practitioner who has the primary duty of care.
I understand the Minister of State will accept Senator Marie Moloney's amendment who is seeking the deletion of the line, "based on a medical evaluation of the applicant". That would be appropriate in this case. Certainly if no diagnosis is required, I believe a psychiatrist or an endocrinologist is not required either.
The Minister of State's gracious acceptance of Senator Marie Moloney's well-worded and carefully thought out amendment makes me wonder whether one has to be a member of the Labour Party to get an amendment accepted.
I have put in a lot of work in the background.
Senator Norris, without interruption, please.
I am well aware the Senator has put in a lot of work on these and related issues and I greatly respect the Senator. I was just making a cheap crack because I felt like doing it. It lightens the atmosphere. I think the medical model is completely discredited. I am not nearly in tears, it is just that I have a chill and that is why my voice is wavering. I remember on the "Gay Byrne Show" crossing swords with a very nice man who was an endocrinologist, Dr. Austin Darragh. He was mad keen to get hold of gallons of pee from the gay community and wanted my help so that I could litmus test them to see if there was something funny about the pee of gay people. I do not know whether he ever succeeded but I just laughed it out of the place. It was absolute nonsense. This morning on RTE on "Today with Sean O'Rourke", Sean O'Rourke did not know which end of him was up. He was talking about an "indoctrinologist" instead of an endocrinologist - there are plenty of them around the place, particularly in The Iona Institute which is absolutely stuffed with indoctrinologists. I am so old - I will end on this - and things are changing so very rapidly.
This morning I was with one of my consultants in St. Vincent's Hospital, a very nice man. He told me that last week they had a visit from a very distinguished international professor, Professor Stan Monstrey, who is openly gay and a world leader on gender reassignment and all kinds of urological problems and situations. He is from the University of Ghent in Holland. The Royal College of Surgeons in Ireland, which in my day was one of the most conservative organisations, welcomed him and gave him a special prize. He absolutely wowed them. That shows how things have changed, and in terms of people's perceptions as well. I will not repeat this but it is no harm to have the odd personal reminiscence. When I was about 11 years old I desperately wanted to be loved by a man and society told me authoritatively that the only way one could be loved by a man was by being a woman. I thought I would do my best to turn into a woman. I did not know how to do it but my friends said, "you are half way there", because I was a pretty useful athlete and I had very good pectoral development which looked like breasts. I went to bed at night saying, "Please God, let me wake up in the morning as a woman", but I did not want to be a woman, not at all. It was the last thing I wanted. In that situation, where there was a complete dearth of knowledge, I am glad I did not get turned into a woman. That would have been awful, absolutely awful. Just to end on another note and on how curious things are.
It is not bad at all being a woman.
It is lovely for the Senator but it would be awful for me. It would be a disastrous liquidation of the assets which from a financial point of view is a complete and utter mistake but I will not go into all of that. We had a most interesting discussion in the surgery this morning. There was another point I wanted to make about gender reassignment, but it has escaped me. I am completely in favour of it now, much more so than I was six months or a year ago, through meeting repeatedly with some of these very remarkable people. I know now what I was going to say.
When I was young 60 years ago, everything was tidied up and edited so that everybody could have a nice, neat, tidy life and nobody would be upset and the neighbours would not talk about somebody wearing a pair of rugby trousers and coming in a skirt or any of this sort of stuff. All of this was tidied away as if it did not exist. To be a citizen of this country one has to be republican, Roman Catholic, heterosexual and white, naturally enough, and there are a few other things. I only hit one of them. I was kind of pink so I got away with being white, but I was not any of the other things and it was quite uncomfortable. Therefore, I am very glad this legislation is being put in place and the Minister of State has graciously accepted an amendment, apparently, which I very much welcome. It shows the constructive way in which he is facing legislation and I promise not to speak quite so much on the following amendments.
The Minister of State gave a fairly comprehensive reply the last time but if he wants to-----
I will be brief. In case Senator David Norris did not notice, we accepted the first amendment from an independent Senator in respect of the review.
Splendid, bravo. I knew the Minister of State was a decent guy.
The first amendment that was accepted was in respect of the review.
I compliment Senator Moloney on her amendment which I will bring forward on Report Stage. Senator Bacik highlighted the fact that there will also be alternative reviews. That will be done.
At this stage I am not proposing to accept the amendments other than to say that providing a birth certificate is a significant and serious step by the State. The purpose of this legislation is to recognise and validate people in their gender. I accept that for most people transitioning to their preferred gender, there is absolutely no doubt about their choice to live the rest of their lives in their preferred gender and they will make a declaration to that effect to the State as part of their application.
There has been absolutely no consultation or involvement with GPs. There would have to be extensive consultation with GPs if we were to go down that road as some Senators said earlier. My concern is that the Bill is robust and not susceptible to attack. That is the reason we have looked carefully at the mechanism to protect minors as envisaged in Articles 42.5 and 40.3 of the Constitution. The flip side of some of the arguments that are made is to try to defend vulnerable minors, for which various statistics have been given. I noted going back over the debate that the percentage given by Dr. O'Shea in the committee was 20%. We should be conscious that there is a group of minors who need to be protected. That is the reason I refer Members to Articles 42.5 and 40.3 of the Constitution. I accept that everything put forward here has been done in good faith to protect the vulnerable. It is important to note again that a review is provided for and will take place within two years. Therefore, there will be an opportunity to review the legislation quite quickly and see how it is working in practice. As this is legislation that is being introduced here for the first time the review period is too long. The review mechanism being looked at is a two-year review. That will provide a speedy opportunity to review the practice of the Bill. It will be for the next Seanad and the next Dáil to review it and the mechanism will be set out in legislation.
This amendment seeks to correct a grammar error.
Amendments Nos. 9 to 11, inclusive, and 14, 27, 28 and 31 are related and may be discussed together, by agreement. Is that agreed? Agreed.
This is about divorce. I will speak on that, if I may.
I move amendment No. 9:
In page 9, to delete line 10.
I welcome the Minister of State, Deputy Kevin Humphreys, and wish him continued success with his portfolio.
I wish to discuss the rationale for amendments Nos. 9 to 11, inclusive, and 14, 27, 28 and 31 which focus on the concept of the single criteria. In a country where divorce was only made legal in 1996, it is ludicrous that it is about to be made compulsory for some. The single criteria which demands that applicants be single if they are to apply for recognition in their preferred gender forces married transgender people to choose between their family and their identity. Imagine being told that the State will not legally recognise one's identity unless one first divorces one's husband or wife. The explanation given for this is that otherwise it would allow for the existence of same sex marriages which are currently not allowed by law in Ireland. This requirement fails to acknowledge that transgender families exist and fails to offer their marriage the constitutional protection offered to every other marriage in Ireland. Under the Bill and in line with Irish divorce law, transgender applicants would have to live separately from their spouse for four years and convince a court that their relationship had broken down in order to secure recognition in their preferred gender. They would be forced to lie.
It has been suggested that the forthcoming referendum on civil marriage equality would effectively resolve this issue. However, the human rights of transgender people to be recognised should not be contingent on the right to marry. The issue was addressed by the German Federal Constitutional Court in 2008. The court maintained that individuals had a right to realise their self-determined identity. It stated that it was unacceptable to force transgender people to choose between their marriage and their right to recognition, and declared that the relevant section of the German transexual Act was unconstitutional. Germany has since accepted the court's decision and has made no attempt to reinstate the single status criteria despite the fact that it does not, as yet, allow same sex marriage.
While this Bill is a step forward, the legislation is still not good enough. Barack Obama was the first American President to use the word "transgender" during his historic State of the Union address on 20 January. His acknowledgment marks the end of a cloak of isolation and silence that the transgender community has been forced to suffer, demonstrating a positive step forward in the fight for the rights and equality of the transgender community. However, we need to keep pushing for the voices of the transgender community to be heard. Laws should be practical and reflect reality. This legislation does not go far enough. Transgender people are some of the most marginalised in this country.
We have an opportunity to introduce legislation that truly protects them.
However, transgender people are saying this legislation will not fully protect them. Why should anybody be forced to choose between their family and human rights? Omitting the criterion to be single is the only way to avoid interfering with the constitutional provision of protecting the family. If the Government chooses to listen to the voices of the transgender community and sees the human rights issue inherent in forced divorce to achieve gender recognition, then there is an opportunity to put Ireland at the forefront of progressive legislation which empowers all of its citizens.
I welcome the Minister of State back to the House and thank him for meeting with some trans people and Senators since. I have spoken about this particular issue, which these amendments cover, for the past several years. It was one of the first issues I spoke about with the excellent civil servants in the Minister of State's Department. I also gave evidence to the committee on social protection and spoke on Second Stage on this issue. I understand the State’s view on this but mine has not changed.
I am not going to use my words this time but those of the trans community, many of whom are again here in the Visitors Gallery, including Victoria Mullen who has spoken eloquently on this aspect of the Bill in the media and in other settings. When we held a civic forum on gender recognition the week before the Bill started in the Seanad, one of the areas we covered was the implication of the single criterion, the forced divorce as it is called. The report of the forum states:
The single criteria, forced divorce, disrespects valid marriages and forces those of us who are married to choose between our family and our right to legal recognition. Ireland’s draconian divorce laws, which require four years living apart, will cause a significant delay in accessing legal recognition. The legal costs of attaining a divorce are prohibitive. Couples that are happily married do not qualify for divorce as we have an amicable relationship. In these cases, the court will not award a divorce and, therefore, the trans spouse will be unable to avail of gender recognition. [This is a key aspect of this issue].
The exclusion of married and civilly partnered trans people will have a detrimental impact. For example there will be an intolerable burden on our families which have not been placed upon any other Irish families. We will experience stress and anguish as we are forced to make an impossible decision between breaking up our families or having the legal right to be recognised. This will seriously disadvantage and hurt our children and spouses both emotionally and financially. [They have gone through so much already]. Those of us that cannot fulfil the single criteria for legal gender recognition will be excluded. This may also mean the roll back of our other documentation, e.g. driver’s license, which could have devastating effects on us.
I will leave it at that.
The Minister of State is a very decent person. I will remind him of the Minister’s Second Stage speech in which it was stated, "I accept this is not ideal but the existing constitutional prohibition on same-sex marriage is a blockage in that respect". I disagree that there is a constitutional prohibition. The late Declan Costello - I think he is the late. Did he die? Nobody knows, so he is of no relevance because nobody remembers him. He has gone from the pages of history. Declan Costello, a very decent man, pointed out in the 1967 constitutional review that the Constitution was wide open to same-sex marriage. He was very concerned about it as he did not like the idea of it at all but he drew attention to it. There is a one-time Attorney General saying this in 1967 about the constitutional prohibition.
In his letter to the Minister for Social Protection in November 2012, the Council of Europe's Commissioner for Human Rights, Nils Muižnieks, stated, "Divorce should not be a necessary condition for gender recognition as it can have quite a disproportionate effect on the right to family life". That is the Council of Europe's Commissioner for Human Rights, a strong voice, not somebody off the street. This is someone with a professional interest in the area.
The United Nations Human Rights Committee in concluding its observations on the Irish periodic report under the Covenant on Civil and Political Rights stated:
[It was] concerned that the new heads of the gender recognition Bill approved by Cabinet in June 2014 retained the requirement for married transgender persons to dissolve existing marriages or civil partnerships to have their preferred gender formally recognised.
There are some cases where it might appear to go in the opposite direction but one has to be very careful in parsing and analysing them. The European Court of Human Rights, for example, took a less clear-cut view in the case of Hamalainen v. Finland in July 2014. In that case, a transgender woman who had married in her former male gender was barred from recognition of her female gender unless she and her partner converted their marriage into a civil partnership or divorced, which they did not want to do. The Grand Chamber of the Court held that the requirement was not disproportionate in that case because the transition from marriage to civil partnership in Finland was almost a formality and the differences between the status of both were minimal. That does not apply here as Finland is a very different jurisdiction. We are used to being told Greece is not Ireland. Ireland is not Finland either.
Fergus Ryan, an authority in this area, in an article in The Irish Times, stated, "It remains an open question whether requiring couples to divorce to gain a particular benefit amounts to an attack on marriage, contrary to Article 41 of the Constitution". Here is a noted constitutional expert saying this requirement amounts to an attack on marriage, and presumably the family.
The European Parliament's 2010 paper on transgender rights cautioned that forced divorce may be in breach of Articles 7 and 9 of the Charter of Fundamental Rights, namely respect for private and family life, right to marry and right to found a family. The authors noted the Austrian constitutional court has granted a transsexual woman the right to change her sex to female while remaining married to her wife. The German constitutional court has made a similar ruling.
The Equality Authority stated the single status provision was unnecessary:
It is the gender of each party at the date of marriage that counts in determining the validity of the 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.
The last contribution I will quote was one that greatly moved me. The lady who wrote the e-mail is in the Visitors Gallery. I am not sure we are supposed to put names on the record. If they are not supposed to be on it, then somebody in the Editor’s office can block it out. It is Victoria Mullen.
People outside the House should not be referred to.
Too late. She is inside the House. She is there waving her arms, proudly.
The Senator knows to what I am referring. She is not a Member of the House.
I do and it is all balderdash.
In an e-mail which really moved me - like Tom Jones on “The Voice”, it went through to my heart - she stated:
I myself am trans and still married. While we live apart, my wife and I still work together in our tax consultancy practice and we raise our children together. Our property, bank accounts, etc. are all owned jointly. [She goes on to list the practical ways in which they still co-operate].
Recently, while watching TV, there was a reference made to a "broken home". My then 12 year old daughter innocently asked me what a broken home was. I explained it to her and to cement the explanation, I embarrassedly admitted that ours was probably a broken home. Laura leapt to her feet and demanded that I take back that comment. "I am not from a broken home," she proclaimed, as hands on hips she stamped her foot on the floor. "I love my two homes and my family. I love my life and I am really happy. I am not from a broken home," she said again. "Now take that back", she insisted. I did.
This little story is 100% true and not in any way exaggerated ... Ours is not a broken family ... The thought that in this, the 21st Century, my own Government (democratically elected) is demanding that I destroy my family for the sake of my identity is quite sickening and distressing. It is a morally corrupt stance, hidden behind some vague and unpublished legal opinion, supposedly issued by the Attorney General.
Members have heard a lot about the Attorney General and opinions on abortion and I am unsure how that is going. Does the Minister of State know whether the vote on that matter has got under way in the other House?
Will the Senator, please, speak to the amendment and the section?
It will be interesting to learn how many Labour Party rebels there are - good for them.
The letter writer continues by noting that the Constitution is clear and that it:
...provides that "The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State." Paragraph 3 ... provides that "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack." There is nothing vague about these articles. The State guarantees to protect the family; it pledges to guard the Institution of Marriage [and so on].
She goes on to write:
I have asked but neither I nor anyone in TENI have ever received a reply to the question of how the State meets these obligations under the Constitution by trying to force me to divorce. My wife, my children and I are all citizens of this Country. Why is our family being singled out for such an attack? Well, it is simply my fault. I am TRANS. My identity is very important to me. But my family is my life itself. I should not be asked to give up one for the other. The legislative requirement that I do is an obscenity.
I acknowledge that I have spent a long time reading this letter and apologise for doing so, but it is such a powerful letter. It stands as a declaration of freedom, a declaration of independence and a declaration - whatever the Iona Institute and its cronies might say - of support for the family as an institution. Perhaps it is a modified form of the family, but are we not all celebrating the fact that our institutions and arrangements are being broadened constantly? I believe this will only last for a short time. The referendum will be held in May and the Government appears to be calculating that nothing disastrous will happen before then. However, that means that there is an absolute obligation on everybody in this House who believes in equality to propagandise, walk the streets and talk to people in shops and their cousins. I met my cousin and his wife in the Kildare Street Club on Sunday and over lunch he told me he was voting against equality in marriage. There was nothing I could say to change his position and he is a consultant physician. He told me he liked to vote against in referendums and while he has this pie-eyed approach, he is only one and can be dismissed. Unfortunately, because his wife who is 25 times more intelligent and would vote in favour with great alacrity is an English double-barrel as I call her - a reader of The Daily Telegraph and all that - she does not have a vote, being a loyal subject of Her Majesty the Queen. This is a wrong that is being done to people, but I hope it will be transient. It is not legally justifiable, but there are different opinions and one can take one or another.
I will leave that thought with the Minister of State, but it is important, for the illumination of anybody who cares to read the record of Seanad Éireann, that the speeches of Senators Marie Maloney, Hildegarde Naughton, Katherine Zappone, Averil Power, Mary White and so on be read and that this human testimony from the transgender community be written into the history of Ireland.
For the first time, I understand the difference between a classical graduate from the honourable house of Trinity and a poor economics graduate from the London School of Economics. While I will try to follow that contribution, it will be rather difficult to do.
On behalf of all the groups that have made representations to me on the single requirement of the Bill, including Amnesty International, The Equality Authority of Ireland, LGBT Noise and Transgender Equality Network Ireland, TENI, not to mention the people in the Visitors Gallery who have been adverted to and openly discussed their own situations with me, I ask the Minister of State to bring this issue back to the Attorney General for further examination. The Joint Committee on Education and Social Protection's report on the general scheme of a gender recognition Bill 2013 recommended that the civil status requirement be reconsidered. While the joint committee acknowledged the difference of opinion between the Attorney General and others on the legal issues around gender recognition for persons who were married or in a civil partnership, it thought that not being single should not prevent a person from qualifying for a gender recognition certificate and urged the Minister to revisit the issue. I am asking the Minister of State to revisit it again and revert to the Attorney General. In recent days there has been much discussion about the Attorney General and what she has or does not have to say. It really bothers me that Members are expected to accept the word of the Attorney General as a dogma that must be followed blindly by Governments. The Attorney General is but one barrister. I suggest the Attorney General form a committee in the Law Library to ascertain what the other legal brains have to say. One person's opinion should never be taken as dogma.
As legislators, Members are not alone in requesting reconsideration of this requirement in that there has been considerable interest abroad in the Bill. Senator David Norris referred to the Council of Europe Commissioner for Human Rights who wrote to the Tánaiste to advise that divorce should not be a necessary condition for gender recognition as it could have a disproportionate effect on family life, which has been cherished in Ireland for as long as I can remember. Moreover, I am sure those who are older than me can remember it for even longer. Given the constitutional protection afforded to marriage and the family, it is arguable that this precondition may be unconstitutional owing to its negative effect on the integrity of the constitutional protection of the family. Amnesty International reminds Members that the right to marry and form a family is protected by several instruments to which Ireland is a party, including the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Neither does the single requirement meet the standards laid out in the Yogyakarta Principles which state "No status, such as marriage or parenthood, may be invoked ... to prevent the legal recognition of a person’s gender identity".
It appears that this unnecessary precondition is based, erroneously, on the premise that recognising the preferred gender of a married person would convert the marriage or civil partnership into a same-sex marriage and that it would be same-sex marriage by the back door. However, the Minister of State should note that even countries in which same-sex marriage is not allowed have also rejected this precondition and that courts in Luxembourg, Germany and Austria have all rejected the single requirement. Given that gender recognition is of prospective effect and the marriage was a heterosexual one and that the validity of the marriage is tested against the factors existing at the time, as my colleague, Senator David Norris, has noted, there is no legal basis for the fear that gender identity recognition would suddenly make it a same-sex marriage. If the Bill did have a retrospective effect, the parenthood and all other rights attached to the marriage should also change. In short, the Bill contradicts itself.
Legal issues aside, as I have told the Minister of State previously, there is a human factor. A loving couple who wish to stay together have come through what must have been the most horrendous set of difficult and challenging circumstances. I refer to a marriage which is intact, within which the couple have made some very serious changes to their lives and who have decided to stay together. These are not couples who have lived apart for four or five previous years and who have irreconcilable differences. Does one seek to have them lie or pretend they are living apart? Does one seek to have them pretend there are irreconcilable differences? They are a tiny minority of couples who have the right to have recognised both their preferred gender and their marriage. To impose an either-or scenario on couples who have successfully navigated this unenviable terrain is inhumane and degrading.
Let us not forget that the only reason that we have this Bill at all is that Ireland has been in breach of the European Court of Human Rights. This Bill should be actively seeking to redress the balance and to mitigate against further injustices and human rights violations. Transgender persons have already been subjected to inhumane discrimination. Let us not build further discrimination into a Bill which is meant to be progressive.
Again I ask the Minister of State to go back to the Attorney General and ask her to consult with colleagues. Hers is only one opinion.
There are people who desperately need this. In the context of what Senator Norris was talking about, I am far from convinced that the marriage equality referendum will be passed. It has been said that 80% of the people are going to support it but the chances are that 40% of that 80% will sit at home and do nothing.
As Senator Norris has said, unless we, as legislators, actively go out and drive the referendum, it is possible, if not likely that it will be defeated because huge forces will be gathered to try to ensure that it does not pass.
We cannot bank everything on the possibility that there will be a review at some stage in the future which will allow us to revisit this particular section of the Bill. While I appreciate the Minister of State's difficulty, I would ask him to go back to the Attorney General and discuss it further with her.
I have had great respect for Senator Norris - bordering on affection - for a long number of years, of which he is fully aware. Senator Norris regularly entertains this House with his oratorical skills, which we all envy but he also educates and informs us with his many very serious contributions. However, I respectfully suggest that to rubbish and dismiss the legitimate arguments of those who oppose same-sex marriage in the manner in which he has done, could help those who are opposed to it, as Senator Craughwell has outlined. I would suggest to Senator Norris that perhaps in the future he might respect those people whose opinions run counter to his own. I am not ---
Absolutely, but only when they respect me.
I am not in any way disrespecting the opinions that are held by Senator Norris in this regard. All I am suggesting is that, as Senator Craughwell has correctly pointed out, referendums are very strange animals. On many occasions in this country we have seen examples of referendums which, in advance of polling day, were shown in opinion polls to have overwhelming popular support but which have subsequently been lost. The most recent example of that was the proposal regarding the abolition of this House, of which Senator Norris is fully aware because he was heavily involved in the campaign.
In the context of this amendment, to dismiss and rubbish the very sincerely-held and legitimate views, which I have heard from many people who are not in favour of same-sex marriage is unwise. Those views should be respected. Senator Norris would be more familiar with Voltaire than I am. Voltaire argued that while he would not necessarily agree with the opinions of the opposition, he would fight to the death to defend their right to voice them. In the forthcoming debate between now and referendum day, I hope Senator Norris and others who agree with him will desist from rubbishing the views of others. It is a strange ingredient among liberal people - which Senator Norris would claim to be - that they are, in some cases, among the most intolerant of other people's opinions.
To get to the nub of this issue, several references have been made to best practice in other countries, specifically to the constitutional courts in Germany. I will narrow this down to one simple point, namely, that the legal advice holds that the constitutional reality is that this State does not recognise same-sex marriage, full stop. Is that not the conundrum that the Minister of State has had to face in this regard? I am totally opposed to this proposal. I absolutely agree with everything that has been said so far in this debate about respect on the one hand, constitutionally, for the institution of marriage and on the other hand, that this legislation is actually going to force a marriage apart. I find that very difficult to accept and absorb but it seems to me that the Minister of State has little choice in this regard because of the constitutional reality in Ireland - not in Germany, Finland or anywhere else. This is about this country, its laws and its Constitution and until that is changed, the Minister of State has little choice but to bring forward this legislation. I wish it were otherwise. Perhaps the Minister of State will clarify that for those who may feel the Government is being obdurate and obstinate in this regard.
I feel great empathy for those who find themselves in this impossible situation. Senator Norris outlined the human impact of this as described in that e-mail which we all received. As legislators, however, we need to be mindful of the legal advice we have been given here, which is that this legislation could prove to be unconstitutional. There is little point in putting legislation onto the Statute Book that would later be deemed unconstitutional.
When I spoke during the Second Stage debate I raised the issue of a sunset clause. As others have already said, the elephant in the room is the forthcoming marriage equality referendum. We will all be out there campaigning for that and I hope we get a positive outcome. In that context, is there the possibility of putting a sunset clause in place now, at this point, pending the outcome of the referendum? That would go some way towards easing people's concerns. Also, the fact that we have unanimously agreed on a review of this legislation might come into play further down the line. I ask the Minister of State to outline his views on the issue of a sunset clause.
Does Senator Norris have any additional comments to make on amendment No. 9?
Yes I have. We rest with the position that the legislation itself is unconstitutional because it represents an attack on existing families. To return to the question of legal advice, Attorneys General are conservative by nature and they give the most timid of advice. The Minister of State has said - or perhaps it was Senator Naughton - that a preponderance of legal opinion is in favour of the Government's position but it is not. That is why I spent some time putting the case from the United Nations, the European court and so forth. An overwhelming preponderance of international opinion is behind those of us who believe that forcing people to divorce is simply morally wrong. Why do we not pass the Bill and let it take its chances? Let Michael D. Higgins, Uachtarán na hÉireann, call the Council of State together and refer it to the Supreme Court. That would be a very good way of settling the matter.
I wish to express my great gratitude to Senator Mooney for his completely unjustified celebration of my various talents. I am well aware of my misdoings and the fact that I sometimes walk on people's corns but there are occasions when those corns deserve a bloody good walking on. The Iona Institute is one such body and I will not take back a single syllable of what I said. These are unelected people who refuse to disclose their accounts to the Standards in Public Office Commission. They just tell the commission to bugger off. That is what they say and they get away with it.
Senator, I must ask you to speak to the amendment.
This is all on the amendment.
It is not, actually.
There are quite a lot of pizza companies in the United States-----
On a point of order-----
Senator Mooney has a point of order.
I want to make it absolutely clear that I have no interest, good, bad or indifferent, in Senator Norris's views on the Iona Institute, which I know little about.
That is not a point of order.
I am talking about genuinely held beliefs of a variety of individuals in this country. I am not talking about any institutions. I am talking about the legitimately-held views of people who oppose same-sex marriage.
Thank you, Senator Mooney.
They should at least be respected in their opinions. That is all I have argued; nothing more-----
Senator, you have made your point.
-----and nothing less. As Senator Craughwell has pointed out, we must wait and see the result of the referendum and whether 80% of the people-----
Senator Mooney, you made that point very well, thank you.
-----will support it. That is the only point I am making. Senator Norris does not do the campaign a great service by his remarks which are critical of people who genuinely hold opposing views to his own.
Senator Norris, on amendment No. 9 please.
I wish to say at this point that-----
Senator, we have given the arguments a very good airing here now.
I know but I have not aired this point and I am going to air it.
We have not yet heard the Minister of State's reply.
My point is that Senator Mullen says he believes in equality. On every single issue reflecting gay people, he has spoken, voted against and put down motions-----
This amendment is not about the Iona Institute or about another Member of the House.
He is always talking about respect. How respectful was it for him to say on RTE radio a couple of years ago that gay men wanted children as a fashion accessory? That is the kind of respect I can live without and I will challenge it at every point.
Senator Mullen is not here to defend himself and that is not relevant to the amendment.
I wish to put on the record that I have no problem with people having opinions that are different from mine while others-----
Senator Norris obviously has.
I do not.
I want to put on the record that I do not judge my personal relationship with people because they have a different opinion. It would not even cross my mind.
There are opposing views but the majority of people I have met are very much in favour of not splitting up a family. I have two children. I am not sure about the Minister of State. I love my two children who have forgiven everything I have ever done to them. They have forgiven every mistake I have ever made and every decision I have ever taken. The children of one transgender person in this room have stuck by her through thick and thin. We heard an e-mail earlier from that woman. That is the issue. All the rest is only fluff and window dressing. At the end of the day, it is about not breaking up a family. I ask the Minister of State to bear that in mind.
I thank everybody for their contributions. In response to Senator Zappone, I do not believe somebody will lose a driving licence, as she outlined, but I will check that and come back to her to be fully clear. There is no doubt that drafting this Bill has been very complex. It has also been very challenging constitutionally in respect of marriage.
In response to Senator Craughwell, it is not just the Attorney General who has taken that opinion. She has also consulted eminent senior counsel in consideration of it. The Cabinet has been very careful in considering the Bill as well. It is complex but I am not in a position to accept the amendment.
I accept what Senator Norris is saying but there are various different opinions. The Attorney General is the legal adviser to the Government. I received the e-mail from the same person the Senator mentioned and it is very moving. I have listened to the debate in this House, as has the Tánaiste. When she moved the Bill, she said she would move very quickly to bring forward an amendment once the referendum took place. The vast bulk of this Bill will be dealt with quickly and efficiently. After talking and listening to quite an amount of information, I want to inform the House that I have agreement from the Minister for Justice and Equality that the implementation Bill will include provisions to amend this legislation to remove the requirement to be single.
What Bill did the Minister of State refer to?
I am happy to inform the House that I have agreement from the Minister for Justice and Equality that the implementation Bill will include provisions to amend this legislation to remove the requirement to be single once the referendum is passed. We are not going to wait for a social welfare Bill. If the referendum is passed, it will be included in the implementation Bill so that will, hopefully, be a speedy and efficient way to resolve the issue. This decision was taken after long consideration by the Tánaiste and me and following consultation with other members of the Government. It will give some comfort at this stage that this is the level of commitment by this Government to deal with it in a very speedy manner. I have had discussions with several people. While it does not satisfy everything and some people will say it is a small gain, it is an important one. I am not accepting the amendment but I give the House the undertaking that we have reached agreement with the Minister for Justice and Equality that it will be in the implementation Bill if the referendum is passed.
The Minister of State is a man of his word. What he has just announced is heartening but still leaves an element of doubt, which is regrettable. In respect of Attorneys General taking advice from other eminent senior counsel, I long for the day when an Attorney General will actually publish his or her advice for the country to see and tell us which eminent counsel provided assistance. I get very tired of these people in the shadows who we never know. We do not see what they are saying and we must continue to act on the basis of accepting what they say. The bottom line is that we need to radically change the way we do business in this country. If an Attorney General is appointed by the State to offer legal advice, there is no reason why that legal advice should not be made public - Cabinet confidentiality be damned. Let us see the advice. For every barrister the Minister of State can cite with an opinion, I can cite one with a counter opinion. In the end, we rely on the lawyers to made a decision, which is no way to do business.
Is amendment No. 9 being pressed?
Amendments Nos. 26, 30 and 32 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 26:
In page 12, to delete line 25 and substitute the following:
"(c) an indication of the person's gender using the abbreviations M (male), F (female) or X (indeterminate/unspecified/intersex).".
This amendment seeks to allow a facility for those who do not identify with being male or female. In Australia there is a provision to allow inclusion in a passport as male or female or X to indicate indeterminate, unspecified or intersex. As the Minister of State is aware, gender is a complex spectrum and that there are many persons who are trans for whom this legislation will not cater as there is no provision for those of a non-binary gender. This, however, is not a particularly complex legal question which has been addressed in other jurisdictions. We can do so also in the context of this Bill.
I wish to make one small point on the question of gender being indeterminate or intersex. This is not something that has been adverted to very much in public discourse. There was a report - I think yesterday - in the English newspapers on a young man, a perfectly ordinary working man. When he presented for a routine medical procedure, the doctor called him aside and said: "By the way, you have a fallopian tube and a womb and you could actually have a child." It was extraordinary. These are the anomalies on the edge that previously were ironed out. This is to make the point that, although statistically it is a rarity, sex can be indeterminate.
Amendment No. 32 seeks to amend section 18 to replace a reference to "mother and father" with "a parent". If we were to accept this amendment, it would upset the concept of guardianship as currently applied; therefore, there would be an unintented consequence. We need to be cautious in that regard. I do not propose to accept the amendments based on the principles set out in section 17(1) which states:
Where a gender recognition certificate is issued to a person the person's gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person's sex becomes that of a man, and if it is the female gender the person's sex becomes that of a woman.
The Bill does not provide for a third category. I have had discussions outside the House with different groupings that have taken issue with this - Senator Katherine Zappone has also been involved in civic engagement - but at this stage I am not prepared to accept the amendments. The issue is complicated and there would be knock-on effects within the Bill in that it it would upset the concept of guardianship. We, therefore, need to look at the issue more closely.
I can understand the concerns about amendment No. 32 but not about amendment No. 26 which seeks to provide a facility in the case of documentation, including passports and so on. It seeks to delete line 25 and substitute an indication of a person's gender using the abbreviations M for male, F for female, or X for indeterminate, unspecified or intersex. When the Minister of State mentioned unintended consequences, I am not sure if he was referring to amendment No. 26 or amendment No. 32. Perhaps he might explain them. Has he looked at the Australian model and the model in countries that have gone some way towards dealing with this issue? If so, why have we not learned from or adapted what they have done? If other countries can do it, I am puzzled why we cannot do it also. The issue does not appear to be all that complex; it is a little more straightforward than the Minister of State said. Perhaps he might explain the unintended consequences in respect of amendment No. 26, not amendment No. 32.
Somebody in the Visitors Gallery thinks the Minister of State is saying, "I won't because I won't." I am not sure that is 100% fair to him, but it is a legitimately held point of view.
I raise an accidental issue which hinges on this matter tangentially, that is, a recent development which I very much welcome - I deplore the lack of legislation in this regard - in respect of the use of mitochondrial DNA to eliminate genetic disorders in children. The tabloid press in England has stated this relates to three-parent babies and so on. The writers have gone off on this issue in the same way as they went off about marriage; they say one could marry one's dog or marry three or eight people, all of which is utter rubbish. I actually think pointing out that something is rubbish is respectful as it gives people an opportunity to repent. There is greater celebration in the courts of heaven over one black sheep that repents than there is over the 99 already in the fold. I am just pointing out that there is the added complication of mitochondrial DNA which we will have to face sooner or later.
There is no facility in the civil registration system to deal with the issue. In respect of the Australian model, I have had engagement outside the House on the passport elements and undertaken to engage with the Department of Foreign Affairs and Trade which issues passports to see whether we can find a solution. Australia is the country that has done this. I have not had an opportunity to look at exactly what it has done, but I have given a commitment to people outside the House that I will try to facilitate engagement with the Department of Foreign Affairs and Trade. Other than this, there is no facility within the civil registration system to do what the Senator is asking to be done.
Is amendment No. 26 being pressed?
No; I might resubmit it on Report Stage.
I move amendment No. 27:
In page 15, to delete line 11.
I move amendment No. 28:
In page 15, to delete line 15.
I move amendment No. 29:
In page 15, to delete lines 20 to 28.
I move amendment No. 30:
In page 18, lines 28 to 30, to delete all words from and including “so” in line 28 down to and including “woman” in line 30.
I move amendment No. 31:
In page 18, to delete line 35, and in page 19, to delete lines 1 to 7.
I move amendment No. 32:
In page 19, line 20, to delete “the father or mother” and substitute “parent”.
I want to put the House on notice that there will be a technical amendment to come afterwards. The sections of the Bill are linked in regard to wills.
For information purposes, I want to put the House on notice that there will be a small change to section 19 on Report Stage. Where the section currently refers to when "the Act" comes into operation, the amendment will propose to change that to when "the section" comes into operation.
We will discuss that on Report Stage.
I move amendment No. 33:
In page 23, between lines 7 and 8, to insert the following:
“(6) A certified copy, a copy or a certified extract of an entry in the register of gender recognition shall not disclose the fact that the entry is contained in the register of gender recognition.”.
I do not propose to accept this amendment as it is unnecessary. Section 26 of the Bill inserts a new section 30C in the Civil Registration Act 2004. A statutory instrument will be made under section 30C(5) of that Act in regard to the certificate drawn from the register of gender recognition. The statutory instrument will in its schedule include a certificate setting out the entire content of the certificate, including the title of the certificate and its relationship with the birth certificate. The certificate will not contain any reference to the register of gender recognition and it will look, to all intents and purposes, identical to a birth certificate drawn from the register of the birth. Therefore, the amendment is not necessary.
I move amendment No. 34:
In page 29, between lines 5 and 6, to insert the following:
“Offence of disclosing information contained in a Gender Recognition Certificate
36. (1) It shall be an offence for a person who has acquired protected information concerning a person’s gender in an official capacity to disclose the information to any other person.
(2) “Protected information” means information which relates to a person who has had their recorded sex changed, or made an application to have it changed and concerns either that application or the information changed or concerns the person’s previous recorded sex.
(3) A person acquires protected information in an official capacity if the person acquires it—
(a) in connection with the person’s functions as a member of the civil service, a member of An Garda Síochána or the holder of any other public office or in connection with the functions of a local authority, or statutory body, or of a voluntary organisation,
(b) as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or
(c) in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.
(4) It shall not be an offence under this section to disclose protected information relating to a person if—
(a) the information does not enable that person to be identified,
(b) that person has agreed to the disclosure of the information,
(c) the information is protected information by virtue of subsection (2) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued,
(d) the disclosure is in accordance with an order of a court,
(e) the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court,
(f) the disclosure is for the purpose of preventing or investigating crime, or to the National Vetting Bureau,
(g) the disclosure is made to the Registrar General,
(h) the disclosure is made for the purposes of the operation of payments administered by the Department of Social Protection,
(i) the disclosure is required by law.”.
The rationale for this amendment is to insert a provision that would make it an offence to disclose information about a person's gender identity that was received in the course of official business. We ask that the Minister of State would consider this, given the level of stigma and discrimination which is faced by transgender people. A person's gender status should only ever be disclosed with the person's consent. We find it remarkable that no consideration has been given to this despite TENI raising it during the original discussions around the scheme of the Bill when it was first published.
We will raise this matter on Report Stage as well so I do not intend to press the amendment, and I know the matter was also raised on Second Stage. I have some further points to make but I will listen to the Minister of State's response. We think it important, given the sensitive nature of this, that a person's right be protected. The amendment proposes a new section to make it an offence for someone who is working in an official capacity to divulge information in regard to a person's application in this manner. I look forward to the Minister of State's response.
I am not sure that I heard the Minister of State discussing this previously but it seems to me a worthy amendment. My own experience with the gutter press would lead me to conclude that quite a number of red-top newspapers would glory in getting hold of this kind of stuff and splattering it right across the front page, with a lot of sanctimonious praise for the transgendered person - "Tranny Granny drops kids off at school", and that kind of crap.
I notice there is no penalty. Had the Senator considered sticking them in the stocks and providing rotten vegetables?
I will come back to that.
That would be very good. However, a law is not much use if there is no penalty attached to it.
I would be interested to hear what the Minister of State has to say but I am all in favour of it. It is private information. If people want to make it public, let them make it public. However, I do think people in the media who leak this kind of thing should be got at.
Something has just come to mind, if I may have the indulgence of the House. About 30 years ago, I was at an AIDS event in Christchurch Cathedral. I helped myself to a couple of gin and tonics and then I sailed off to North Great Georges Street, my principal domicile and main seat in the Republic of Ireland. I looked out to see if there was any place to park the car, and I parked it end-on, so I could come back and re-park it later. I went into the house, opened up a bottle of madeira and the Sunday newspapers, and looked out every so often to see what was happening in the street. Eventually, about 11 o'clock or so, a space developed so I went out. While I was there, I thought, "I have run out of cigarettes" - I beg Senator Crown's pardon, this was 30 years ago - so I said I would scoot around the block and see if there were any fags. Off I went, and at the bottom of the road there was a group of cheery police persons. They waved at me, and I waved back and said, "Hi lads", and I pulled up beautifully, parallel to the kerb outside my front door. To my astonishment, a big red face emerged and said, "Blow into the bag", and I was got; I was done.
It was perfectly legitimate, a fair cop and all the rest but, at Christmas, when the case was in the court, the judge failed to turn up - wonderful - so the press did not get hold of it at all. It was held after Christmas very privately and nobody heard a word until, six weeks later, I was walking down Grafton Street and there it was, right across the front page - "Senator on drunk driving charge".
I was only a Senator about three weeks and it was humiliating. A reporter asked me, "Did you not know you could say you were on Government business?". The incident occurred about 2 a.m. so I asked him what precisely I could say I was doing in my pyjamas at 2 a.m. However, a Minister of State who took eight hours to get as far as Rathmines used the excuse of Government business and Charlie Haughey belaboured him and told him he should have taken his lumps, like Senator Norris.
We have given the Senator a fair bit of latitude on this.
I investigated this and discovered that what had happened was that some little S.H.1.T. from the fines office said, "That little shit Norris, that little queer is not going to get away with this", and telephoned the Evening Herald and told it the whole story
Thank you, Senator.
It was all over the papers. That is the kind of thing that can happen with irresponsible journalism.
Senator Norris raised the issue of there being no sanction in this. This was done deliberately because what we are trying to do is to get the Minister to agree to the principle of an "offence". If that is agreed we can come back on Report Stage and consider an agreed sanction. We deliberately left out a sanction on the basis that we would ask the Minister to look at the issue as a stand-alone issue. This is an important issue, which has been raised by TENI. These are all sensitive issues and if the Minister agrees that we could consider a new section that would make it an offence to disclose information, he could then come back with recommendations in regard to what he would consider would be an appropriate sanction.
This is a very wide-ranging provision, which would give rise to significant and unforeseen implications across both the public and private sectors and would, therefore, require further detailed consideration, including consultation with all of those actually and potentially impacted by the provision. The Bill already contains provisions on maintaining confidentiality.
In regard to the administration of the application for gender recognition certificates, the existing legislation in regard to confidentiality of information, such as the Official Secrets Act and Data Protection Act, applies. Therefore, I believe there is already adequate protection in our legislation. The Senator may consult me further on the issue and I will take a further look at the issue, but I do not propose to accept this amendment.
What section of the Bill provides protections? Are there sanctions?
As I pointed out, the existing legislation relating to confidentiality on information, such as the Official Secrets Act and the Data Protection Act, applies. These two Acts apply, but perhaps the Senator has a different view on that.
That was my point, and Senator Norris already articulated this point. Hypothetically, somebody might divulge sensitive information on somebody who was seeking a certificate of transition from officials and that information might then be leaked to the media or somebody else. However the individual who made the transition might have wanted that information kept confidential as it is their private business. The Minister of State mentioned the Official Secrets Act and the Data Protection Act, but I do not believe that protection is robust enough given the seriousness of the issues we are discussing. The amendment seeks to make it a specific offence to divulge information a person has no business divulging.
The only people this applies to is the person involved or the surviving kin. I am not sure what sanctions are provided in the Official Secrets Act or the Data Protection Act, but I will look at those. Historically, the register has not been leaked to my knowledge. I understand what the Senator seeks to do, but I believe the legislation we have currently is robust enough to deal with the issue. I will take a look at what sanctions are provided for, but I would imagine there are grave sanctions for any breach of the Official Secrets Act.
Amendments Nos. 35 to 39, inclusive, are related and may be discussed together by agreement.
I move amendment No. 35:
In page 29, after line 28, to insert the following:
“Use of public bathroom facilities
38. (1) Without prejudice to the generality of section 17 or to the provisions of the Equal Status Acts 2000 to 2011, where public bathroom facilities are assigned based on gender, a person to whom this section applies may use the public bathroom facilities allocated to the gender that is the same as his or her preferred gender.
(2) In this section —
“public bathroom facilities” means a toilet, bathroom or similar facility that is made available for use by members of the public, or that is located in a place that is open to the public, whether for a fee or otherwise;
“a person to whom this section applies” means a person whose preferred gender is different from the gender assigned to the person at birth, whether or not the person is a person to whom a gender recognition certificate has been issued.”.
This amendment relates to the use of public bathroom facilities. I decided it was important to include this provision following conversations with advocacy groups, including TENI, because the issue of the use of public bathroom facilities often arose in the context of discussions with members of the trans community. The Bill is based on the principles of enabling the rights of the trans people to be recognised and on providing adequate protection for them in that regard. They have not had that kind of protection previously, particularly in circumstances where there could be significant harassment. In the context of public bathroom facilities, they have found there could be harassment and even violence because of wanting to use a bathroom assigned to their preferred gender identity.
The amendment uses the term "Without prejudice to" and makes a general statement in terms of the effect of the gender recognition certificate, but without prejudice to that. We consider it is important to include an amendment that specifies and clarifies that transgender people can use public bathroom facilities allocated to the gender that is the same as their preferred gender. This applies to facilities in theatres, restaurants, pubs, conference centres, schools and even Leinster House. It is important to include this amendment to help clarify they are entitled to use those facilities that are appropriate to their preferred gender, whether they are recognised under the Act or not.
Throughout debate on this, we have been made aware and now know that there will be trans people who are not recognised under the Act, some between the ages of 16 and 18, all under the ages of 16, and some who are married who will not divorce their family in order to get the gender recognition certificate. Therefore, a number of trans people will not come under the Act, if enacted in its current form. This amendment relates particularly to them, but also to all transgender people. It is important this amendment is included in order to clarify that these people have this protection. The amendment strives to facilitate the safety of trans people in public facilities and to combat the negative stereotyping of trans people, particularly young trans people.
It is very humiliating for trans people to be forced into a lavatory of a sex to which they do not feel assigned. Interestingly, Professor Monstrey of Ghent University, who was honoured by the College of Surgeons as an international world figure, asked my consultant what he thought was the most important element in gender reassignment. To my amazement, he said it was being able to pee standing up. I find that extraordinary, but it is an important and practical aspect of the situation.
In my radio reminiscences, I remember an occasion 25 years ago when I was on a Pat Kenny show.
Pat Kenny is not here to defend himself.
He does not need to be. He was just the person who gave his name to the show and he wisely kept out of the debate. Somebody telephoned into the show from Clonmel saying, "I have great sympathy with you lot of homosexuals and I have noticed in the town on the fair day there is a lavatory for men and there is a lavatory for women and I'm on the council and I'm going to suggest there is another one for homosexuals". In those days, 20 or 30 years ago, the idea of people queueing up to go into a lavatory labelled "for homosexuals only" is wonderful. It is a bizarre attitude but very kindly meant.
I would like to cover some matters not included in this Bill. We have the perfect opportunity now to address not just the issue of gender identity recognition but other areas where discrimination against transgender persons occurs. Articles 2 and 5 of the European Convention on Human Rights guarantee the right to life and security of every person. In spite of this, many transgender people live in fear and face violence in the course of their lives. This violence ranges from harassment, bullying, verbal abuse, physical violence and sexual assault to hate crimes resulting in murder.
Transphobia, understood as the irrational fear of, and or hostility towards, people who are transgender, or who otherwise transgress traditional gender norms, can be considered as one of the main causes of violence and intolerance that many transgender persons face. Aggression against transgender people cannot, however, be excused as resulting from ignorance or lack of education and is a serious hate crime. In Ireland we could be forgiven for believing the raft of equality legislation which has been introduced over the years provides protection from discrimination to trans people but in reality it does not. Studies have shown that transgender men and women have a high risk of becoming victims of a hate crime or a hate-motivated incident.
An authoritative Organization for Security and Cooperation in Europe, OSCE, report states that homophobic hate crimes and incidents often show a high degree of cruelty and brutality. They often involve severe beatings, torture, mutilation, castration, even sexual assault. They are also very likely to result in death. Transgender people seem to be even more vulnerable within this category. Despite these findings, gender identity as a possible ground for hate crimes is not explicitly recognised in the legislation of most Council of Europe member states. One of the very few exceptions is the recently adopted Scottish hate crime Bill which explicitly mentions transphobic hate crime. It is also not clear whether states include "gender identity" under the category of "gender" or "sex" in their hate crime legislation.
As a result, transphobia is usually not considered an aggravating factor for hate crimes committed against transgender persons, as shown by the sentences for perpetrators of hate motivated killings in, for example, Portugal and Turkey. Therefore, one can only conclude that transgender people are excluded from specific legal protection, despite their high risk of falling victim to hate crimes. The OSCE has pointed out that explicitly condemning bias motives sends a message to offenders that a just and humane society will not tolerate such behaviour. By recognising the harm done to victims, states convey to individual victims and to their communities the understanding that the criminal justice system serves to protect them.
Moreover, most states do not record or monitor hate crimes or hate motivated incidents of a transphobic nature. These crimes normally go unreported by the police. This was also noted by the OSCE report which observed that transphobic hate-motivated incidents are among the most under-reported and under-documented. One of the few exceptions is the UK, which has a policy of documenting the number of hate crimes committed against transgender people. In practice, transgender people are often afforded little protection by law enforcement officials in the event of a transphobic hate crime or incident. In many cases transgender people who turn to law enforcement agencies for protection are often ridiculed, harassed or just ignored, despite the positive obligation of states under the European Convention on Human Rights to investigate these crimes and bring the perpetrators to justice.
I ask the Minister of State to give serious consideration to providing enhanced protection not just to those seeking gender recognition certificates but to all trans persons. In light of this I am suggesting several amendments to existing legislation. I could read out the legislation but will spare the Minister of State this evening. My first suggestion, however, is an amendment to the Prohibition of Incitement to Hatred Act 1989. Explicitly stating that "gender identity”, "gender expression", "intersex" and "any gender that is not standard male or female gender identity" will enhance protection for trans persons, intersex persons and those with a non-binary gender identity. I will send the wording of the amendment to the Minister of State.
The second amendment I am proposing is to the Employment Equality Act 1998. The purpose of the amendment is to make it explicitly clear that all transgender persons are protected under the 1998 Act. Currently, equality legislation provides quite robust protection to transgender people who have undergone, are undergoing or planning to undergo gender reassignment. This protection is offered under the gender ground in the Employment Equality Act 1998 and the Equal Status Act 2000 as interpreted in the light of European Union law. The effect of this protection is illustrated by the Hannon and O'Byrne decisions, where the Equality Tribunal found that in failing to accommodate the transition of two transgender women, an employer and a bank respectively had infringed gender equality rules. There are, however, three key difficulties with the current legislative protection for trans persons. First, it is unclear whether transgender people who have not transitioned and do not plan to transition are protected by the law. It is possible that the European Court of Justice would take an expansive approach and say that they are, but at the moment, protection is confined to those who have transitioned, are planning to transition or are undergoing transition. There is, at least, some ambiguity.
Second, it is not clear whether transition requires a physical reassignment, surgery or hormonal treatment, or whether a social transition living in the preferred gender without undergoing surgery is sufficient. The better view may be that physical treatment is not required under EU law, but the issue is legally unclear and would benefit from clarification.
Finally, the issue of gender identity is not explicitly named in the 1998 and 2000 Acts. Naming it explicitly means that there will hopefully be greater consciousness of the need to protect transgender people in employment and in the provision of goods and services. It will also mean that for the first time in Irish legislation gender identity and gender expression will be explicitly named and defined. Hence I am recommending that my amendments Nos. 37 to 39 be also included in this Bill. I have typed up the amendments and with the Minister of State’s permission will e-mail them to him and ask him to take them on board.
I support amendment No. 35 proposed by Senator Zappone. It seems quite simple and straightforward but is greater because it involves the State sending out a clear signal about public facilities and that it wishes to build a respectful and inclusive society. It would be regrettable that we would ever think somebody had to prove his or her gender in order to use State public facilities. There is more to the amendment than we see in the text.
It reminded me of our privileged role as Senators. We receive briefings and information on issues such as this and meet people from different communities. This not only gives us insight but also a responsibility for leadership and to ensure that we build the society we all wish to be part of. Senator Zappone introduced me to the issue, encouraging me to read more about it and because I am passionate about children’s rights I realised the issues arising for them. I support this amendment and Senator Zappone.
I refer to amendment No. 36. It is a Fianna Fáil amendment to amend the Education Act 1998.
I also second the amendments proposed by Senators Craughwell, Zappone and van Turnhout concerning public facilities. It is important, regardless of whether people have a gender recognition certificate, that they have full access to public services and the support they need in education and elsewhere. From the point of view of education, if the Bill proceeds and is enacted in its current format, which is restrictive and does not provide recognition for those under 16 years of age, it is incumbent on us to provide guidelines and other support to assist young people, particularly in the school setting.
In that context, we tabled amendment No. 38 which ensures that, regardless of whether a person has a gender recognition certificate-----
Is the Senator referring to the amendment No. 35?
No, amendments Nos. 35 to 39 are grouped. Amendment No. 38 ensures schools will be told the young person should be supported in terms of how he or she is addressed and is entitled to use the preferred name and gender, that person will be permitted to wear the uniform or clothing appropriate to the preferred gender and entitled to use the facilities appropriate to the gender. This is important as there are many practical difficulties. Recognition is one issue but, as I previously argued, we should ensure the recognition process is as inclusive as possible. Even that aside, there are many practical difficulties people face on a daily basis, particularly young people in our schools. Many schools are looking for guidance on this and are not sure what to do when the first transgender young person presents. They would welcome guidance from the State and from the Department in assisting them and showing them what is best practice. In that vein, we propose amendment No. 36.
I thank the Senators. The amendments proposed are beyond the scope of the Bill, which is primarily to recognise the change of gender and the provision of gender recognition certificates. I can see why some of the specific grounds of discrimination would make it a strong message but it is not within my remit. Many of the points raised fall under the remit of the Minister for Justice and Equality.
With regard to discrimination in the use of school facilities, I understand why the Senator has raised the issue. There is a real need for transgender children in schools to be protected and respected. The Tánaiste has met parents of transgender children and I discussed the matter with the Minister for Education and Skills, Deputy Jan O'Sullivan. Last week, the Minister launched an anti-bullying policy in primary schools. She is about to launch further information on that.
Incitement to hatred is going far outside the remit of the Bill. With regard to Senator Power's comment about schools, there is a role for the Minister for Education and Skills, who must take up the issues and deal with them. I will take it up further with her. I talked to her briefly about some of the issues raised by the amendments. There is a real need for guidance to ensure transgender children are treated with the respect they deserve. Many of the amendments tabled by Senator Craughwell do not fall within the remit of the Bill but we can take that up with the Department of Justice and Equality.
Given my rather short experience of Bills passing through this House, it would be great if the Minister of State can have a word with the Minister for Justice and Equality about the 1998 and 2000 Acts and the Prohibition of Incitement to Hatred Act and she can bring forward these issues. I appreciate they fall outside the scope of the Bill before the House but apparently the Minister of State has understood their importance.
With respect, does the Minister of State have a comment on amendment No. 35? I do not see how it falls outside the remit of the Bill.
I understand what the Minister of State is saying about introducing separate amendments to different Bills covering incitement to hatred legislation, education legislation and others. The unfortunate point then is that we will have to wait for separate Bills to come through. There is no reason it cannot be done here. Is the Minister of State saying that this cannot be included for legal reasons or is it a political decision? My understanding is that it is a political decision. The provisions are not so wildly different to the purpose of the Bill that they could not be included. We frequently have Government Bills where the primary purpose is to do one thing but the Bill also includes amendments to other legislation to address broader issues in the area. That is the case here and it would be a shame to await separate items of justice and education legislation. This may or may not happen in the rest of the term of the Seanad, one year or 14 months. There is an opportunity to include them in this Bill.
The use of bathrooms falls under the area of discrimination so it is not within the remit of this Bill. With regard to Senator Zappone's point, I am certain the Minister for Justice and Equality, Deputy Frances Fitzgerald, will facilitate a meeting because Senator Craughwell has thought out the proposals.
We have not considered taking other elements in this Bill. We are keeping it to gender registration.
Is that a political decision or legislative constraint?
It moves into education legislation. I will have to consider it and consult with the Department of Education and Skills. The Minister is very active in that area and will launch a number of initiatives. She will deal with this in a speedy manner. I do not propose to accept the amendments.
I thank the Minister of State for his response. The Equal Status Act has been referenced. Does that mean the State will not protect transgender people to use the public bathroom facilities of their preferred gender?
The equality legislation already covers transgender matters. The Senator is talking about the specific use of bathrooms. We must examine the equality legislation and my understanding is that it already covers the area.
I move amendment No. 36:
In page 29, after line 28, to insert the following:
“Amendment of Education Act 1998
38. The Education Act 1998 is amended by the insertion of the following after section 37:
“37A. (1)In this section ‘a person to whom this section applies’ means a person whose preferred gender is different from the gender assigned to the person at birth, whether or not the person is a person to whom a gender recognition certificate has been issued.
(2) Without prejudice to sections 22 and 23 and the provisions of the Equal Status Acts 2000 to 2011, the Principal and staff of a recognised school shall ensure, in so far as it is practicable to do so, that a person to whom this section applies who is attending a recognised school—
(a) shall be addressed in and entitled to use his or her preferred name and their preferred gender,
(b) shall be permitted on the premises of the school to wear the uniform or clothing appropriate to their preferred gender, and
(c) shall be entitled to use the facilities appropriate to his or her preferred gender.
(3) Without prejudice to sections 22 and 23 and the provisions of the Equal Status Acts 2000 to 2011, the Principal and staff of a recognised school shall take such steps as are reasonable to ensure that the safety and welfare of a person to whom this section applies is not compromised or diminished by the conduct of the school, its employees or by any person who is likely to use the facilities of the school or be in attendance on the school premises.”.”.
- Barrett, Sean D.
- Byrne, Thomas.
- Craughwell, Gerard P.
- Healy Eames, Fidelma.
- Heffernan, James.
- Mooney, Paschal.
- Norris, David.
- Ó Clochartaigh, Trevor.
- Ó Murchú, Labhrás.
- O'Brien, Mary Ann.
- Power, Averil.
- van Turnhout, Jillian.
- Zappone, Katherine.
- Bacik, Ivana.
- Burke, Colm.
- Comiskey, Michael.
- D'Arcy, Jim.
- D'Arcy, Michael.
- Gilroy, John.
- Hayden, Aideen.
- Higgins, Lorraine.
- Keane, Cáit.
- Kelly, John.
- Landy, Denis.
- Moloney, Marie.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Naughton, Hildegarde.
- Noone, Catherine.
- O'Keeffe, Susan.
- O'Neill, Pat.
- Sheahan, Tom.
When is it proposed to take next Stage?
When is it proposed to sit again?
Tomorrow at 10.30 a.m.