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Dáil Diary no 20- 5 March 2015

Gender Recognition Bill- Why would Government postpone doing the right thing...?

The Gender Recognition Bill 2014 was debated in the Dáil Chamber today, Thursday, 5th of March. Here's my contribution on the Bill.-

"The bill is both long overdue and welcome, but needs to have some vitally important amendments taken on board before it’s fit for purpose.

Minister Burton has stated that the legislation “compares very favourably with the equivalent legislation in many other countries in Europe.” The problem is that the majority of countries in Europe have very poor legislation in this area, with, presently, two exceptions.

In June last year The Danish parliament passed a bill allowing transgender people to obtain official documents reflecting their gender identity without needing to be diagnosed with a mental disorder or undergo surgeries resulting in irreversible sterilization. Malta and Argentina also have similar legislation in place.

Procedures to obtain legal gender recognition violate fundamental rights in Finland, France, Norway, Belgium and Germany, while we in Ireland, until this long overdue legislation will come into effect, had no procedure at all. But, just as the Government failed to introduce international best practice with the recent GSOC Bill which was a huge disappointment, here too the Government is refusing to take the opportunity to do what’s best – instead we are willingly joining the ranks of those who are content to violate international human rights law by interfering with the privacy, and self-determination of their citizens. 

The condition in section 9 that introduces an age restriction of 18 years for those who can make an application for a certificate, infringes the rights of transgender people.

The Ombudsman for Children has criticized the age restriction, highlighting that, if implemented, it would fail to improve the situation of transgender children and adolescents, who in many cases already experience isolation and discrimination. She recommended that parents be allowed to apply for a gender recognition certificate for their children under 16, and that those over the age of 16 should be allowed to apply for themselves.

Article 12 of the UN Convention on the Rights of the Child, which Ireland has ratified states that “State 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.” If this condition is not amended to allow a more progressive approach, Ireland will continue to be in violation of human rights law.

For some bizarre reason the legislation insists that the applicant cannot be married or be in a civil partnership. The logic behind this condition is hard to fathom, but presumably someone in a mixed sex marriage would, post-registration, technically be in violation of our draconian – and possibly soon to be extinct - ban on same sex marriage. This condition cannot stand.

Thirdly, the legislation insists that the applicant “has a settled and solemn intention of living in the preferred gender for the rest of his or her life”. In a striking reversal of the proposed spirit of the bill, this provision would legally lock someone into their newly chosen identity. Ironically, this creates a situation for the newly registered where their right to self-determination as outlined in Article 1 of International Covenant on Civil and Political Rights, which we ratified in December 1989, is just as violated as it was before this legislation was proposed. This beggars belief.

A further flawed provision from a human rights perspective is that the applicant must acquire a statement from a medical practitioner stating that the applicant “has transitioned or is transitioning to his or her preferred gender” and “that the medical practitioner is satisfied that the applicant fully understands the consequences of his or her decision to live permanently in his or her preferred gender.” Here we return to the ridiculous ‘one-change-per-life’ provision. Furthermore, this implies that the State feels that these people are suffering from some kind of psychological abnormality, and that gender is a matter solely determined by the biological.

If the bill really did respect the rights of the Irish citizen to self-determination, it would follow best practice and embrace the Danish position where they have ensured that transgender people can obtain legal recognition of their gender through a quick, accessible and transparent procedure in accordance with their own sense of their gender identity.

The Bill is a welcome step forward, but it is not up to the task of allowing transgender people to lead lives free from interference. It fails utterly to address the rights of young people, shows a certain level of disrespect in its medicalisation of transgender people, and through the lock-in conditions, undermines the central, professed spirit of the legislation.

We can surely do better than this."

Mick Wallace.

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