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.

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.