Remembering Vann Nath

The death was announced yesterday of Vann Nath, one of the few people to survive imprisonment by the Khmer Rouge in Tuol Sleng prison.

Vann Nath survived his imprisonment because of his ability to paint; rather than killing him his jailers forced him to paint and sculpt images of Pol Pot. He was ultimately one of only seven reported survivors of the infamous torture center.

Years later, after the collapse of the Khmer Rouge regime, Toul Sleng was converted into a genocide museum and Vann Nath returned to work there for several years. His painting, many of which still hang in the museum, graphically highlight some of the brutal crimes of the Khmer Rouge. They are a moving testimony to the horrors inflicted on the people of Cambodia by their radical leadership during the 1970s.

Vann Nath’s paintings were a central part of his life’s work to seek justice for the victims of the Khmer Rouge and to tell the story of those years. In 1998, he wrote his memoir – A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21 Prison– which is believed to be the only written account by a survivor of Toul Sleng.

When, in 2009, the Khmer Rouge trials finally commenced Vann Nath was the first survivor to testify against Duch, his former jailer who was later convicted of  war crimes and crimes against humanity. At the hearing the Chamber president asked Vann Nath why he wanted to testify, his answer expressed a desire to ensure that Cambodia’s younger generations learnt from the Khmer Rouge period:

“I determined if one day I survived and had freedom… I would compile the events to reflect on what happened so that the younger generation knew – would know of our suffering…. So I had to reveal, I had to write, I had to compile, and it can be served as a mirror to reflect to the younger generation of the lives of those who were accused with no reason, who committed no wrong, and that they were punished that way. That was the very suffering that we received and the suffering that we had because we told them the truth and they did not believe it.”

That belief in the importance of telling the truth and establishing a clear history of the abuses carried out by the Khmer Rouge will perhaps be the most important legacy of the work of the ECCC . For many years the approach taken by Cambodia to how to deal with the legacy of the Khmer Rouge was, as the Prime Minister once said, to “dig a hole and bury the past.” The New York times described the “painful generation gap” that developed as a result, with the older generations having lived through the horror of that period, and the younger generations knowing little if anything of that time. In the run up to the beginning of the Khmer Rouge trials this problem was clearly identified in a 2009 survey carried out by the Human Rights Center at Berkeley Law School. This found that four out of five members of people under 30 knew little or nothing about the Khmer Rouge years, and only 15% said they knew much about the ECCC trials. Two years later, after the Duch trial, a follow-up survey found an increase in the level of knowledge generally, and a positive response regarding the work of the court:

Over three-quarters of respondents (compared to 68% in 2008) believed the ECCC would have a positive effect on the victims of the Khmer Rouge and/or their families such as bringing justice (37% compared to 2% in 2008) and helping victims feel better, have less anger, or help relieve the pain and suffering endured during the Khmer Rouge period (25%).

Vann Nath did not survive to witness the upcoming trial of the four senior leaders of the Khmer Rouge. The case will be more significant in the attempt to establish a public record than the Duch trial. However, it is unclear how effective it will be as the four defendants, Noun Chea, Khieu Samphan, Ieng Sary and Ieng Thirith will not cooperate in the same way as Duch. Their response thus far to the charges laid against them, including that of genocide, relies on a version of history which portrays the Khmer Rouge as national liberators who protected the country from Vietnamese incursions and threats from American bombing during the Vietnam War. 

Regardless of the outcome of further trials, Vann Nath will be remembered as an inspirational artist and human rights advocate. His paintings vividly establish the suffering and abuse of the Cambodian people between 1975-1979. Whilst his emotional testimony before the ECCC was a critical moment in speaking for all victims of the Khmer Rouge, something he had dedicated his life to and had achieved with dignity and integrity.

Finally, below a letter of condoence written by the Documentation Centre for Cambodia is reproduced here:

DC-Cam Letter of Condolence for Vann Nath

Vann Nath: Witness of History

Today, September 5, 2011, Vann Nath passed away. As one of only 14 known survivors of the infamous Tuol Sleng S-21 prison, Vann Nath was a witness to history and exhibited great strength in providing his testimony despite the horrific crimes he suffered and in the face of the impunity enjoyed by his former tormentors for over thirty years. When the Khmer Rouge Tribunal was finally established to seek justice for victims of the Khmer Rouge, Vann Nath chose not to apply for civil party status. He made this choice because he understood that his primary duty was to provide testimony for subsequent generations of Cambodians to learn from. This reflected a concept of justice that focuses on the future of humanity, rather than temporary individual desires for retribution, revenge or remuneration.

 The passing of Vann Nath before others responsible for the creation of Tuol Sleng S-21 prison are tried is a tragedy that highlights the high cost that the simple passage of time can inflict on the pursuit of justice. Sadly, this tragedy repeats itself silently throughout Cambodia, as each day victims of the Khmer Rouge pass away without having been provided any measure of justice. What is even more tragic is the fact that many of these deaths could be prevented if ordinary Cambodians had access to modern healthcare, making the world-class healthcare provided to the accused at the Tribunal appear unfair to many victims. It is hard to explain lofty, abstract goals such as promoting the “rule of law” to victims who cannot afford to even see a doctor.

Nevertheless, by providing medical care to the accused out of respect for fair trial and human rights principles, the Tribunal can present a counterpoint of compassion to the terror, torture and degradation Vann Nath and many others suffered at Tuol Sleng S-21 and other Khmer Rouge prisons throughout Cambodia. Although protecting the rights of former Khmer Rouge leaders can at times be a bitter pill to swallow, doing so, even when it is difficult or unpopular, provides a lesson for the future of which Vann Nath could be proud: that every human being has a right to dignity and equality under the law.

Vann Nath was a friend to many of us and will be missed by everyone at the Center and many others throughout the world. We will all miss, but draw inspiration from, the palpable sense of peace that emanated from within him.

 Youk Chhang, Director, Documentation Center of Cambodia

Research Seminar – Professor Ngaire Naffine

The Duck/Rabbit and the Common Measure: The Canonical Debate about Abortion and Euthanasia Reconsidered

Professor Ngaire Naffine, University of Adelaide

Wednesday August 31st, 1-2pm

Faculty of Law – Aras na Laoi 1.64 (1st floor)

Ngaire Naffine is a Professor of Law at the University of Adelaide. She has published in the areas of criminology, criminal law, jurisprudence, feminist legal theory and medical law.  Her most recent work explores the influence of philosophy, religion and evolutionary biology on law and the legal person. She is a member of an interdisciplinary research team studying the law and ethics of consent to embryo and organ donation. She has been a Visiting International Scholar at the Hastings Bioethics Center in Garrison New York; a Visiting Scholar in the Faculty of Law, Birkbeck College, University of London, and the European University Institute in Florence Italy; and Baker-Hostetler Professor of Law at Cleveland- Marshall College of Law, Cleveland.  Professor Naffine is a Member of the College of Experts, Humanities and Creative Arts Panel, ARC and a Fellow of the Academy of Social Sciences of Australia.  Publications include: Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person, Hart Publishing, Oxford, Jan 2009; Gender and Justice (editor), Ashgate , Aldershot, England 2002 pp 482; Are Persons Property? Legal Debates about Property and Personality (with M Davies) Ashgate , Aldershot, England, 2001 pp 209; Intention in Law and Philosophy (co-editor with Rosemary Owens and John Williams), Ashgate, Aldershot, England, 2001 pp 377; Feminism and Criminology, Polity Press, Cambridge, 1997; Sexing the Subject of Law (co editor with Rosemary J Owens) 1997.

New Issue of the IJLS online

The Irish Journal of Legal Studies (IJLS) run by staff in UCC Law Faculty has a new issue on-line.

Volume 2, Issue 1 is a special edition on the Presumption of Innocence, which arises out of a seminar on that topic held at Dublin Institute of Technology at the end of 2010. The Forward to the issue was written by Mr Justice Hardiman who comments that “All in all, these papers represent a refreshing, sometimes challenging, attempt to analyse the position of the presumption of innocence in our law and the effect which it is permitted to have in practice.”

The issue contains four articles on the topic of the presumption of innocence:

If you want further information regarding making a submission or just want updates on the IJLS’s content then contact the journal at enquiries@ijls.ie

The IJLS is sponsored by NAIRTL (the National Academy for Integration of Research Teaching and Learning).

Long Awaited Report of the Gender Recognition Advisory Group

CCJHR blog is pleased to be able to repost this blog by Dr Tanya ni Mhuirthile from Human Rights in Ireland

Last week, the report of the Gender Recognition Advisory Group (GRAG) was finally published. The GRAG was established last year to advise the Government on the introduction of gender recognition legislation for Ireland. As was recently identified in the report of the Council of Europe Commissioner for Human Rights, Ireland is one of only three EU member states (in addition to Lithuania and Luxemburg) where there is no legal mechanism to recognise the preferred gender identity of individuals who wish to be recognised in a gender other than that recorded at birth. The report is to be welcomed in that it represents an engagement by the State with this issue at last. However, it is also a missed opportunity to learn from and improve on the experiences of other states on this issue.

The report proposes establishing a scheme where a person whose birth is registered in Ireland, is at least 18 years of age, has a clear and settled intention to live in the preferred gender permanently and has lived in that gender for at least two years can apply to be legally recognised. In addition to these criteria the applicant must supply evidence of diagnosis of gender identity disorder, or evidence of having undergone gender reassignment surgery, or evidence of legal recognition of preferred gender identity by another jurisdiction. Furthermore persons in an existing valid marriage or civil partnership are excluded from the scheme.

Effectively this amounts to an adoption of the scheme available in the United Kingdom under the Gender Recognition Act, 2004. As I’ve blogged previously here the direct importation of that scheme is problematic in the Irish context. Most controversially the exclusion of those applicants who are married or in a civil partnership raises clear Constitutional questions. To effectively mandate that a happily married couple divorce prior to granting recognition is, I argue, a direct interference with the special Constitutional position of the family based on marriage. The GRAG however was of the different opinion. It contends that as same-sex marriage is currently not provided for in Irish law any attempt to introduce legislation which would have as an effect the acknowledgement of the legality of same-sex marriage would be vulnerable to constitutional challenge. Furthermore, the GRAG draws support for the ECHR decision of Parry v UK to argue that it is within the margin of appreciation afforded to states on this issue to exclude married applicants from recognition. Regarding those in an existing civil partnership, the group stated that the effect of transition would be the recognition of opposite sex civilly partners whose relationship ‘does not benefit from the full protection afforded to marriage.’ Furthermore it expressed the opinion that failure to require dissolution of a civil partnership when dissolution of a marriage is mandated would potentially result in a constitutional challenge. Additionally this exclusion seems to run contrary to the second guiding principle purportedly underpinning the proposed scheme that ‘[t]he terms and conditions of the scheme should not deter potential applicants from applying.’ I contend that the requirement to divorce or dissolve a civil partnership can only have the practical effect of deterring potential applications.

A second contentious issue is the medical criteria required to ground a claim to recognition. One must have either:

‘a formal diagnosis of Gender Identity Disorder (GID) plus relevant supporting medical evidence, or

medical evidence that the applicant has undergone gender reassignment surgery, or

evidence of the recognition of changed gender in another jurisdiction.’

As is evidenced in the Yogyakarta Principles, the Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)5, and the Recent report of the COE Commissioner for Human Rights, there is a move away from the requirement to have undergone some form of medical and/or surgical intervention prior to granting recognition within international human rights discourse. Furthermore, those EU member states who have most recently introduced, or amended their legal gender recognition mechanisms (Austria, Germany, Hungary, Poland, Portugal, Spain, and the UK – see ILGA Europe’s very useful rainbow map  and gender identity index on this issue) have dispensed with the need for such interventions. Therefore to include it in the proposed scheme, may represent majority practice, but does not represent best international practice on this question.

The introduction of a gender recognition scheme has potential to benefit intersex individuals in addition to transgender people. The GRAG accepts this in its report and notes the many submissions which discussed the question of intersex and the advice from international experts on this issue that intersex be included in any potential scheme. To do so, would be a huge step forward in safeguarding the rights of intersex people. At present intersex applicants are excluded from the scheme in the UK as the definition of gender identity disorder explicitly excludes them. Thus potential inclusion of intersex applicants in an Irish scheme would represent a welcome improvement on schema elsewhere. The discussion of intersex in the report is important in that it is the first time that intersex has been discussed in any official documentation of the Irish State. The GRAG notes in the report that it is not possible to access firm data on the number of potential intersex applicants under such a scheme.  Thus the GRAG concluded that a proper consideration of intersex would require more research and medical expertise than was currently available to it. Furthermore, the GRAG stated that as it was only required by the terms of reference to address the situation of transsexual people, and noted the ‘difficulty of drafting legislation in the absence of clear definitions and the variety of conditions encompassed within the “intersex” term’. Thus the GRAG concluded that it felt unable to recommend the inclusion of intersex individuals in this scheme. 

The final point I wish to highlight in this blogpost is the establishment of a Gender Recognition Panel. The GRAG reports that the majority of the submissions received were in favour of a statutory panel as an adjudicating body on this issue as opposed to the creation of a court process. It was of the opinion that following the initial surge of applications, the numbers seeking recognition were likely to be ‘quite low’ going forward. The GRAG recommends that the panel consist of a person with medical expertise, a person with legal expertise and a lay person representing wider civil society as Chair. It further recommends that the Panel members should be appointed for a fixed period and the Panel should be independent in the exercise of its functions. Given the tiny numbers of medical professionals who have expertise in gender identity issues in Ireland, it is not an unreasonable prospect that the person who writes the medical opinion confirming diagnosis of gender identity disorder and/or having undergone gender reassignment surgery could be the medical expert on the Panel. Such a situation only increases the gate-keeping role afforded to medical professionals on this issue.

So in conclusion, the establishment of a scheme to recognise the preferred gender identity of applicants is to be welcomed. However, this proposal by the GRAG misses the opportunity to learn from problems and challenges exposed elsewhere, particularly concerning the UK scheme, to produce proposals which would ensure respect for the rights of all those, whether transsexual, transgender or intersex, who might benefit from gender recognition legislation.

Professor Jonathan Simon: Mass Incarceration on Trial

The Centre for Criminal Justice and Human Rights at University College Cork is pleased to announce that Professor Jonathan Simon will give a seminar entitled “Mass Incarceration on Trial” on Wednesday 13th July 2011. 

Professor Simon is the Adrian A. Kragen Professor of Law at the University of California Berkley School of Law. He is the author of “Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear” (2007) and “Poor Discipline: Parole and the Social Control of the Underclass,” 1890-1990 (1993).He is also maintains and contributes to the Governing through crime and Berkley Jurisprude blogs. 

The seminar will take place at 3pm on Wednesday 13th July, 2011 in the Moot Court Room, Faculty of Law, Áras na Laoi, UCC. 

If you are interested in attending please email ccjhr@ucc.ie or phone 021 490 2728 by Monday 11th July 2011.

CCJHR 5th Annual Criminal Law Conference

Unfortunately we are not in a position to proceed with the CCJHR Annual Conference entitled “Different Approaches, Same Justice?: Lessons to be Learned Across the White/Blue Collar Divide” this Friday due to circumstances beyond our control.  We hope that the Conference will proceed at a later date.

Further details will be posted on this site once available

The CCJHR is pleased to announce the programme for its 5th Annual Criminal Law Conference entitled Different Approaches, Same Justice? Lessons to be learned across the White/Blue Collar Divide.

The aim of the conference is to review current debates on how those convicted of crime are treated.  Traditionally criminal justice responses have differed depending on the nature of the crime, with imprisonment being the preferred form of deterrence/punishment for ordinary crime and self-governance for white collar crime.

More recently, there have been calls for white collar crime to be treated more punitively.  It is hoped that the various perspectives offered in this conference will contribute to this debate.

The Conference will take place in the Brookfield Health Sciences Complex, Room G_02 on Friday 17th June, 2011 and will run from 10.00 a.m. to 5.00 p.m.

Contributors include:

  • Dr.Fiona Donson, Faculty of Law, University College Cork
  • Dr. Niamh Hourigan, Sociology Department, University College Cork
  • Dr. Deirdre Healy, School of Law, University College Dublin
  • Jane Mulcahy, Research and Policy Officer, Irish Penal Reform Trust
  • Professor Sandeep Gopalan, Head of the Department of Law, National University of Ireland, Maynooth.
  • Joe McGrath, PhD Candidate, Faculty of Law, University College Cork

The full program is now available and can be accessed online here.

Bookings can be made online by clicking here

More information can be obtained from Noreen Delea – Tel: (021)   490 2728 Email: ccjhr@ucc.ie Web: http://www.ucc.ie/en/ccjhr

European Prisoners’ Children Week

Fiona Donson

This week is European Prisoners’ Children Week and is being marked by Eurochips and its partners. the families of prisoners are an oft  forgotten group. Children in particular often suffer serious ill effects as a result of losing a parent to prison.

This issue was recently explored at an excellent conference hosted by St. Nicholas Trust in Cork entitled Doing Time – Outside. Speakers from a variety of organisations from the Irish Prison Service, to Bedford Row, St.Nicholas Trust and Partners of Prisoners UK, all made important and often moving contributions to an event which laid bare the challenges that arise in this area.

Organisations working with prisoners families provide invaluable support, counselling and services to this forgotten group often on very little money. And their cause if given little publicity or sympathy with the view taken by most, including those in the criminal justice system, that the prisoner has brought it on themselves, and therefore by connection on their own family too. However, the impact of imprisonment goes far beyone the offender. Eurochips notes in their literature that:

Each year, more than 800,000 children within the European Union are affected by the incarceration of a parent. These children frequently experience trauma stemming from a violent separation from their parent, social stigmas, and prejudices associated with having imprisoned parents, and violations of their rights.

For the children of prisoners the issue is one of fundamental rights including their right to family life and right to health as enshrined in the Convention on the Rights of the Child.

Eurochips is currently running a campaign including a petition calling for the right of children of prisoners to have their right to family life respected. Their desire to

-improve prison visiting conditions for children including longer hours, awareness raising and training for prison staff, and permission to maintain regular contact with a parent in prison

and

-create national monitoring groups to obtain more information on this vulnerable group of children and maintain quality visits

are essential and realistic goals which should be realised in any modern prison system.

The Applicability of Common Article 3 to the Geneva Conventions to Armed Attacks by Transnational Armed Groups

Anna Marie Brennan

This post examines whether armed attacks by Transnational Armed Groups come within the meaning of Common Article 3 to the Geneva Conventions as supplemented by Addition Protocol II (CA3).

A Transnational Armed Group can be described as a non-state armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. The best example of a Transnational Armed Group is Al-Qaeda. Other examples of Transnational Armed Groups include Jemaah Islamiyah and the Palestine Liberation Organisation. However, these particular Transnational Armed Groups are more limited in geographical scope and vary in organisation and objectives. At present, Al Qaeda is the only Transnational Armed Group operating on such a wide geographical basis with training grounds in Pakistan, Afghanistan and Uganda. Al-Qaeda has also proven itself to be global in outlook by carrying out attacks in locations such as Madrid, London, Bali, Karachi and New York.

Two requirements define the scope of application of CA3: (1) the existence of an armed conflict; and (2) that it is a non-international armed conflict. However, characterising attacks by Transnational Armed Groups as an armed conflict within the meaning of CA3 raises major policy questions. First of all, ascribing ‘belligerent’ or ‘combatant’ status to members of Transnational Armed Groups might invest members of such groups with rights and privileges under International Humanitarian Law (IHL). Secondly, the classification of attacks by Transnational Armed Groups as an armed conflict may also symbolically aggrandise the Transnational Armed Group by suggesting that states consider them much more than a sinister criminal organisation. Lastly, categorising attacks by Transnational Armed Groups as an armed conflict could also immunise members of such armed groups from prosecution for proportional attacks directed against military targets. As a result of these issues, it is difficult to categorise attacks by Transnational Armed Groups under either traditional perceptions of war or contemporary ideas of armed conflict. Nevertheless, the attacks do exhibit several characteristics of armed conflict including their purpose, coordination and intensity.

Nevertheless, the question whether CA3 regulates armed attacks by Transnational Armed Groups still remains. The text of CA3 provides very little guidance on the issue. In reality, the text of CA3 is only helpful in determining the type of armed conflicts it does not regulate by identifying its field of application as ‘armed conflict not of an international character.’ Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has arguably clarified the definition of armed conflict in IHL. In particular, the Appeals Chamber in Prosecutor v. Tadic (Tadic) concluded that:

[A]rmed conflict exists whenever there is a resort to armed force between States and protracted armed violence between … such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole of the territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.

Two features of this definition clarify the definition of ‘armed conflict.’ First of all, the definition suggests that an armed conflict exists only if the armed group controls a segment of the state’s territory. Secondly, the definition categorises internal hostilities as an armed conflict only if the violence is protracted. Jinks notes that both requirements would limit the conditions under which CA3 applies. Even though the definition laid down by the ICTY is persuasive, a careful reading of the Tribunal’s reasoning makes clear that it does not restrict the scope of application of CA3 to Transnational Armed Groups.

The Tribunal’s definition does not necessitate that armed groups have control over territory within the state. The Tribunal defines the circumstances in which IHL applies by carefully analysing its general scope of application, the temporal scope of application and the territorial scope of application. Jinks notes that by defining the territorial field of application for non-international armed conflict the ICTY confirms that IHL is applicable in territory that is no longer under the control of the state and in the whole of that territory.

In addition, the ‘protracted’ armed violence prerequisite does not limit the application of IHL in any considerable way. The conclusion reached by the ICTY Appeals Chamber in Tadic indicates that most instances of internal violence would satisfy this requirement. Whether the internal violence is protracted is determined by reference to the entire time period of the armed hostilities from the initiation to the cessation of the hostilities. Moreover, IHL applies to all acts committed during an armed conflict even if the act was committed before the point at which the ‘protracted’ threshold was crossed. To be precise, the ‘protracted’ requirement does not exclude acts committed in the early stages of a non-international armed conflict. The ‘protracted’ armed violence requirement can be best appreciated as little more than a reiteration of the rule excluding isolated and sporadic acts of violence from the scope of IHL. Furthermore, the jurisprudence of the ICTR established that armed violence over a period of a few months meets the ‘protracted’ requirement and, because of the level and intensity of the armed violence, it constituted an armed conflict within the meaning of CA3.

In conclusion, the intensity, coordination, and pattern of attacks by Transnational Armed Groups against the United States and other states make clear that attacks by Transnational Armed Groups are not simply isolated and sporadic acts of violence and constitute an armed conflict within the meaning of CA3. Attacks by Transnational Armed Groups have involved the coordinated use of force and have demonstrated their capability to operate globally even against military and diplomatic targets. It is undoubtedly clear that the organisational capacity of Transnational Armed Groups such as the Palestine Liberation Front and Al Qaeda distinguishes them from ‘mere bandits’ in that they indisputably possess the de facto capability to carry out sustained armed attacks against states.

Gender Recognition Advisory Group: One Year On and No Report

Dr Tanya ni Mhuirthile

This piece was originially published as an Analysis piece in the 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 ‘to advise the Minister for Social Protection on the legislation required to provide for legal recognition of the acquired gender of transsexuals’. 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 Foy’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 ‘disconnected from mainstream thinking’ 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 GRAG’s language confines itself to recognition of ‘the changed gender of transsexual persons’. ‘Transsexual’ 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 GRAG’s thinking as to who would be protected by gender recognition legislation is restrictive.

The GRAG’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 ‘become a good model for other states which are currently considering improving their legal framework for transgender persons’.

The UK’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 person’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 ‘not concurrent with a physical intersex condition’ 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 ‘Supporting LGBT Lives’ 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 ‘correction of an error’ 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 – 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). It’s due, we’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.

Equality Tribunal Decision on Transgender: A Good Beginning Towards the Protection of the Rights of Transgender People

 

CCJHR blog is pleased to be able to repost this blog by Dr Tanya ni Mhuirthile from Human Rights in Ireland

The recent decision of the Equality Tribunal that discrimination on the basis of gender identity amounts to a breach of rights under the Employment Equality Acts is to be welcomed. It represents a huge step forward in terms of protection for those who have questioned their gender at birth.

As has been well reported (here and here), the case before the Equality Tribunal concerned a male-to-female transgender woman, Louise Hannon, who was constructively dismissed from her workplace when she revealed her preferred gender identity to her employer. A large part of the treatment for gender identity disorder requires ‘real life experience’ where the person lives in the preferred gender role without the need to revert to the gender role of birth. In this case, her employer informed Ms Hannon that she could only dress in her female identity while in the office and would need to change to her previous male identity when meeting clients. She was not permitted to use the female toilet at her workplace, even though it was not unusual for her male colleagues to use it if the male toilet was occupied. Despite a number of requests to do so, her employer failed to provide her with an email address in her new legal name. Finally, her employers requested that she relocate to new offices and, as these were not yet ready, that she work from home for a short while. When, having on a number of occasions over the ensuing months informed her employer that she was finding it impossible to work from home, Ms Hannon requested that she be permitted to return to the office she was informed that a new person had started working in the office and that there was no room for her. The Equality Tribunal found that there is a legal obligation on employers to enable people with gender identity disorder work in their preferred gender. In this case, it found that the employer’s request that the complainant switch between male and female identity was ‘clearly ludicrous’. Thus the tribunal held that the approach of her employer to the issue of Ms Hannon’s gender identity amounted to discriminatory dismissal on gender and disability grounds.

This is a historic decision as it represents the first time where the Employment Equality Acts have been successfully used to provide protection from discrimination for transgender people. This is an important step towards securing the long term wellbeing of a small but marginalised group within Irish society.

Transphobia is the fear of, or aversion to, or discrimination against transgender people or people who transgress (or are perceived to transgress) norms of gender identity or gender expression. Consequently, it has a negative impact on a person’s ability to fully participate in society. Transgender people face daily discrimination, as the facts of this case clearly illustrate. The report ‘Transphobia in Ireland’ produced by Transgender Equality Network Ireland (TENI) in 2009 identifies the wide ranging nature of transphobia experienced in Ireland. Of particular concern in this regard is the lack of express protection under equality or hate crime legislation for transgender people. Under Irish equality legislation, one of the grounds for discrimination the ‘gender ground’ is currently defined as ‘that one is male and the other is female’. Although this decision of the Equality Tribunal is to be welcomed for interpreting the gender ground as including trans identity, such protection could be considerably strengthened by a simple amendment of equality legislation to include expressly the phrase ‘ or on the grounds of gender identity and/or gender expression’ within the gender ground.

The social disenfranchisement experienced by trans people is heightened by the lack of legislative framework to enable the recognition of trans people’s preferred gender identity. Famously, in the Foy case, the High Court ruled that this absence is incompatible with the State’s obligations under the European Convention on Human Rights. (I’ve previously blogged about the introduction of such legislation here.) The Gender Recognition Advisory Group is due to report to Joan Burton, Minister for Social Protection shortly with proposals for the introduction of gender recognition legislation. Such legislation will ensure that a person is legally treated as being of the preferred gender identity from the moment of recognition onward. However, it will not guarantee protection for those people who are not yet recognised. Therefore, people who are at the most vulnerable and early stages of the transition process will not be explicitly protected by legislation. To ensure that their dignity is fully respected, the Equality Acts must be amended to account for issues of gender identity and gender expression.

The recent census represents a golden opportunity missed in terms of assessing the multiplicity of gender identities in Ireland. In response to the question on gender only two options were available on the census form: male or female. Had a third box ‘other’ with space for inclusion of one’s own identity been available, this would have been a simple and inexpensive way to research the issue of gender identity in Ireland. The failure to do so reflects the institutionalised invisibility of transgender identities. Ireland’s civil and public service is sorely lacking in policies on gender identity issues. With the notable exception of the passports legislation which will grant a passport reflecting a person’s preferred gender identity in certain circumstances, interaction with officials of the State is heavily dependent on the goodwill and understanding of the individual public servant. This situation needs to be rectified by the introduction of trans friendly policies which ensure parity of treatment with all other people irrespective of gender identity.

The decision of the Equality Tribunal is a first step towards safeguarding the rights of transgender people. However, significant gaps in protection persist. The Equality Acts should be amended to account for trans experience. Similarly, policies on gender identities should be introduced throughout the civil and public service. Finally, broad and inclusive gender recognition legislation should be enacted. Taken together, these measures will help to ensure equality and respect for transgender people.