This piece was originially published as an Analysis piece in theÂ Examiner on 6 May 2011.
This Friday marks the anniversary of the first meeting of the Gender Recognition Advisory Group (GRAG), established by the FF/Green Government â€˜to advise the Minister for Social Protection on the legislation required to provide for legal recognition of the acquired gender of transsexualsâ€™. The absence of such recognition results in discrimination and infringement of the basic human rights of transgender people (those whose gender identity/expression differs from the sex recorded at birth). The formation of the GRAG signified an important step towards protecting the human rights of transgender people. The GRAG first met on 6 May 2010; a report was expected within six months. Still we wait.
The necessity of introducing such recognition was first brought to public attention by Dr Lydia Foy, a male-to-female transwoman, when she brought a case to have a birth certificate issued reflecting her preferred name and gender. Her thirteen-year battle reached a quasi-conclusion in 2007 when Justice McKechnie in the High Court ruled that the inability of Irish law to provide a means by which Dr Foyâ€™s preferred gender identity could be legally recognised amounted to a breach of her right to respect for her private and family life, contrary to Article 8 of the European Convention of Human Rights.
Concluding that Ireland was â€˜disconnected from mainstream thinkingâ€™ on this issue, Justice McKechnie called on the Oireachtas to review these matters as a matter of urgency. In response, the State appealed the decision to the Supreme Court. The matter remained frozen until 21 June 2010, when the State withdrew its appeal in the Foy case; an unsurprising outcome, considering the establishment of the GRAG six weeks earlier.
Last summer the GRAG began a public consultation, and published the principles that would underpin the proposed legislative scheme. Many were welcome: the rights, dignity and privacy of the applicant would be respected; the process would be consistent, objective, and completed in a timely manner; it would possess integrity and fairness, and would not deter applicants. Such principles reflect a recent movement within international human rights discourse to acknowledge gender identity issues within the normative framework of human rights.
Yet simultaneously, these core principles are undermined in four ways: use of language, emphasis on diagnosis, and restrictions of age and marriage.
The GRAGâ€™s language confines itself to recognition of â€˜the changed gender of transsexual personsâ€™. â€˜Transsexualâ€™ is a narrow term, often associated with a person who has undergone some form of medical (e.g. hormones) and/or surgical intervention – many transgender people would choose neither. Thus at its outset, the GRAGâ€™s thinking as to who would be protected by gender recognition legislation is restrictive.
The GRAGâ€™s terms of reference emphasise medical diagnosis, which is worrying. In his most recent Comment on gender recognition, the European Commissioner for Human Rights, Thomas Hammarberg, reiterated the importance of severing the link between a medical diagnosis and access to recognition. He highlighted the work of the GRAG as an opportunity for Ireland to â€˜become a good model for other states which are currently considering improving their legal framework for transgender personsâ€™.
The UKâ€™s Gender Recognition Act of 2004 offers a timely warning in this respect. In relying on a diagnosis of gender identity disorder (GID) to ground a claim for recognition, the Act excludes anyone who does not want to go down the psychiatric route. Critically, it also excludes intersex people from its protection (intersex is an umbrella term for a variety of medical conditions where a personâ€™s body simultaneously combines both male and female biological traits). Although no definition of GID is offered in the legislation, the definition in the Diagnostic and Statistical Manual of Mental Disorders that GID is â€˜not concurrent with a physical intersex conditionâ€™ ensures the continued exclusion of intersex people from the rights contained in the UK Act.
Thirdly, the proposed scheme would accord recognition only to applicants aged 18 or over. The recent Irish study â€˜Supporting LGBT Livesâ€™ demonstrates that many young transgender people become aware of their gender identity while still under this threshold; many begin a transition process before turning 18. The minimum age criterion is particularly harsh in the context of intersex children, whose condition might become apparent after the birth has been registered. At present there is no certain method of ensuring that birth certificates can be amended to take account of the fresh information. Given that the gender recorded at birth was the best information available at that time, technically the gender change is not necessarily a â€˜correction of an errorâ€™ as understood by the Civil Registration Act 2004.
Finally, the proposal to exclude married people from the protection of this legislation will surely cause a Constitutional quandary. Under Article 41 of the Constitution, families based on marriage enjoy special protection. Some trans people marry in their original gender. Some of these marriages survive the transition process. To refuse to recognise married applicants would (as is the case in the UK) result in legislation that effectively demands divorce. The idea of forcing a couple to divorce, of breaking up a family in order to accord one member their human rights, is deeply offensive. Such a provision forces a person to choose between two human rights, the right to marry and the right to recognition. This is especially insensitive for the supportive spouse, who simply wants to remain married. The legality of such interference with the constitutionally protected family is questionable â€“ particularly where Irish divorce law requires couples to live apart for 4 of the previous 5 years.
One year on and there is no sign of the report. Its absence has not gone unnoticed, with TDs posing questions of the Minister for Social Protection in January (here), March (here and here) and April (here and here). Itâ€™s due, weâ€™re told, in a matter of weeks.
We wait, and hope that the time taken to compile this report results in proposed legislation which is thoughtful, enlightened and carefully considered. If it does, the landmark legislation could position Ireland as a world leader on this sensitive and deeply personal issue.