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.