Gender Recognition Bill 2014: Report and Final Stages

I welcome the Minister of State, Deputy Kevin Humphreys, back to the House. Before we commence, I remind Senators that they may speak only once on Report Stage, with the exception of the proposer of an amendment who may reply to the discussion on the amendment. I further remind Members that each Report Stage amendment must be seconded.

Amendment No. 1 is in the name of Senators Katherine Zappone, Averil Power and others. Amendment No. 7 is related and the two proposals may be discussed together. Is that agreed?

On a point of order, the procedure is that I will move the amendment, speak to it and that it will then need to be seconded. Is that correct?

Yes. As the proposer of the amendment, the Senator may speak again. Every other Senator may only speak once.

I understand that, but what is the position on amendments being grouped?

The Senator should speak to the amendments included in the group.

I move amendment No. 1:

In page 5, between lines 16 and 17, to insert the following:

“(3) The Minister shall, not later than 2 years after the date on which the Act is enacted, and again not later than 5 years after that date, carry out a review of the operation of this Act assessing, in particular, its consistency with international best practice in the field of gender recognition and its compliance with national, regional and international equality and human rights standards, and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.”.

I welcome the Minister of State, Deputy Kevin Humphreys, and his officials, all of whom are great advocates. The Bill is approaching the end of its time in the Seanad. As the Minister of State has said, both informally and in this House, the Seanad has been a good place to debate the Bill and it has received a good hearing in this Chamber. I am so pleased with the comments made by my colleagues in support of things that he has advocated. We have all been changed because of what he and his colleagues have said. Their articulate voices certainly converted me from the very beginning.

Amendment No. 1 relates to a review of the legislation. I intend to discuss it in the context of amendment No. 7, which is a Government proposal. There are a couple of major differences between these two amendments. There is a difference in respect of the length of the proposed review periods but I do not believe this to be the most substantial difference. Amendment No. 1 states, "The Minister shall, not later than 2 years after the date on which the Act is enacted, and again not later than 5 years after that date, carry out a review of the operation of this Act", whereas amendment No. 7 states:

The Minister shall—

(a) not later than 2 years after this section comes into operation, commence a review of the operation of this Act, and

(b) not later than 12 months after its commencement, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.”.

There is a difference in timing, but my difficulties do not relate to it. There are two other substantive differences between amendments Nos. 1 and 7. Amendment No. 1 recommends that when the review is carried out, the legislation should be assessed, in particular, with regard to "its consistency with international best practice" - the Government amendment makes no mention of the latter - and in the context of "its compliance with national, regional and international equality and human rights standards". I would appreciate it if the Minister of State indicated why what is contained in our amendment is not included in the Government's amendment.

The first matter we must consider in the context of these two amendments is why it is so important to include in the Bill a provision relating to consistency and compliance with international best practice. We know that when the legislation leaves the House, there will probably be a couple of things about which we care deeply that will not have been changed but that should have been changed. The Government has stated that, please God, when the legislation is reviewed two years from now, those things can be changed. The Bill is not perfect and it does not even reflect best practice in many people's eyes. In light of that fact, why is it so important that the review should be compliant or consistent with international best practice? The answer is that in 2009, Thomas Hammarberg, the then Council of Europe Commissioner for Human Rights, stressed that formal gender recognition should not depend on the assessment of mental health or medical professionals. Instead, transgender people should be treated as ‘‘subjects who are responsible for their own health needs." Effectively, that was a declaration of international best practice by the Council of Europe. It is that kind of international best practice which ought to be reflected in the review of the legislation. This is critical, particularly in view of the fact that we may not get everything we want in the context of the right of transgender people to determine who they are.

The second major difference relates to compliance with national, regional and international human rights standards.

In this regard, it is important to indicate that a view was expressed very recently by a great expert on international human rights standards, Professor O'Flaherty, who wrote in The Irish Times referring to the Yogyakarta Principles, as many of us have done here, and indicating in his view, as somebody who was there, who wrote the report and consulted with many other eminent human rights lawyers, the importance of self-determination regarding gender recognition and, therefore, not needing any kind of medical assessment or opinion in that regard. That was written just a couple of weeks ago and it is in reference to international standards that are there for us that we would like to see be part of the review, and ought to be part of the review, as distinct from what the Government has put forward, namely, that after two years there will be a review, without necessarily any kind of benchmarks or standards.

I ask the Minister of State to tell us why these two substantive issues that are in our amendment are not included in his amendment, although I am not necessarily quibbling with the time issue, given that he knows we still have concerns about medical personnel being involved. We have concerns about the fact that if medical personnel are to be involved, the general practitioners are not engaged. We have concerns about the forced divorce requirement and about the age requirement. What will the Government's benchmarks or guiding principles be when they review this Act in that regard?

It could be a great day if the Minister of State and the Government expressed their solidarity with other European countries such as Malta, Germany and Denmark and international colleagues such as Argentina and could promise, in law, to review Irish law in regard to these. That is the purpose of part of our amendment. It could be a great day if the Minister of State were willing to say, in law, that he would see if Irish law complies with international human rights standards. Would it not be great to see that in our law? That would be progressive.

I wonder what the Government - I do not mean the Minister of State personally - fears. I do not think the Minister, Deputy Charles Flanagan, and his colleagues can say in public that human rights is one of our top priorities for foreign affairs if he and other Cabinet colleagues resist or press the pause button on a domestic law, declaring they will review this legislation according to human rights standards. That is not coherent Government policy. Our amendment gives the Minister of State an opportunity to go some way towards correcting this lack of coherence.

Is Senator Averil Power seconding the amendment? Does Senator Jillian van Turnhout want to second it?

I have great pleasure in seconding the amendment Senator Katherine Zappone has put forward and agree with everything she has said. The difficulty I had when I read amendment No. 7 proposed by the Government was with regard to what is the basis for the review. Will the review be to the effect that it has granted X number of certificates and this is how it happened? The difficulty is that this is what is in legislation and some of us will not be here in two years time to oversee that review. The language does not tell me the basis for the review whereas the amendment proposed by Senator Zappone clearly refers to consistency with international best practice and human rights standards.

Senator Katherine Zappone mentioned the article by Professor Michael O'Flaherty. He was succinct when he stated:

The fundamental test of the quality of this Bill should be ... how well it honours the right of every one to be recognised as their gender of choice. We all have the entitlement to live as who we are, to be welcomed in society as the person we choose to be. That principle is enshrined in international human rights law.

He certainly speaks very much as a leading expert, given that he was the group rapporteur of the 2006 Yogyakarta Principles.

The difficulty I have with the Government amendment - it is welcome that the Minister of State has tabled the amendment - is with regard to what is the basis of and the standards for the review. Amendment No. 1 clearly sets this out.

I was hoping for that type of amendment, although perhaps with slightly different language - one whereby we would know what the review would be on, rather than a commitment that a review would take place in two years time and then a report would be sent to the Houses and it would be all done. This does not give me the assurance we had on Committee Stage, when the Minister of State assured the House he would come back with an amendment. I am pleased that Senator Katherine Zappone has resubmitted this amendment.

I, too, support Senator Katherine Zappone's amendment. It is welcome that this is one of the areas where the Government has at least brought forward an amendment. I would have preferred to see more Government amendments to address the issues raised on Second and Committee Stages, but I acknowledge that the Government has moved somewhat on the matter.

I share the same concerns about setting a benchmark. It is important at this stage to set a benchmark for the review and that it should not be simply a box-ticking or quantitative exercise - Senator Jilian van Turnhout remarked on this also - whereby the Government would simply list the number of certificates issued. Rather, it should be monitored against best practice developments in this area, human rights standards and so on, as set out in Senator Katherine Zappone's amendment. For this reason, the amendment she has put forward is superior and I hope it will get the support of the House.

I welcome the Minister of State, Deputy Kevin Humphreys. I also welcome all the people in the Visitors Gallery. I know that they have played a major part in getting us to this stage. It is welcome that we are almost at the conclusion of this progressive legislation, which is long overdue, as we have all acknowledged.

It is welcome that, in accordance with the debate on Committee Stage, we have Government amendment No. 7 which relates to the review of the legislation, as well as a series of Government amendments on the medical evaluation issue. There has been some debate on the difference between Senator Katherine Zappone's amendment and the Government amendment. We are all in agreement on the principle and the principle is of considerable importance. It holds that there should be a review of the legislation within a specific period. I offer one observation on the difference between the two texts. We are all in agreement in principle and we all agree with Senator Katherine Zappone's criteria relating to how the review should be conducted. The Government amendment is preferable for two reasons. First, it specifies not only the commencement date of the review but also the completion date. The amendment specifies that not later than 12 months after the commencement of the review a report would be made to the Houses of the Oireachtas. This precision is of considerable importance because all of us are mindful of how long reviews can go on for if the timeframe is left open-ended. I welcome this measure. It is rather unusual to see such a measure in primary legislation.

The second point relates to the scope of the review. I prefer an open-ended scope. I agree with Senator Katherine Zappone's requirement that the review should assess the issues in terms of compliance with standards. However, I note her use of the words "in particular". In legislation these words are critical. Why should there be a particular scope rather than an examination of the practical impact of the legislation on the lived experiences of the people for whom it is designed as well? That is a critical part of the review also. Why are we not providing for that in particular as well as the provision for compliance issues? The danger of listing specifics that the review should cover is that we leave out things that are equally as important. It would be better to make provision to commence the review, carry out the review and hold a debate in the Houses on what the review should encompass when it is being commenced, but we should examine all aspects of the legislation and its impact on people in particular.

It is welcome that the Government has tabled a series of amendments. It has met some of the arguments we put on Second and Committee Stages and this is good. It is not a perfect Bill; it is a work in progress which I certainly understand. We did a good deal of work on it the previous day. I believe we have come as far as the Government is prepared to go. Perhaps I am wrong, but I doubt it. For that reason, I did not resubmit my amendments. The principle of one of my amendments was accepted, for which I am grateful . I am particularly grateful that the Government took on board the question of medical evaluation. That was important and I am pleased the Government has seen fit to do this.

Of the two amendments in question, Senator Katherine Zappone's seems to be preferable because it specifies the indices by which the report is to be marked and evaluated and so on. However, that does not prevent such criteria being brought into play during the review of the situation.

I have other commitments this afternoon which I did not see fit to cancel because of my feeling regarding the position of the Bill at this stage. By and large, we have come as far as we can with the Government and I reckon extensive argument is redundant. It is welcome that we have made a degree of progress. That is very good. I realise some of my friends in the Visitors Gallery will be disappointed, but this is a work in progress and I look forward to the completion of this work in a speedy period.

I was tempted to get up and say that in my long experience as a Member, Governments generally have not tended to take account of specifics, but I am not going to say that. However, I do have a certain sympathy for the remarks of Senator David Norris. I acknowledge that the Government has moved on this issue. It is an important acknowledgement by the Government of the breadth of the argument on all sides of the House on a Bill with which those of us on this side of the House are not altogether satisfied. We believe inherent flaws are contained in the Bill. It would be positive if the arguments put forward by Senator Katherine Zappone were to be included. However, Senator Ivana Bacik made a valid point about straitjacketing these measures and specifying that particular issues need to be looked at. I agree with her. I have been discussing with my colleague, Senator Averil Power, how the use of the words "in particular" in the amendment carries some considerable weight in that it indicates an acceptance that a review of the operation of the legislation should be carried out. Senator Katherine Zappone made an argument about what is required under this amendment.

Like Senator Jillian van Turnhout, my main motive in speaking is to get some clarity from the Government and the Minister of State on how he sees this review unfolding. The chances are that although the Minister of State will be in the House, he may not be the Minister of the day when this is coming up for review in two years time. I imagine his talents will have been widely recognised and he will have moved on upwards and whatever.

He will be in the Cabinet.

That is why the argument being made now is relevant. We do not know what the circumstances or the environment will be, or who will carry out this review in two years time. It may be helpful for the Minister of State at least to outline his thinking on what type of review he envisages. Having put forward an amendment, he must have some arguments to sustain it. It might be helpful to the House to hear them in the context of Senator Katherine Zappone's amendment.

Senator Katherine Zappone may not like me for saying this, but, generally speaking, governments tend not to go into specifics when it comes to proposals of this nature. They like to leave things open-ended and to take the view that a review means a review. Senator Katherine Zappone has put forward important arguments with a specific focus on international benchmarking. Senator Averil Power raised the question, and I agree with her, of who is to know what best practice will be in two years time in the other countries that have existing legislation which might be deemed helpful to the review. That is why I believe it is important for us to seek reassurance and for the Minister of State to assuage those of us who have put forward the amendment by setting out the thinking of the Government in respect of the criteria that will be laid down for the review and whether the Government accepts in principle the argument Senator Katherine Zappone has put forward.

I welcome the amendment tabled by Senator Katherine Zappone and others. I attended a human rights day in Galway last Friday week with Professor O'Flaherty who has since written an interesting piece on the Bill in The Irish Times. I was struck by the fact that he called this a bad law. Those are strong words. He took the view that it fell far short of where we could be. I have heard that point made in the House. I participated in the debate on Second Stage but, unfortunately, I could not be here on Committee Stage. I cannot ignore his words.

He said the Bill is out of line with international good practice, at odds with the country's international human rights commitments and falls far short of what it should be honouring, namely, the right of everyone to be recognised in his or her gender of choice and for members of the transgender community to live as who they are and to be welcomed as the people they choose to be. That principle is enshrined in international human rights law.

I welcome Senator Katherine Zappone's amendment because the Bill needs to be improved. A review, within the timeframe she suggests, would be welcome. Such a review must be assessed in the context of international best practice and with regard to the legislation's compliance with national, regional and international equality and human rights standards. I would like the Minister of State to respond to the views of Professor Michael O'Flaherty that this is a bad Bill. I put it to the Minister of State that, at the very least, we must remain cognisant of the need to review the legislation in as short a timeframe as possible.

I must first record my support for the Minister of State regarding the way in which he has accepted those amendments he has been in a position to accept. I must also indicate my support for Government amendment No. 7. When we begin to refer to international best practice, etc., we become involved in debates regarding what is best and what is not, who thinks what is best and so forth.

I am going to support the Bill as the Minister of State sees fit to amend it. In doing so, however, I wish to place on record the fact that we are at the end of a month-long process of debate and genuine engagement with the Minister of State and his Department. That debate has been characterised by significant and heartening cross-party support for a Bill that was long overdue. It has been a debate through which members of the transgender community and their supporters have sat week after week watching and listening while we make some critical and life-changing decisions on their behalf. Those people are present again today. However, what should be an occasion for great celebration feels like an opportunity lost. As Professor Michael O'Flaherty, to whom Senator Healy Eames just referred, said last week, it is an "avoidable shame that the Bill is being adopted without significant amendment". With the exception of one or two amendments, the Bill will leave the Seanad in much the same format as it arrived, despite the best efforts of Senators and brave and hardworking transgender citizens and their supporters who have outlined their case with clarity and pride.

In introducing any new legislation, the role of the Government is to shape public policy, provide leadership, anticipate and be ahead of public demands, particularly in the area of citizenship and human rights. The role of the Government is to provide a progressive legislative framework that will shape public policy decisions for decades to come. All of these aspects are conspicuous by their absence from this Bill, which neither leads nor is progressive. In fact, it emulates what is at best conservative and at worst regressive in the legislation of other jurisdictions. The Bill shows scant regard for the Yogyakarta Principles, which are widely considered by governments, legal experts, international human rights bodies and many national courts as an authoritative legal statement. In drafting legislation such as this, politicians and civil servants are duty bound to expand rather than limit the possibilities of law. There is an onus on them to broaden rather than contract a full examination of a Bill's objectives and consequences. While the objectives of this Bill have been considered by those drafting it, the full consequences of it have not.

If the Bill is passed by both Houses - it is my hope it will be - and enacted in its current form, it will build in further inequalities for trans persons because some of them will be legally entitled to apply for gender recognition certificates while others will not. Children will be obliged to wait until they are 16 and married persons will have to divorce before they can obtain certificates. It is a deception of the highest order and never have the words "the letter of the law versus the spirit of the law" been more apt. As one LGBT Noise activist put it, the Bill is "surface deep". Despite the fact that I am placing these criticisms on the record, I remain 100% behind the Minister of State in wanting the Bill to be passed today. I know how hard he has worked on it and I do not want him to take the criticisms I am making as a reflection on his work. I deeply appreciate what he has done and I will support him today, regardless of what happens, because he has taken great strides.

I do not wish to interrupt, but on Report Stage the rule is that we adhere rigidly to the amendments under discussion. In the opinion of the Chair, the Senator's contribution would be more appropriately made at the end of our deliberations on the amendments.

I am quite prepared to set them aside if that suits the Chair.

The Senator will have an opportunity to speak to the Bill on Fifth Stage.

I support amendment No. 7 as opposed to that put forward by Senator Katherine Zappone. I do so because I am of the view that the amendment will be accepted in both Houses. On that basis, I wish to support the Minister of State. We fought hard to get a two-year review period put in place, achieve adherence to international best practice and the various other goals to which amendment No. 1 refers. However, I am a realist. The international best practice that suits the current Government may not suit the Government that succeeds it and such practice may not be what we will need in the future. The amendment brought forward by the Minister of State will tie us into carrying out a review two years from now and will oblige the Minister, not later than 12 months after the legislation's commencement, to make a report to each House of the Oireachtas. That does not happen and we do not have factual evidence - to the degree that we would want it - available to us. I support the Minister of State in respect of amendment No. 7 and I deeply regret being obliged to go against amendment No. 1 in the names of Senator Katherine Zappone and others.

I thank all of the Senators for their comments. This is a very important Bill and it should be assessed very carefully. Senator Jillian van Turnhout referred to the review being a box-ticking exercise of merely listing the number of certificates issued. I do not see it as such. This Bill will have a life of its own. During one of our previous debates, reference was made to the lack of in-depth research carried out in respect of and consideration given to the matters to which the Bill relates. This legislation is mutable and, therefore, it will be capable of being changed over time. Senator Paschal Mooney asked me to indicate what form the review of the legislation is going to take. I foresee a line-by-line review taking place within two years. In addition, each section will be reviewed in terms of its impact and there will be an assessment of whether the Bill has achieved what was envisaged. The review will not take the form of merely listing the number of certificates issued. Such an exercise would be disingenuous. It would also be disrespectful to the Tánaiste, me and both Houses.

One of the very strong arguments I made during the earlier debates was that we had been waiting 20 years for this legislation and that we certainly did not want to be obliged to wait a further 20 for a review to take place. That is why it is so important that amendment No. 7, which imposes a timeframe regarding the submission of a report to both Houses, was drafted. I firmly believe that the Government amendment is the better of the two. I am acutely aware of the fact - a number of Senators pointed this out - that we do not know who is going to be in government in the future. Senator Paschal Mooney has stated the House is aware of my intent, as Minister of State, but that there could be a very different Government in office in the coming years.

There is no agreement on what constitutes international best practice. As a result, a future Government would be charged with determining the nature of such practice. I am of the view, therefore, that our line-by-line, section-by-section review of the entire legislation offers the best way forward. As stated, the review will not involve listing the number of certificates issued or the amount of time it took to issue them.

It is about the spirit of the legislation, the way it impacts on the citizen and whether it does exactly what it says on the tin.

This is fast-moving and people are only coming to the issue now for the first time. As Senator Jillian van Turnhout said to me earlier, when we were talking about this issue in the past, many people had not done in-depth research. People outside the House have not been fully informed about it, and this has been an educational exercise. Do I envisage reforms in this area in the next two years? It is more than likely, but I believe this is ground-breaking legislation. The Tánaiste has done an excellent job in bringing it forward, with great assistance from many people outside the House. Members of the Seanad have worked closely with her also. I am not accepting the amendment but rather proposing acceptance of Government amendment No. 7.

I thank the Minister of State for his straight response, which he has always given to Members as well as those outside this House. I am not disagreeing with him that this legislation is ground-breaking. I apologise that when I began my remarks this afternoon, I did not welcome again the fact that he had put forward this amendment. When he said on Committee Stage that he would accept my amendment in principle, I was flabbergasted and thanked him, but I do apologise. It is appropriate to express my thanks and say it is great that the Government has brought forward an amendment in regard to the principle. As Senator Bacik said, we are not in disagreement in regard to the principle.

I found Senator Ivana Bacik's response and those of all colleagues interesting, but the Minister of State's was especially interesting. He began his comments by referring to the timing of the review. I said that the timing might not be important, but that is important. I acknowledge that and also that the Minister identified that 12-month period. However, I do not know that I would be in agreement that the Minister of State's amendment is better.

Poor choice of words.

I still believe mine could be better than, or at least equivalent to, the Minister of States's. It is important to have guidelines and benchmarks. I accept what Senator Paschal Mooney said - namely, that that is not standard practice. That does not mean I would not argue for it.

Senator David Norris said in response to Senator Ivana Bacik that if we started naming certain guidelines or benchmarks, we might not be inclusive of everything. It does not prevent us from bringing in other measures. I also believe if we are looking at compliance with international human rights law, regional law or best practice, to which I will return shortly, it would necessarily include that. That comes out of the practical experience. It is a reflection on the practical experience of the suffering and the challenges, and perhaps the freedom, in terms of the ways in which others experience different legislative measures in other jurisdictions. I challenge some of what Senator Ivana Bacik has said, but I do hear and accept some of the good points.

The Government amendment states: "... not later than two years after this section comes into operation, commence a review of the operation of this Act ...." and the Act, at least for the moment because we are not yet dealing with those sections of the Bill, currently excludes children as we define it and understand it in the way we would wish.

I would be concerned about the comments in regard to international best practice.

There is a debate and there are different theories and understandings about international best practice, but that does not mean that we should disregard it. I am a little concerned that there is not agreement about that. There are trends and gatherings that identify that practice, such as the Yogyakarta Principles, which are not the same kind of hard and binding law as others. I would question this.

I would love to have heard the Minister of State say - he still might be willing to say it - that even though he might not be the Minister involved, there would be a full review, with attention to international human rights standards.

Is the amendment being pressed?

Excuse me for asking, but does the Minister of State respond to what I have just said? Do I have to decide before I hear anything more from him?

The Minister of State did respond.

I do not know. I do not know the procedure.

If he wishes, the Minister of State can briefly respond.

The Minister of State might respond, even just to my last comment.

The Senator might have misunderstood what I said. There is not agreement on what is international best practice.

We should not take it-----

No. The Senator may have heard it that way. I think I explained it very well when I said that this is living, breathing legislation and that people will have further understandings.

In terms of the review - I hope I will be here again in this particular role, because it is challenging - I would embrace the opportunity to review the legislation to see how it is operating, but it is a full review of the sections. New sections may have to be inserted in two years time. That is what I said. I welcome the idea of a review in two years time. We will report in 12 months, but it will be a wide-ranging review.

I apologise to Senator Fidelma Healy Eames for not responding to the point she made; I will do so now. She referred to Professor O'Flaherty's article. The principles were developed by a group of human rights activists in 2006. They were not an international treaty or otherwise binding on the State. They are not intended to be formally endorsed by states and are not being informally endorsed by Ireland. I believe the professor was the rapporteur of that group, and we need to put that article in context. I hope I have cleared up that element.

If ground-breaking legislation such as this is to be reviewed, it should be reviewed in its entirety. Does that explain it clearly to the Senator?

Yes. I thank the Minister of State.

Amendment, by leave, withdrawn.

Amendment No. 2 is in the names of Senators Jillian van Turnhout, Fiach Mac Conghail, Katherine Zappone and Mary Ann O'Brien. Amendments Nos. 2, 3, 5 and 26 to 28, inclusive, are related and may be discussed together.

I move amendment No. 2:

In page 5, between lines 21 and 22, to insert the following:

“ “child” means a person under the age of 18 years in respect of whom a gender recognition certificate has not been issued;”.

On 17 February, on Committee Stage, I elaborated on why I felt so passionately about this issue. It is very troubling for me that the Bill does not provide a mechanism, even a temporary mechanism, for children under the age of 16 years. I would say "under the age of 18", because if we look at the process for 16 to 18 year olds, in effect I am talking about under 18s. I gave the example on Committee Stage of the six year old child who has clearly articulated his preferred gender and which has been fully embraced by his parents, friends, extended family and community. Is this young child, a boy, going to be forced to go through a girls' school wearing a girl's uniform and listening to others use the wrong name and pronouns in order to gain access to the education available in his locality? I believe that is what we are doing to children in these circumstances, and I find it difficult to stand over legislation that is not just silent but is ignoring children. I believe we are going back to the practice in the past of telling children to sit in the corner and wait because we adults will sort all of this out. We will not give them a voice.

I had a choice. I could have resubmitted the amendments I put forward on Committee Stage, which I was tempted to do because I still strongly believe in the amendments I put forward, but I decided, under the principle of trying to move on, to put forward a set of compromise amendments on an interim gender recognition certificate because I believe that might be a way, in the interim and before the review in two years' time, to allow people understand what we are talking about here and to appreciate what we are trying to do.

On 17 February I talked positively about why I thought that, but today I want to deal with some negative issues that have been raised with me since Committee Stage.

I am not talking about surgery or any surgical intervention on a child. It has been said that is to what I have referred. I am talking about allowing a child to identify as and live his or her life as the gender he or she wishes to identify as. I am not referring to Munchausen syndrome. It is a very serious child protection issue, but it is very limited. In my voluntary life I am a trainer in child protection for the Irish Girl Guides and we used to include Munchausen syndrome as part of the training. It is such a specialised and remote field of study that we do not include it in the training because our leaders would not identify it. If there is a case of Munchausen syndrome, it should be dealt with as a child protection issue and we should not shy away from doing something in this Bill on this occasion. It is an issue and we should deal with it.

This has made me think of my childhood because the road on which I grew up had many children, but because of my age cohort many of my peers were male. Many people called me a tomboy; I climbed trees and got involved in little fights. That did not make me feel in any way a boy. I never felt I wanted to go to my brothers' school or identified as a boy, even though people called me a tomboy. I am not talking about a child in that way. Rather, I refer to children who clearly align their gender. I always felt I was a girl and I would have hated to have been in the reverse situation. That is what I am trying to address, namely, being forced to live a life which is not how one feels.

I tried to think about what I would have done if I had wanted to live my life, go to my brothers' school and be part of that. It would not have been me and it would have had an effect on me. I would have become introverted or extroverted, but the effect on me would have been significant and immense. The reality is that is what we are doing to children who clearly align their gender. As a society we cannot quite catch up with that yet for some reason.

On Committee Stage, the Minister of State referenced a figure of 20% which was given out during the hearings of the Oireachtas committee by Dr. O'Shea. With the greatest respect, the Minister of State was being a little selective. I went over the transcripts of 23 October 2013. Dr. O'Shea did use the figure of 20% and said:

Before puberty there is a reported 20% desist rate, which is change of mind after the process moves forward. Following puberty, this rate falls to less than 5%.

The figure of 5% is much more in line with every modern study we have which has the figure at below 4%. I do not think throwing out the figure of 20% is an accurate way of examining the issue. The figure is much lower and that would happen no matter what legislation we had in place.

This issue is very clear. Dr. O'Shea, as an endocrinologist, went to say:

This would protect a minority of patients within the overall group who think they have the condition but who do not. Self-declaration alone would support this minority in what is a personality disorder and potentially worsen their outcome. Legislating for any minority is difficult.

He was not telling us not to legislate. In fact, in terms of what is happening in respect of puberty and blocking and hormone therapy, the only two endocrinologists in Ireland operate in Loughlinstown and Crumlin hospitals. They are already, as practitioners, capable of sanctioning such medical treatment for children with parental consent.

The State allows, with parental consent, for medical hormone therapy and blocking. None of that comes within the scope of what I am asking for. I am asking for a certificate, because we know the school system is driven by what is on a birth certificate which cannot be changed. I am arguing for what I hope is common sense to prevail, but the reality is that does not always happen. We have spent quite a bit of time in this House trying to legislate for common sense and to allow it to prevail.

I am arguing for an interim gender recognition certificate for children under 18 years of age. It would have no impact on the current practices or what medical practitioners are doing. It would ensure that we are abiding by the Constitution and international human rights in respect of allowing children to live and be reared in their preferred gender. In the event that any uncertainty remains, let me again stress that there is nothing in the new amendment I have tabled or the original suite of amendments I tabled that will see children under the age of 16 years having automatic rights or rights independent of their parents or guardians' consent to undergo medical transition processes or surgery.

Everything I have said involves the parents and child being in agreement, yet we cannot catch up with that agreement. I am asking why we cannot accept it. We should ensure we have a way of dealing with children on a case-by-case basis. On Committee Stage we raised the issue of the Non-Fatal Offences Against the Person Act 1997, which allows 16 and 17 year olds to choose, if they wished, to seek medical services, yet it seems we are not able to introduce a certificate. A certificate would allow people to calmly live out their lives, as they wish, as a child. There would be nothing irreversible at stake. It could all be reversed as needed, but I do not see that happening. We have to move on.

I have read many different reports and articles. On 10 February there was an article in The Guardian written by a mother who did not give her name. She is very involved in a group which has a wonderful name, Mermaids, in the United Kingdom. It is a support group for gender variant children and teenagers and their families. She wrote about her child's experience. She said:

My seven-year-old child, although born male-bodied, has expressed herself as a girl since she could walk and talk. That expression translated into an articulation at age four that she was a girl "stuck inside the wrong body". Reinforcing boyhood for our child began to lead to distress, upset and anxiety. What did we do? We kept reinforcing boyhood. What happened then? We found ourselves with a five-year-old who talked about wanting to die rather than be a boy. A five-year-old with a fascination for butterflies and caterpillars and mermaids who began talking about suicide ... Our child lives as a girl now and her school describes her as "calm, mature, bright-eyed and intelligent". How did we get to that point? We listened to the child. We educated ourselves on the facts at hand and we facilitated the child's outward expression of her own assertion about her identity. This has led to a happy child, well adjusted and thriving, engaged with an education and well liked by peers.

That is what I am trying to argue for. I am trying to argue for that seven year old girl being able to live her life as she wishes. Her parents saw her distress in the short period from age four to seven years and what they were doing to their child.

In Ireland we have a system of single sex education. We can all agree that a child should be allowed to attend a girls' school. We know that when an application is made, schools ask for birth certificates and the seven year old child to whom I referred would have a birth certificate stating she is male. She would be told she needs to act like a boy and that would reinforce that. It is unacceptable that we are doing this.

The legislation being discussed in Malta is very progressive. It will not note gender until a child is 14 years of age. It is an interesting approach. We are not yet at that stage. We do not have the mechanisms in place to minimise the challenges currently faced by transgender children in Ireland because of our segregated school system in the main and the requirement that parents must submit birth certificates for registration. I am trying to argue that where a child has clearly articulated views regarding his or her preferred gender that he or she should be facilitated in achieving this end, especially where all parties agree. I have included protections in the amendments I have tabled. If any other facts come to the attention of a Minister, he or she could revoke that certificate.

I have moved forward on the issue and I am trying to think of the children. We are probably talking about only a handful of children, but I would prefer us to allow common sense and what is in the best interests of the child to prevail. We should allow the views of children and their evolving capacity to be heard when decisions about their lives are being made.

The Minister of State mentioned the Yogyakarta Principles but, particularly in the area of children, they transpose the language of the UN Convention on the Rights of the Child, which Ireland has ratified. Ireland will be before the UN next January, and the NGOs and Ombudsman for Children will be before it in June. The convention states:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

I cannot understand why children are absent from the Bill.

I second the amendment. Whatever about any of us being present in two years time, let us hope Senator Jillian van Turnhout is in one of the Houses to speak on behalf of young transgender people. The amendment is an innovation coming back to the Government based on the same principles as the Senator's earlier amendments and very much grounded in research, practical experience and the circumstances of her own education. She is trying to offer another way. It includes the definition of a child and for these reasons I absolutely and fully support it.

As I stated on Second and Committee Stages, my preference would be to allow access for those over 16 years to be treated as adults using the procedures set out in the Bill for those aged over 18 and to allow access for those under 16 to a full gender recognition certificate through the court process. I can see Senator Jillian van Turnhout accepts that while we have made this argument at earlier Stages, the Government does not seem willing to move on it. In this spirit the Senator has drafted this compromise.

In trying to decide on the difference between applying to the Minister and a court, while we often want to keep matters out of court and not put people in a court settomg, I would have some concerns about a ministerial process because there is less provision to be heard in writing to a Minister and asking him or her to consider the case. The Minister will not sit down with the person, talk it through and give him or her an opportunity to advocate, have a conversation and be part of the process. I am a little concerned about this, whereas at least in court everybody has a right to be heard and the courts are bound by overall principles with regard to the best interests of the child and listening to children in proceedings which affect them. For this reason, my preference would be for a court process.

We have re-tabled the amendments I tabled an Committee Stage which we did not push to a vote. We hope the Minister of State might, having reflected, take a more positive approach today. Amendment No. 9 is the Fianna Fáil amendment on deleting the reference to the age of 18 for a person applying for a gender recognition certificate in his or her own right and replacing it with the age of 16 years. Amendment No. 25 is the Fianna Fáil amendment to allow those under 16 yers access to a full gender certificate through the court process.

The process the Minister of State has set out in the Bill already contains many safeguards, as somebody going to court needs to have, in the first instance, parental consent and then must convince a judge it is the right thing to do for the individual child. I do not see why the Government would be worried. It would be a fair process. The best interests of the child would be paramount.

Senator Jillian van Turnhout outlined the experiences of some transgender young people who have been denied recognition and the horrific impact this has had on them. I have also learned from speaking to transgender young people and their parents who feel they have come on a journey with their young person. They had to learn a lot to really understand where their child or teenager was coming from and come to a position where they understand and support them. We now have incredible advocates in TransParentCI and other groups. Parents are passionate about this because they see the impact our failure as a Legislature to support their young people is having on their son or daughter.

As Senator Jillian van Turnhout stated, sometimes what makes the difference with regard to people's happiness is simply recognising who they are, facilitating them at school and facilitating them in having a gender recognition certificate. It is not much to ask of us to give somebody an opportunity to have his or her true gender identity recognised, given the impact it has on the young person. It is a huge gap in legislation. It is unfair to leave out this especially vulnerable group of young people, many of whom without support and true recognition struggle with huge mental health problems and even, as Senator Jillian van Turnhout stated, suicidal thoughts and tendencies. The incidence of these mental health problems is high among LGBT people, and particularly high among transgender young people. We have an opportunity with this legislation to address it. As the Bill stands, we are not doing so and this is a huge shame. It is a major failing in the legislation. When we come to later amendments I will push them, to allow full access to a gender recognition certificate. If the Minister of State were willing to accept Senator van Turnhout's proposed compromise, we could work on it and I might withdraw my amendments. I would like to see us do something for these young people because it is so wrong that we are not.

I support, in particular, amendment No. 12 tabled by Senator Jillian van Turnhout and others on an interim gender-----

We are discussing amendments Nos. 2, 3, 5, 26 and 28, not amendment No. 12.

Excuse me, that is what I am discussing. My apologies. I support the amendment for an interim gender recognition certificate. I am struck by the knowledge and awareness of young children about their need to live in their preferred gender. I do not know how these children survive in society and in school without any recognition they are transitioning or have transitioned. The amendment is a positive measure. On Second Stage I put on the record my experience of transgender teenagers. We are also speaking about much younger children, as Senator Jillian van Turnhout listed. My experience from when we did the early school leaving study was this group is at risk of leaving school early, but the issue is much deeper than this as the group is also at risk of suicidal thoughts.

This is a really good amendment. It is helpful and acknowledges the children's need. It recognises their identity and at least it would help them along on their journey. The first line of the amendment states the parent or guardian of a child to whom this section applies may on behalf of that child apply to the Minister; therefore, the parent would be with them. It is important that we listen to the young people. To have to live 16 years and not have one's true gender recognised is incredible. It must be torture. Those of us who have never experienced it must listen. A very good middle ground has been proposed in the amendment and I am happy to support it.

I thank Senator Jillian van Turnhout. We have had extensive engagement inside and outside the House on this issue. I certainly believe the main aim of the amendments is to deal with schools' admission policies, although they are not solely aimed at them.

In that regard, the schools do not form part of the Department of Social Protection's remit but I have engaged with the Minister for Education and Skills. We are all concerned about the lived experience of transgender children in schools. I will confirm three relevant points on which we have worked over a period to improve the lived experience of transgender children in the school system.

Before I do, it was an interesting point on the birth certificate. We have inherited a school system with which probably none of us is happy. I note, through my own work in my constituency, that the birth certificate has become less relevant and the baptismal certificate is what is sought, which is causing even further complications and anxieties among parents. It is becoming difficult. While we have inherited a system 92% of which involves the separation of boys' and girls' schools, and the majority of which are religious schools, it has become excessively difficult for parents to deal with. It is an issue that will become ever more apparent in the coming years.

On the lived experience of transgender children in schools, I will confirm three points of relevance. First, the Government has introduced compulsory anti-bullying procedures for all schools which for the first time require them to have a policy to tackle transphobic bullying. The Minister for Education and Skills continues to explore how the impact of these procedures will be monitored and is happy to discuss that further. Second, the Minister for Education and Skills, Deputy Jan O'Sullivan, recently met the parents of transgender children and has agreed to meet the Transgender Equality Network Ireland, TENI, over the next couple of weeks to discuss the lived experience of such children in schools and what policy options may be open. Third, following on from the meeting with TENI, the Minister is happy to convene a round-table discussion with all the educational partners on this topic. That will allow for the issues faced by transgender children and young people to be discussed in detail with the management bodies, with trade union representatives, students and parents. I trust this information is helpful.

What we all want to achieve is that the lived experience of children at school, complex as it is because of the school system we inherited over decades, is as positive as possible. While Senator Jillian van Turnhout may not be fully happy with the response, she will recognise that there has been a body of work undertaken by herself and many Senators here to improve the lived experience of transgender children in the education system. It is far from perfect. However, the three strands I laid out form a mechanism to work to improve that lived experience. There are many complications involved.

I spoke to Senator Jillian van Turnhout earlier about the number of Departments and how the Department of Justice and Equality and other areas all operate within the different sections. When one goes into it further, there are complications, even with the interim gender recognition certificates, in introducing a new certificate, such as when it would be finished, would we maintain two separate registers, would the interim certificate remain valid past the age of 18 years, how would we ensure the rights of the children would be protected in it and even, as to the relationship which Senator Averil Power raised clearly, how could the Minister possibly make a decision in that regard. There are many elements involved.

I will take guidance from the Chair and Senator Jillian van Turnhout who worked with Senators Katherine Zappone and Ann O'Brien in drafting these amendments. I would be happy if Senator Jillian van Turnhout wants to proceed, amendment by amendment and section by section. I have detailed notes and I would be happy to sit down and go through them. There are many complications in creating an interim certificate. If we were to opt for that mechanism, there is much consultation that would have to take place and it would take a substantial amount of time. In total, we would have to work across nine Departments and sections in this regard.

While I recognise the work the Senator has done, it could not have been possible in the time allowed to her to examine all of the unintended consequences of an interim certificate, such as how panels would be involved, who would make the decision and who would assist the Minister in making those decisions on the devolved powers. I reiterate what one might call the three-legged stool, namely, the three elements on which we can work with the Department of Education and Skills. I spoke to the Minister, Deputy Jan O'Sullivan, as recently as this morning and she is happy to be proactive, to get involved quickly and to work out solutions to the many issues that concern everybody. As I outlined, the Minister for Education and Skills has already agreed to meet TENI. We can work out a structure and a better outcome for transgender children through the school process. It will not be easy or simple, but there is the will and determination, both here in this House but also with the Minister for Education and Skills, to resolve many of those issues.

I thank the Senators for the work they have carried out on that element. I certainly will be happy to assist them to work to a satisfactory outcome.

I thank the Minister of State. First, I thank all of my colleagues who have been supportive of this issue. As I stated to the Minister of State earlier, when I first came to this issue a few years ago, I thought of adults and it is was only as I went deeper into the issue I realised how this was a children's rights issue and not only an adults' issue. Obviously, we will discuss the importance of getting it right for adults, too.

I greatly appreciate the engagement the Minister of State, his officials and officials from other Departments have had. Obviously, education is not the only part of the child's life but it is extremely significant. It is welcome that the Minister for Education and Skills, Deputy Jan O'Sullivan, told the Minister of State to state here today that she has agreed to meet TENI in the coming weeks and about bringing together a round-table discussion with the education partners to progress this issue. I would like to see the issue being progressed.

Even in the past few weeks, I have probably talked more about this to more of those I know. I am concerned about where somebody asks what harm can it do if we do not do anything at present, what is the problem and why I will not relax for a while on it. The reality is that we know the effects it will have on children. I gave the example from a mother. We are aware of the effects on children when we do not deal with issues of identity and we do not allow them to live as who they are - whether it is gender identity or other issues. We are aware of the self-harm, depression and substance abuse. They drop out of education. There is bullying and peer rejection. There are all of those issues. There will be significant harm if we do not do this.

It is for that reason I propose not to press the amendment today, but I am not letting the issue go. As I said to the Minister of State before today when we met, I intend, as there will be social welfare Bills coming through this House, to give it three months grace, but then in the next social welfare Bill that comes into this House I will table a clear suite of amendments to deal with the issue of gender recognition of children. I hope during that period I can engage with the Minister of State and the other Departments involved. I understand we must look at unintended consequences to ensure we get amendments right but, equally, I cannot let it go. A fair way is to say - I am saying it now because what I do not want to happen when a social welfare Bill comes before us is to be told it is outside the remit of that Bill - I will be clearly putting forward this suite of amendments that we address children's rights. However, I want to see this Bill proceed. I look forward to hearing the outcome of the Minister for Education and Skills in progressing those issues because perhaps we will find that there is another way that we can do this. For me, the principle of it is allowing children to identify as they see themselves. We need to meet them where they are. That is what we need to do. If I can find another way to do this in legislation, we will do it. As I stated, I will withdraw the amendments today, but I will be back. I will give three months to allow a period of consultation with the other Departments. Let the work of the Department of Education and Skills move forward, but let us not forget children.

Let us come back to this issue when maybe everybody will have had a chance to catch up and I encourage people to carry out research. Once a person becomes immersed in this issue and reads the case studies, one becomes convinced that we have to do something. Part of me asks why common sense cannot prevail. I must find a way to put into legislation that common sense will prevail. That, for me, will add to the cultural attitudes and changes that we will have as a society to understand the importance of allowing each one of us, including me and many colleagues seated in the Visitors Gallery, to live lives in the way one wishes to be identified. All we are asking is that rights and equality are equal.

We agree that the major impact for children is how the education system treats them and deals with this matter. As the Senator said when we had one of our exchanges, it is much easier when a principal deals with this matter, becomes informed and that knowledge is shared across the system. Only a tiny minority of schools have dealt with this matter and discovered how it is managed when that information is moved across. The vast majority of interactions in regard to this matter take place in schools and that is where it has to be dealt with, which is right and proper. I firmly believe the Department of Education and Skills is better placed to deal with this matter rather than it being dealt with in the current Bill. Let us by all means see this. I know this will happen and will happen quickly. What will also happen is that there will be a period where we will have to have that interaction with the educational representatives, both the boards of management and the teachers' unions, and the parents. There is a job of work to be done but the Minister is well prepared and capable of doing so. I thank the Senator for not pressing the amendments.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

Amendments Nos. 4, 6, 8, 12, 13, 19 to 23, inclusive, 30 and 31 are related. Amendments Nos. 12 and 13 are physical alternatives. Amendments Nos. 20 to 23, inclusive, are physical alternatives to amendment No. 19. Amendments Nos. 4, 6, 8, 12, 13, 19 to 23, inclusive, 30 and 31 may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 6, between lines 2 and 3, to insert the following:

“ “general medical practitioner” means a medical practitioner who is registered in the Specialist Division of the register of medical practitioners under the medical speciality of “General Practice” or in the General Division of the register of medical practitioners;”.

I will address my remarks to amendments Nos. 4 and 6, in particular. I guess I do believe politics is the art of compromise. As hard as it is at times, I acknowledge compromise must happen and that is what these amendments are when it comes to the inclusion of general medical practitioner in the definition of the primary treating practitioner when it comes to the people who are there as a medical presence to confirm the identity of the change of trans people. These two amendments are a compromise. We have all spoken at different points about how the ideal or best Bill would be that we would not require any kind of a medical presence and that it would be enough for a statutory declaration by the person involved that they have chosen to transition and that is who they understand themselves to be.

It might be helpful to say a few words more about what that might look like if we had a closer acknowledgement of the self-determination of trans people embedded in our law. The Bill that I put forward with my colleagues, Senators Jillian van Turnhout and Fiach Mac Conghail, a while ago and in which I was assisted in writing by FLAC, TENI and other academics included an example of a kind of declaration or what a person would say to fulfil requirements to get a gender recognition certificate. While I am not going to read it all, it is important to hear the kinds of words that person would say:

I, ________________, make an oath, do solemnly and sincerely declare and say as follows:

1. It is my settled and solemn intention, formed after careful consideration, to live permanently as a person of the male or female gender.

2. I wish to be treated for all purposes as a person of the male or female gender.

3. I want to have these details set out in this statutory declaration recorded in the gender recognition legislation.

4. I make this solemn declaration conscientiously believing the same to be true by virtue of the Statutory Declarations Act 1938 and pursuant to this Act.

I presume the Minister of State and the officials, under ministerial direction, will compile something similar to what I have outlined in terms of declaring a statutory intent for the change.

As we know, with the Bill, as it stands, there will be a medical presence, which is a compromise. We have heard the arguments. We all want the Bill to go through and we accept that element, with the greatest respect. I have the greatest respect for the argument made by the Minister of State. Why can a GP to whom trans people go not be one of the primary treating medical practitioners? We usually go first to a GP for professional support to improve our mental or physical well-being. I am deeply grateful that the Government has accepted Senator Marie Moloney's amendment about medical evaluation in this respect, as I am to Senator Ivana Bacik and others on the Government side for agreeing to make it consistent throughout the Bill. If it is not a medical evaluation, however, and instead some form of straightforward one-page statement that the medical person goes through with the trans person to confirm their identity as they understand it, I do not understand why a GP cannot be included in the list along with endocrinologists and psychiatrists. That is why these amendments have been resubmitted. The Minister of State has indicated that if we were to include general practitioners, they would need to be consulted before being included. I think it is reasonable to say that and to require same.

As the Minister of State will also be aware, late this afternoon we both received a copy of a letter that was written to the Tánaiste by Mr. Kieran Ryan, CEO, Irish College of General Practitioners on these amendments. It reads:

Re : Definition of 'primary treating medical practitioner' in the Gender Recognition Bill 2014.

Dear Tanaiste,

The ICGP is aware that there are proposed amendments to this bill relating to the definition of "primary treating medical practitioner".

The ICGP would encourage you to add General Practitioner to the definition of "primary treating medical practitioner" for the purposes of Certification of an individual's gender transition. GPs are more than capable and qualified to fulfil the certification duties under this piece of legislation. GPs will most likely be familiar with the circumstances of the applicant and are well placed to verify an individual's medical transition. GPs are often the first point of contact for transgender people seeking healthcare and monitor the medical transition after transgender people have engaged in specialist services. This would be of great benefit to applicants as they are more likely to have had interactions and engagements with a GP in their local area.

We hope you can take the above position into consideration in the preparation of the Bill. Should you have any queries then please do not hesitate to contact us.

I feel a great hope with regard to that statement that came from the Irish College of General Practitioners. It is a tremendous statement of affirmation that supports the advocacy and desire of the trans community. I hold out great hope the Minister of State may consider these amendments in that regard. The sentiments expressed in the letter are extraordinary and is a great example to set. It is wonderful to hear such support come from the Irish College of General Practitioners.

In our conversations about this matter the Minister of State has said the Government would need to consult other professional organisations such as the IMO about, for example, what it might be willing to state.

Unfortunately, however, they have not yet been consulted. Would it be possible for them to be consulted prior to the Bill going through the Dáil, although maybe not this evening? I wish to hear the Minister of State's response in that regard. I hope he will also welcome, with me, that statement from the Irish College of General Practitioners.

I formally second amendment No. 4. My preference is to take out the medical aspect altogether and the medicalisation of people, and instead accept a statutory declaration by the individual, as is now best practice in other countries that have legislated more recently. Some other countries are re-examining their laws in this respect. I would prefer if there was no medical involvement at all, as Senator Katherine Zappone said, but if there is to be, it would be appropriate to include the GP.

The letter that was read into the record today is quite persuasive. It states the organisation representing GPs is also comfortable and that GPs would be anxious and happy to play that role. GPs have the most ongoing contact with their patients. We all get sick at some stage or, at least, have some interaction with a GP. Many people have had the same GP for years, some since they were children. The GP is someone with whom patients, including transgender people, have a trusting and positive relationship.

I dispute the need to have a medical requirement in the Bill. Amendment No. 12 seeks to remove all medical involvement. However, if there is to be a medical requirement in the legislation, a GP is the most supportive and least threatening person to sign off on this process. It is therefore important to include GPs.

It is welcome that the medical evaluation aspect is being taken out of the Bill. Many of us, including Senator Marie Moloney, had raised concerns about that on Committee Stage. We asked what exactly that involved; therefore, I am glad that provision has been withdrawn. However, the Minister of State could move more in this respect. If his main concern about involving GPs was that they might not wish to play such a role, or be comfortable with it, that concern has been addressed by the letter Senator Katherine Zappone read. If the Minister of State is not willing to accept this issue, there will be plenty of time before the Bill goes to the Dáil to talk the matter through with the GPs' representative body. It appears from that letter, however, that they seem to be happy enough to play that role. The Minister of State, therefore, has no reason to be concerned and should amend the Bill on that basis.

I welcome the Minister of State. I also welcome our visitors in the Visitors Gallery. The Minister of State has been interacting a lot on this issue, both with us and with the relevant organisations in recent months. I thank him for accepting and bringing forward my amendment and that of Senator Ivana Bacik on the issue of medical evaluation. I did not see the letter that Senator Katherine Zappone read out, but over the last week I took the opportunity to speak to a number of GPs. Some of them had never dealt with the issue and never had one of their patients present with this issue, but they did say they would have no problem in dealing with it. They did not see the necessity of going further and are well able to deal with it. GPs in particular - unless there is a new GP moving into a town - have been dealing with families and children since birth. No one would know people better than their own GP.

I cannot understand why somebody would have to attend a psychiatrist. Are we saying the people concerned have mental health issues? If not, why should they have to attend a psychiatrist? They do not have mental health issues. Some of us in this House might have more mental health issues than they have.

I ask the Minister of State to take on board Senator Katherine Zappone's suggestion that if he cannot accept the amendment today, perhaps he could interact on this issue with the Irish College of General Practitioners and the IMO before the Bill goes to the Dáil. Perhaps an amendment might be tabled to this effect in the Dáil.

I agree with everything that has been said, but I am a realist and have spoken to Members of the Oireachtas around Leinster House. This Bill has yet to go to the Dáil, but if we accept this amendment, the Bill will come back here. A considerable number of Deputies will want to have the cover of medical expertise. It is regrettable but I ask that this amendment should not be pressed at this time. We are taking slow steps and I do not want this Bill to fail under any circumstances. I do not want to give anybody the excuse of saying they were able to walk away from it because of this.

For that reason alone I ask for the amendment to be withdrawn, although it hurts me greatly to have to say this. As everyone who has spoken here today said, this is not a medical or psychiatric condition. We have to deal with 226 people in the Oireachtas but ultimately the most important thing is that the Bill will be passed. I therefore ask the mover of the amendment to reconsider it based on that alone. I feel deeply sorry that I have to ask for the amendment to be withdrawn, but I do not want to see the Bill defeated for the wrong reasons. For that reason, however, I ask that the amendment be withdrawn.

I had often heard that the Upper House had better debates, but I did not realise that we were also more enlightened and well read. Obviously I am learning all the time.

I think Senator Katherine Zappone's amendment is very pragmatic and the letter she read out gives me increased comfort. My preference is that we should not be medicalising in any way. I understand the society we live in and the people I talk to, but I do not understand the need to go beyond a GP. If a GP refers me to a consultant or other specialist, I will take that advice very seriously and will follow it. Why therefore can we not trust GPs? That is what Senator Katherine Zappone's amendment seeks to do.

I would prefer that we would move on this amendment, or get a commitment that it would be acted upon in the Dáil. It is a pragmatic approach and is about trusting GPs, and not going to psychiatrists or other specialists. A GP can refer a patient to specialist services, if necessary. If I go to a GP, I can be referred if needs be. I have great difficulty with the idea of legislators trying to be medical practitioners. As we have a very limited knowledge of medical matters, I trust our medical practitioners in that regard. We obviously have to scope and ensure that certain principles are maintained, but we are not discussing a medical issue. I would prefer not to see such a provision in the Bill, but if we are to see it, let us have a pragmatic approach.

I want to talk about intersex people, something about which I have learned a lot since the start of consultations on this legislation. The Bill appears to fail intersex people, despite the fact that the Minister of State says it will be open to them.

The Bill is more specific to the needs of transgender people, and provision for intersex people appears to be just added on. Based on what I have learned, I am not sure that this is adequate. "Intersex" is an umbrella term which refers to a variety of naturally occurring conditions where a person's biological sex characteristics, including genetic, hormonal or anatomical differences, are not typically male or female. The issue can be quite sad because sometimes people do not know they are intersex until, for example, they have fertility exploration and find out they have no womb. It may be the carrying out of an autopsy which results in the discovery that a person is intersex. It will not have been discovered at birth. Someone may have the XY chromosome. We would normally consider this person male but the person's hormone levels and physical body might be considered more typically female. Alternatively, a person may have XX chromosomes for a female, with high levels of oestrogen and low levels of testosterone, like most women, but may have testicular tissue instead of ovarian tissue. We are talking about quite a number of people. It occurs in 1% of the population.

The issue to which the Senator is referring is more appropriately dealt with under amendment No. 29.

It applies at this stage too because of the medical evaluation provision. I would, therefore, like to speak to it at this stage. The figure of 1% of the population equates to 46,000 people. Many of these people may not know they are intersex. The condition varies. In terms of a medical and psychiatric evaluation, the terminology is not applicable to intersex people. They have not been properly considered in the drafting of this Bill. The psychiatrist's professional opinion is entirely irrelevant to intersex people. There are also questions about whether an endocrinologist is relevant as some intersex conditions require medical assistance but others do not.

What consultation was carried out with intersex people when drafting this Bill? I have no formal or expert knowledge on this issue. However, I am wondering about what has been done. Have intersex people been asked what they think the Government should be doing? There are no advocacy groups in Ireland for intersex people. Transgender Equality Network Ireland, TENI, does a bit of work on this issue but its capacity is limited. It would have been necessary to go abroad to have carried out proper consultation with professional organisations.

I also wish to speak to amendment No. 30 on how intersex people are classified in passports. Many intersex people would prefer that their birth certificate would accurately reflect the biological facts of their birth, that is, they were not born as strictly male or female but instead as an unspecified or intersex person. An X-marker would, therefore, be more accurate. There is no provision at all for this, which is now quite normal in countries such as Australia and Germany. The gender is marked as X where a person falls into the intersex category. In this Bill, the civil registration process does not take this into account.

What has the Government done to establish the needs of intersex people? We are talking about 1% of the population. This is a large percentage. Some 46,000 people is a huge number. I do not think for one minute that that number of people are even aware of it. However, it is quite something for them when they become aware that they are not accommodated in the law.

I thank the Senator. I wish to bring some order to this debate. The Senator was dealing with amendment No. 29. If it is okay with the Senator, I will deal with that issue when amendment No. 29 is under discussion.

I would like the Minister of State to address the questions I asked him. I have much more detail on this issue and I can come back on it.

This issue is dealt with under amendment No. 29. The Minister of State is entitled to some order. Many amendments have been tabled. The Senator can come back in on amendment No. 29.

I will come back in on amendment No. 29, but some of my questions relate to amendment No. 13.

I will answer the Senator's questions but I will do it in reverse order if that is okay with the Senator. I wish to work through this in a logical way. It does not help anyone trying to follow the debate if we jump forward and back.

There is no explicit or separate provision for intersex persons in the Bill. However, the provisions which apply to transgender persons also apply to intersex persons. Intersex is a general term and is used for a wide and complex variety of conditions in which a person is born with a reproductive or sexual anatomy which does not match to typical identification of a female or male. From a legislative perspective, defining the term intersex is not straightforward. A huge variety of conditions are involved and it is an area where the level of knowledge is constantly evolving. The Senator recognised this in her contribution. It is important to note that the number of people with intersex conditions is small and many will choose to remain with their assigned gender. It is a small number, although the Senator may have different figures. Section 63 of the Civil Registration Act 2004 allows for the correction of errors. This means that it is possible to apply for a correction where a child with an intersex condition has been assigned the wrong gender. This is possible under current legislation. However, if they wish to avail of it, the gender recognition certificate route will also be open to a person with an intersex condition.

I thank Senator Katherine Zappone for pointing to the letter to me this afternoon when I met her earlier. I accept the Irish College of General Practitioners copied the letter to me, but I cannot find it. I am grateful to have had the opportunity to look at it before the debate in this House.

Why would I not do this?

I thank the Senator for this courtesy because I would not otherwise have been aware of it. We have not had an engagement with the Irish College of General Practitioners. This is the first time that we have had that level of engagement. The general register of medical practitioners covers all doctors who practise in Ireland without distinction. It is not limited to GPs. The issue needs to be examined carefully to see what are the consequences and challenges of change. It is not something the Government is prepared to do without serious consideration and consultation. We need to have the discussions outlined by the Senator. I accept that Senator Marie Moloney has spoken to one particular GP.

I spoke to a couple of them.

However, we have not had in-depth discussions with the IMO. We spoke earlier about the review mechanism. This will be one of the important elements to be examined and reviewed. We will not manage to have these in-depth consultations and to consider the issue properly before this legislation is sent to the Dáil. I therefore will not accept the amendment proposed.

I want there to be no confusion or misunderstanding about the validation process and the statement by the primary treating physician. I have been very clear that the supporting statement will not require any information about the person's medical history or care pathway. The purpose of those amendments is to ensure that there is no confusion on this point. The Tánaiste raised this issue at the Cabinet last week and the proposed changes were agreed. This is dealt with in amendments Nos. 20, 22, 30 and 31. As Senator Ivana Bacik pointed out, Senator Marie Moloney's amendment would also have implications on all of those sections. A close examination and analysis of this issue is necessary and discussions will have to take place with the college of physicians and the IMO. At this stage, however, I do not propose to accept the proposed amendment. I understand the logic in the argument. However, the consultations will have to take place first. The process and the review will look closely at this area in the coming years.

It is a relatively short period given the length of time it has taken for the legislation to come through - that is, 20 years. There will be a review process and a reporting mechanism of two years and one year. I believe it will be dealt with in a speedy and professional manner.

Senator Fidelma Healy Eames referred to consultation with intersex people. I do not have that information with me, but I will try to determine what consultations took place, if any. As Senator Fidelma Healy Eames pointed out, Transgender Equality Network Ireland has done a tremendous job representing these groups. However, I am unsure whether there is a specific group in the State that represents those groups. Intersex is so varied in its manifestation. Anyway, I will examine our files to determine whether any consultation with the various groups took place. I simply do not have that information with me today.

I thank the Minister of State for his response. I respect where he is coming from, the concerns he has and the need for consultation. It seems he does not believe that this is possible, not only now. It has not happened to date and will not happen soon, even following the Dáil effort. I would have preferred if the Minister of State had at least agreed to talk to them, ask the questions, determine whether we have the necessary time and ask what sort of time would be required before this went through the Dáil. If the view was that it would take a long time, then so be it.

The Minister of State and the Tánaiste have led on this issue. We need to get this legislation through, on which I am absolutely with the Minister of State. Now is the time, even if it is not perfect. I am with the Minister on that issue also. It may have been better to offer or ask those involved what timescale they require. Perhaps the Minister of State needs more time than they do. I am unsure whether he indicated as much in his response. I would have preferred it if the Minister of State had requested that much. It seems that is not possible, but out of respect to the trans community and the Irish College of General Practitioners, which decided to put its view on the line and offered to speak with the Minister of State in this regard, I will be pressing the amendment.

Time is limited. I hope to be in the Dáil shortly, within weeks of its going through. If I had a choice, I would be in the Dáil next week. Given the volume of legislation that is going through the Dáil and the window available, I had to take the opportunity to get this into the Dáil and get the legislation passed. The timescale is limited.

The review element of two years will help. A certain amount of that period is left. Although I cannot give any commitment, I sincerely believe the review will deal with that issue. I, therefore, call on Senator Katherine Zappone to withdraw her amendment.

The matter is entirely at her discretion. Is Senator Katherine Zappone still minded to press amendment No. 4?

Amendment put:
The Seanad divided: Tá, 13; Níl, 23.

  • Crown, John.
  • Cullinane, David.
  • Healy Eames, Fidelma.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • O'Brien, Mary Ann.
  • O'Donnell, Marie-Louise.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • van Turnhout, Jillian.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Brennan, Terry.
  • Coghlan, Eamonn.
  • Comiskey, Michael.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Cummins, Maurice.
  • D'Arcy, Jim.
  • D'Arcy, Michael.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Kelly, John.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Keeffe, Susan.
  • O'Neill, Pat.
Tellers: Tá, Senators Averil Power and Katherine Zappone; Níl, Senators Aideen Hayden and Michael Mullins.
Amendment declared lost.
Amendments Nos. 5 and 6 not moved.
Government amendment No. 7:
In page 7, between lines 19 and 20, to insert the following:
"Review of operation of Act
7. The Minister shall--
(a) not later than 2 years after this section comes into operation, commence a review of the operation of this Act, and
(b) not later than 12 months after its commencement, make a report to each House of the Oireachtas of the findings made on the review and of the conclusions drawn from the findings.".
Amendment agreed to.
Amendment No. 8 not moved.

Amendments Nos. 9, 15 to 18, inclusive, 24 and 25 are related. Amendments Nos. 15 and 16 are physical alternatives, as are amendments Nos. 17 and 18. Amendments Nos. 9, 15 to 18, inclusive, 24 and 25 may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 9:

In page 9, line 8, to delete "18 years" and substitute "16 years".

Amendment No. 9 would delete the reference in the Bill to 18 years, the age from which someone will be treated as an adult, and replace it with "16 years". As we have discussed on Second and Committee Stages, 16 years is the age of medical consent and the age at which young people can make much more significant decisions affecting them - for example, to undergo an elective medical procedure - than getting a gender recognition certificate. It is appropriate that a transgender person be able to make a decision in his or her own right from the age of 16 years. Such people should not require parental consent at that stage and should be treated as adults, particularly given the precedent of medical consent.

Amendment No. 25 is designed to put in place a procedure for those aged under 16 years. It is one of the Bill's major failings that it makes no provision for the recognition of young transgender persons under the age of 16 years. If passed, the amendment would ensure people under 16 years of age would only be able to get gender recognition certificates if their parents consented and they satisfied a court that it was in their best interests. These are significant hurdles and the safeguards are strong enough.

We are talking about recognition and access to a gender recognition certificate. Senator van Turnhout, I and others raised the matter of the difficulties young people face in education. I pushed our amendment on this area last week in amending the Education Act to ensure that a child would have a legal right to be accepted and accommodated by a school in his or her preferred gender. The Minister of State said he was not prepared to accept that as he believes that it is a separate matter for the Department of Education and Skills. That is unfortunate because, as he said, the lived experience of transgender people is that they come across many obstacles in the basic aspects of their lives that other young people can take for granted. I refer to gaining access to an appropriate school, wearing uniforms, using the toilets, roll call and being called by the appropriate name by teachers. We put forward a more specific amendment to ensure that young people would be treated appropriately by the education system. We were defeated in that vote last week and therefore the amendment is not included in the Bill. However, at least this process would ensure that if a young person can get a gender recognition certificate under the age of 16 years, he or she can then present it to the school and that would give him or her the opportunity to be treated appropriately and to have a right to be recognised and supported by the school in his or her preferred gender.

We had a similar debate on earlier amendments on this issue in regard to those aged under 16 years. The Minister of State rejected a more moderate and compromised amendment from Senator Jillian van Turnhout on that issue. Therefore, unfortunately, I do not have much faith that the Minister of State will accept amendments Nos. 9 and 25. I want to push such amendments yet again because we must keep trying to improve this legislation. It affects young people most profoundly not to have proper recognition and support for who they really are. It is a huge failing in the Bill that it has not been addressed and it is for that reason that I will push thee amendments. I will also talk to our Members in the Dáil to ensure that they do the same there. We cannot give up on this issue. To bring through a Bill that does nothing for such a vulnerable group of young people is such a massive disappointment. It will leave people without the protection and support that they deserve.

The decision to seek gender recognition from the State is a hugely significant one which will have implications for the person throughout their life. I simply cannot agree that to remove the age limit entirely is in the best interests of all children. The State must legislate to protect the best interests of all children. I strongly believe the Bill safeguards the rights of children generally. I acknowledged in an earlier response to Senator Jillian van Turnhout the lack of research into transgender children.

I do not accept that providing for an age limit of 16 years in respect of amendment No. 9 and having no age limit in respect of the other amendment is in the best interests of children. I believe what I outlined earlier concerning the Minister, Deputy Jan O'Sullivan, and that the best process of protecting children in that regard is to protect them through education to make sure a young person's living experience going through school is as it should it be and as we would expect it to be for every citizen. The three-stranded report I outlined in my response to earlier amendments is the best way to do that and it is in the best interests of all children.

Amendment No. 25 seeks to allow the court to give a child of any age an exemption from the requirement to meet the standard minimum age if the court is satisfied that it is in the best interests of the child. It appears to propose that this could be done without supporting statements from medical practitioners. I am satisfied that it is only appropriate for the courts process to be available for 16 to 17 years olds and the applicant must meet all requirements. My concern has to be to protect those children who are not mature enough to know their preferred gender at a young age. Ages as young as six and seven years were mentioned during the debate on earlier Stages. I do not propose to accept amendment No. 9 or amendment No. 25. I simply cannot accept the reduction of the age below 16 years.

The Minister of State referred to what is in the best interests of the child. Both of our amendments are based on providing for what is in the best interests of the child. Amendment No. 25 makes it very clear that a court can only grant a gender recognition certificate to a person under the age of 16 years if it is satisfied that it is in the best interests of the child. The parents will also have to consent before the court could even consider doing this. I do not understand how the Minister of State could possibly think that it is not in the best interests of child if, to take the example of a 15 year old, he or she knows his or her true gender identity, his or her parents support him or her and want to have this recognised by the State and a judge could also be satisfied that this is in the young person's best interests. However, the Minister of State thinks he or the Government knows better. He is talking about a blanket ban in that he said we needed to protect all children.

We need to have a system that can examine the individual needs and best interests of the child and consider what is best for them. Instead the Minister of State is bringing in a blanket ban on all children. He is saying that in no circumstances whatsoever can this be granted, no matter how sure the parents are, how sure the young person is or how satisfied the court is that this is the best thing for that young person. As far as he is concerned, there is a blanket ban on any person under the age of 16 years making such an application. I do not understand how he could possibly consider that fits with the best interests principle. I do not see how it fits with the constitutional amendment we voted in to provide that the rights and the best interest of the child are paramount in all decisions that affect them. This manifestly falls foul of that amendment. I do not understand what the Minister of State is afraid of because the system we have set out is so restrictive that there is no question a person under the age of 16 years could get a gender recognition certificate unless they, their parents and the court - a triple lock system involving three different people - were satisfied it was in the person's best interests. If, God forbid, in a small minority of cases it turns out not to have been the right decision, this is not irreversible. As we have made clear many times, we are not talking about medical treatment or a surgical procedure. Those are entirely separate matters. We are talking about a piece of paper granting recognition by the State and if, say in 1% of cases, a person gets it wrong and changes his or her mind, he or she can rip up the piece of paper.

The Minister of State would deny such recognition to a person and leave him or her in a situation where he or she is still vulnerable - as has been pointed out, the people concerned go through their daily existence in a way that is uncomfortable, lonely, stressful and makes them depressed and suicidal - because he cannot accept that a court could make this decision for a person and put in place a process for him or her. I do not understand this. It is wrong. It is patronising. We are failing the people who are most vulnerable in all of this. Transgender people in general have been very badly let down by the State and left in such vulnerable situations through not being able to get recognition. Those who are most vulnerable are young people. We have already discussed the statistics on depression, mental health and suicide. The Minister of State has an opportunity here to do something to address that issue and I find it very upsetting that he will not do so. The system we have set out is restrictive enough and, in requiring a court order, it has enough safeguards to ensure that a certificate would only be granted where people can be satisfied that it is in the best interests of the child.

Of all the aspects of the Bill, I find this very upsetting. I have met such young people, I have listened to them and heard from their parents. This is not a decision that somebody makes on a whim that he or she not thought through. If a parent is going to sign off on this and go into a court and argue on behalf of the young person that he or she has a right to a gender recognition certificate, that parent will have been on such a journey with his or her child, probably over an extended period, before he or she will satisfy himself or herself that this is the right thing and then he or she will advocate on behalf of his or her child. The Minister of State's response and the attitude of the Government to the Bill is based on the assumption that we have to protect people because they do not know what is right for themselves and we have to stop them making the wrong decision. That is very patronising and offensive and it will leave a huge group of people under the age of 16 years without any support whatsoever under this legislation. That is wrong.

This is not only a piece of paper. The Senator spoke about being patronising. People have strived for she has called a piece of paper. This is an important certificate and a recognition of gender.

We would not have spent hours in this House if this was only a piece of paper. People would not have campaigned for 20 years if this was only a piece of paper. I cannot accept the statement that this is only a piece of paper. This is an extremely important Bill that is long overdue. That it is long overdue is probably the only part of the Senator's statement that I can accept. It is long overdue, it is 20 years overdue. It has only come through this House because this Government is in office and because of the bravery of Dr. Lydia Foy who took it to the courts.

Who commissioned the report that led to the Bill?

I am satisfied that this is a prudent and balanced approach which meets the standards in the best interests of the child. I do not believe this is just a piece of paper. We would not be here if it was only a piece of paper.

Amendment put:
The Seanad divided: Tá, 10; Níl, 20.

  • Barrett, Sean D.
  • Craughwell, Gerard P.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mooney, Paschal.
  • O'Brien, Mary Ann.
  • O'Donovan, Denis.
  • Power, Averil.
  • van Turnhout, Jillian.
  • Zappone, Katherine.

Níl

  • Bacik, Ivana.
  • Brennan, Terry.
  • Coghlan, Eamonn.
  • Comiskey, Michael.
  • Conway, Martin.
  • Crown, John.
  • Cummins, Maurice.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moloney, Marie.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O'Keeffe, Susan.
  • O'Neill, Pat.
Tellers: Tá, Senators Paschal Mooney and Averil Power; Níl, Senators Aideen Hayden and Michael Mullins.
Amendment declared lost.

Amendments Nos. 10, 11, 14 and 32 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 10:

In page 9, to delete line 10.

I second the amendment.

I addressed this matter comprehensively on a previous Stage, when I explained that we had discussions with the Minister for Justice and Equality on including it as part of the commencement notice if the referendum was passed. Unfortunately, we are tied constitutionally. For those reasons, I cannot accept the amendment, but I have ensured there will be a speedy resolution of this matter, subject to the referendum being passed.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

If amendment No. 12 is agreed to, amendment No. 13 cannot be moved.

I move amendment No. 12:

In page 9, to delete lines 32 to 37, and in page 10, to delete lines 1 to 3.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 13:
In page 9, lines 34 and 35, to delete "based on a medical evaluation of the applicant".
Amendment agreed to.
Amendments Nos. 14 to 19, inclusive, not moved.
Government amendment No. 20:
In page 11, line 14, to delete "based on a medical evaluation of the child".
Amendment agreed to.

I move amendment No. 21:

In page 11, to delete lines 21 to 24.

I second the amendment.

Amendment put and declared lost.
Government amendment No. 22:
In page 11, line 32, to delete "based on a medical evaluation of the child".
Amendment agreed to.
Amendments Nos. 23 and 24 not moved.

I move amendment No. 25:

In page 12, between lines 13 and 14, to insert the following:

"(7) Notwithstanding subsection 4(b), subsection 4(c) and section 14(8)(d)(iii) a court may, on application to it in respect of a person under the age of 16, by order exempt the person from the application of section 8(2)(a) and section 14(8)(b) as to age, provided that the Court is satisfied, given the particular and exceptional circumstances of the person in respect of whom the application is made, that the granting of an exemption is manifestly in the best interests of the person.

(8) Where a court grants an exemption under subsection 7, a guardian of a child to whom the exemption applies may make an application under section 7 on behalf of the child.".

I second the amendment.

Amendment put and declared lost.
Amendments Nos. 26 to 29, inclusive, not moved.
Government amendment No. 30:
In page 15, lines 23 and 24, to delete "based on a medical evaluation of the applicant".
Amendment agreed to.
Government amendment No. 31:
In page 15, line 26, to delete "based on that evaluation,".
Amendment agreed to.
Amendments Nos. 32 and 33 not moved.

Amendments No. 34 to 36, inclusive, are related and may be discussed together.

Government amendment No. 34:
In page 19, line 25, to delete "Act" and substitute "section".

This is a technical change and deals with the disposal of property. These sections of the Bill refer to wills made before or after "the coming into operation of the Act". They address the issue that recognition of a person's preferred gender should have an impact on the distribution of property under wills or other instruments. If a will made after the legislation comes into effect refers to the eldest daughter, and a person who was previously a son becomes the eldest daughter following recognition of the preferred gender of that person, the person will inherit as the eldest daughter.

Amendment agreed to.
Government amendment No. 35:
In page 19, line 27, to delete "Act" and substitute "section".
Amendment agreed to.
Government amendment No. 36:
In page 20, line 6, to delete "Act" and substitute "section".
Amendment agreed to.
Amendment No. 37 not moved.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Minister of State and through him the Government for bringing forward this important legislation. While it will not in any way rumble or disrupt the institutions of the State, it will be an important benchmark and legal landmark for those who have been caught in the situation outlined by many speakers and the Minister of State throughout this important debate.

Having accepted the Bill should pass, it is important to state - I am sure my colleagues have an equal point of view - that it has inherent flaws. Of all of the amendments the Government accepted - I wish it had accepted more - the one whereby there will be a review of the legislation in two years time is significant in the overall context of the debate. It means that in the light of their experience on a practical level, the very people to whom the Bill is aimed will have an important voice in speaking to whoever will be the Minister of State's successor. Having said this, I do not believe this argument will go away. I do not believe the areas of disagreement between the Minister of State and ourselves will go away. Perhaps this is good because it means the issues which were of particular importance and pertinent to the very lives of the people to whom the Bill is directed, and the impact it will have on them, will be very powerful weapons when it comes to the review process in two years time.

Overall, I compliment the Government on bringing forward this legislation. Many people have been in the Visitors Gallery throughout the debate, for which I commend them. They have given advice, support and encouragement to all of us involved in the debate and I compliment them for this. I also compliment my colleague, Senator Averil Power, who drafted many of the amendments, particularly on Report Stage. She has taken a very proactive role in engaging with transgender people and their parents and families. This is a good day for democracy. It is a good day for the Seanad and it sends a very powerful message to the other House. I have no doubt the Minister of State will acknowledge the important contribution Members of this House have made to framing and shaping the legislation, flawed and all as I believe it still is, when he brings it before the Lower House.

It is good to follow the statesman, Senator Paschal Mooney.

I acknowledge and celebrate the extraordinary strength, courage and character of the transgender community, particularly Dr. Lydia Foy and Mr. Michael Farrell, as well as all of the other people who have gathered with us over this time, as Senator Paschal Mooney stated so eloquently. I am sure the Minister of State accepts it is right and good that I acknowledge them first. We are all very pleased the Bill has passed, even though we have made the strongest of arguments possible, to which the Minister of State has listened. There is more to come in terms of the research done by various Members. It was fantastic to feel the support for the transgender community in Ireland in a cross-party way. We differed on minor issues. I hope it sends a strong signal to transgender people that we celebrate, acknowledge, affirm and recognise their right to their own identity.

With regard to the role of Minister of State and how he approached the work on this important Bill, perhaps one of the first he has brought through the House, he has played a blinder because he respects all of us, including those who sit behind him and give him the strong advice which enables us to have the robust discussions we have had. I agree with Senator Paschal Mooney it is a very good day that we are sending this to the other House with the arguments which are still unfinished. I am appreciative of the roles of the Tánaiste and the Minister of State and how they have worked with their colleagues in the Government to bring us to this point.

I add my voice to those who have welcomed the Bill and thank the Minister of State and his officials for all the work they have done, for working with us in the background and taking on board our views. This has been fiche bliain ag fás, with 20 years of campaigning and hard work on behalf of the organisations in the Visitors Gallery, for which I commend them. I am delighted, notwithstanding people believe there are omissions and flaws in the Bill, as we have brought through ground-breaking legislation. In two years time there will be a review and in three years time it will be laid before the Houses. We may not be here to discuss it but we have done our bit to get it moving. I have no doubt those organisations will still exist in two years time and they will campaign for any changes which need to be made. It will not be left on the back burner. By enshrining the review in the legislation we are ensuring it will take place, and it is a vital part of the legislation to know the review will take place. I am delighted the Minister of State has accepted some of the amendments from Senators. As has been stated, this is a good day for the Seanad and it proves we are worth having.

I should be standing here full of joy as this has been a long time coming. Members have sat through every moment and hour of the debate full of expectations and hope, but what we have delivered is far from their expectations.

In fairness to the Minister of State, it is paradoxical to tell him he has done a great job bringing it this far. However, there are heavy hearts in this room tonight. People came here expecting great things but, as I warned them a month ago, we were never going to get everything we wanted. As I said in my opening remarks, it portrays a basic ignorance of what gender identity and the sovereign choice of an applicant mean. It portrays a deep distrust that transgender persons know their own minds and require the external opinion of medical specialists to identify their gender. In the case of parents, it does not trust their ability to know their own children, and in the case of children it renders them voiceless. The Bill is deeply paternalistic by imposing on people what is judged by policy makers, who have no experience of transgender issues, to be objectively good for them. The Minister of State and I know this; we have both spoken about it. We could not possibly understand what it means to be transgender.

The Bill is out of sync with the principles of liberal society and Mill's harm principle, which states the right of the State to limit people's liberty is only justifiable to prevent harm to others. The Bill does not apply an essential rights-based approach, which enables rights holders to have the full enjoyment of the rights to which they are entitled. Does the Minister of State, I or anybody else believe that the State knows an individual's best interest better than the individual himself or herself? Who better to promote the interests of transgender persons than transgender persons? However, we do not listen and respond accordingly, at least not in full. If transgender voices had been heeded in the past month there would not have been 200 people protesting outside Leinster House last Saturday, the first protest in what will be a strong campaign for justice. The campaign demands nothing more than the entitlement for people to live and be accepted and legally recognised as they are. This legislation has been a long time coming, but it must not be too late. The State must redress the injustice done and do it quickly. No words from me can say better than what Claire Farrell said last Saturday, "Please give me the opportunity to leave this world as the person I am." There is no counter argument to this call for full, unfettered autonomy and self determination.

I feel extremely emotional as we draw this debate to a close. In a way we have had a great success today, but at the same time we have had a tremendous failure. I feel deeply sorry for the people in the Visitors Gallery tonight who had expected great things from us but who will walk away with heavy hearts. The Minister of State has done the best he can, for which I commend him. I am delighted that the Bill will pass. Alas and alack, like so many other things in this country, it will be revisited time and again. It will be tweaked, moved around and discussed, but people will shy away from it when it comes due for review. Not everybody is as brave and as strong as the Minister of State and the Tánaiste. Unfortunately, when the review time comes around I do not know whether either the Minister or I will be in this House, or any other House in this building. If the Minister of State is here, he will drive it as best he can and if I am here, I will also drive the review and try to bring the Bill closer to what our guests in the Visitors Gallery believe they sought.

I compliment all of my colleagues who spoke on the Bill. No one said anything against it. I compliment the Minister of State for bringing it to the House.

I thank the Minister of State, his officials and the officials from other Departments. It is always good to have engagement between the Stages of legislation and I acknowledge that it occurred. I particularly thank the individuals and organisations that are directly affected and concerned by this Bill. I spoke on Committee Stage about the privilege of being a Senator because one gets a particular insight. I hope some of the debates we have had in the House will filter out and achieve a ripple effect.

I have a clear message for the Lower House. I am very supportive of the Bill, but I would have liked it to go further. That is where my hesitancy lies. I am one of life's optimists and I always try to see how we can move forward in life's offices. Part of me believes we have now started a relay race and the first baton has been grasped firmly. The Bill is before us. There are three further parts of the relay. We still have to recognise children's rights, remove the medicalising of gender identity and remove the enforcing of divorces. However, the race has started and we are firmly in the field. That is good work today. I would have liked if we could have won the race and celebrated, but we are on the right track. For me, that is a good start. People had to fight for many years to get the starter gun to go and at least we are in that process now.

The optimist in me accepts that this is where we are and the Seanad has outlined where we must go. We must talk to people and explain why we feel so passionately about this. However, I thank the Minister of State for his work on the Bill.

I join my colleagues in welcoming the passing of this legislation. I pay tribute to the Minister of State for the keen interest he has taken in the Bill, as well as the officials and the Tánaiste who was to the fore in bringing it forward. The Bill was described earlier today as ground-breaking legislation and I hope it will improves the lives of many people. As other speakers have said, it is not perfect. However, there will be other opportunities to strengthen and enhance it. There was much discussion today about the review after a two-year period.

I pay tribute to Senators on all sides of the House who have campaigned on this issue for many years. A 20-year campaign has culminated in significant success today. It is a very proud day for me to see history being made with the passing of this legislation by the House. However, the Members of the next Seanad will have a responsibility to build on what has been achieved today and I have no doubt they will do this. I am pleased the legislation is being passed and hope the successes achieved today will be built upon as the years pass. I sincerely thank the Minister of State and his team for their good work.

Before the Minister of State speaks, Senator Paschal Mooney wishes to rectify an error he made.

It was ungracious of me not to acknowledge the outstanding contribution Senators Katherine Zappone and Jillian van Turnhout had made in researching and drafting the various amendments. I also thank the Minister of State not only for his personal engagement but also the manner in which he and his officials reached out to all sides of the House, party or non-party, to ensure there was a dialogue as we moved forward. It is most unusual, in my experience, for a Minister to be so proactive on a legislative measure where there are obviously opposing views.

It is important that I thank another person, to whom Senators Katherine Zappone and van Jillian Turnhout briefly referred. A great vote of thanks is due to Dr. Lydia Foy-----

-----for her courage in starting this journey so long ago, perhaps without any hope at the time of this outcome, flawed as it may be and as Senator Gerard P. Craughwell has so eloquently outlined, which will be put on the Statute Book, notwithstanding what may or may not happen in the Lower House. It can hardly oppose the good work we have done.

The Senator is testing the indulgence of the Chair.

You are very kind.

To add to Senator Paschal Mooney's contribution, I acknowledge the work done by Dr. Lydia Foy. In many ways, this is ground-breaking legislation, but I also accept that, much to everybody's shame, it is 20 years being brought forward. It would have been better if Dr. Foy had not been obliged to go through the courts to secure her rights.

A vote of thanks should go to her in this regard.

Great credit is also due to the officials who have dealt with the amendments, motions and notes throughout this period and have stuck with this Bill for so long. I became involved almost three quarters of the way through the process and the officials across nine Departments and the two officials who are with me today have stuck with this legislation for a very long period. I pay particular tribute to their dedication.

It would be remiss not to pay tribute to the dedication of the Senators who have been so much engaged with this. Senator Paschal Mooney is correct. I doubt that there have ever been so many meetings and discussions not just in this House, but also outside it, on fleshing out the detail of legislation. It is all the better for that. A body of work must be done in respect of the mechanism relating to transgender children and education. I reaffirm what I said earlier about that and I look forward to working with the Senator and the Minister to ensure that work is carried out.

Senator Paschal Mooney made a contribution earlier about the review. He was not present when I responded to it-----

Unfortunately, I had a committee meeting to attend.

I accept that. I was not being negative but just wished to respond in the Senator's presence. The Senator wanted me to ensure this would not be a box ticking process but that we would examine each section. It is not about the number of certificates being issued or the like, but a true review. The Senator wanted me to say that and I am happy to do so again while he is present because he is probably one of the Senators who is more likely to be returned to the House.

The kiss of death, but I thank the Minister of State for the kind comment.

The Minister of State should be careful. We are on the same panel.

That is me banjaxed.

With regard to the engagement with a wide range of people outside the House and the people in the Visitors Gallery, in my experience with legislation, as a backbench Deputy, there has never been so much positive interaction on a legislative measure. The amendment made in this House related to the two year review. That is important and should be recognised as an important addition to the legislation before it goes to the Lower House. It lays down that it is two years and there will be a report within the year to both Houses. The legislation has been improved at all stages. One can see the fingerprints of the committee and one can also see the fingerprints of the Seanad. There has been an acknowledgement of the work done.

I thank the Leas-Chathaoirleach for how well he chaired the proceedings and moved the business forward. I again thank the Senators for their engagement. It is much appreciated. However, the work starts today. There is an element of education, of making people aware and of acknowledging that there are issues in the education system and society. It is important to recognise all citizens as equals. This work will be built on in the future; it is important and ground-breaking. I also acknowledge the work the Tánaiste did on the Bill. It would not have been before the House as quickly and efficiently if she had not been supporting it 100%. I thank Senators for all their work in recent weeks.

Question put and agreed to.

When is it proposed to sit again?

Ar 10.30 a.m. amárach.

The Seanad adjourned at 7.45 p.m. until 10.30 a.m. on Wednesday, 18 February 2015.