Gender recognition is ‘transformative’, but bill falls short

Transgender people no longer need a doctor’s approval of their identity. They can just self-declare, but children and married people can’t, says Tanya Ní Mhuirthile.

THESE are historic days for human rights in Ireland. The Seanad passed the Gender Recognition Bill, 2014, which will go to the Áras for President Michael D Higgins to sign into law. This is momentous. No longer is Ireland alone among EU states in not legally recognising the preferred gender identity of trans and intersex people.

The fanfare surrounding the introduction of the legislation is deserved. This bill creates simple self-declaration. A transgender person will not require any certification by a doctor, supporting either a diagnosis of illness or the authenticity of an identity claim, to ground an application for recognition. The Irish State has recognised that trans and intersex people are the experts on their own identity. Finally, the medical gatekeeper has ceased to block access to legal rights. In instituting the self-declaration of gender recognition, Ireland has become the fourth country in the world to disentangle access to human rights from medical treatment. This is to be lauded.

Yet, before the celebrations become too raucous, there are two important discordant notes within the legislative scheme: the continuing exclusion of married applicants and the inadequate acknowledgment of the recognition of trans and intersex children and young people. Both of these issues have the potential to undermine the legislation, by rendering it unconstitutional.

First, the marriage-equality referendum was overwhelmingly passed by the Irish people in May. Shortly afterwards, the Cabinet approved the deletion of the forced divorce clause from the Gender Recognition Bill. Under the terms of the bill, applicants must be single prior to making an application for recognition. Therefore, applicants who were validly married in their original gender, and whose marriages survived the transition, would be required to dissolve these marriages: they would have to choose between exercising their right to remain married or their right to be recognised as their true selves. This is illogical, given that marriage equality exists. Furthermore, to require a happily married couple to divorce is unconstitutional, as divorce in Ireland is only legal where the marriage has irreconcilably broken down, which these marriages have not. Yet, despite the approval of the Cabinet to remove it, the requirement to be single remains. Thus forced divorce endures.

Secondly, section 12 of the Gender Recognition Bill sets up a scheme whereby those who are aged between 16 and 18 may apply to the circuit court for an exemption to apply for recognition before the age of 18. This is problematic for two reasons: it contravenes new children’s rights amendments to the Constitution, and it makes no provision for those under 16.

The newly inserted, Article 42A of the Constitution guarantees to protect and vindicate the rights of all children. It further guarantees that the best interests of the child will be central to all proceedings relating to that child, and that the views of all children shall be ascertained and given weight, having regard to their age and maturity, in relation to any proceedings involving them.

Section 12 of the Gender Recognition Bill makes no mention of the best-interests principle, nor does it create an explicit space for the voice of the child to be heard in court proceedings: the ‘next friend’ of the child makes the application on their behalf. The section requires two consultant doctors to certify that the child is sufficiently mature to make an application; understands the consequence of an application; makes it of their own free will and is undergoing a process of transition to the preferred gender. There is no requirement for active participation of the child in this deeply personal process, which has a direct impact on the legal status of the child. This is contrary to the rights of children to have their opinions taken into account, as guaranteed by the children’s rights amendment.

Nowhere does the bill explicitly require courts to consider the best interests of the child when deciding whether to permit a child to make an application for recognition in their preferred gender.

As regards the under-16s, Tánaiste Joan Bruton has said that there is no need to include them in the bill. She said that intersex people will not require the bill to change the gender marker recorded on the birth certificate, due to the facility to correct an “error of fact” in the Civil Registration Act, 2004. However, according to the judgement in the 2002 Foy case, a birth certificate is merely a “snapshot of matters on a particular day”.

The legislative scheme contained in the Gender Recognition Bill is transformative. It dispenses with the need for doctors to certify the identity of applicants and this is wonderful. However, it is not a perfect piece of legislation: the persistent requirement to be single and the exclusion of children’s rights emasculate the bill. It is not the champion of trans rights it professes to be. While not quite a case of the emperor’s new clothes, the emperor is certainly sporting a flimsy frock.

Tanya Ní Mhuirthile is a senior lecturer in law at Griffith College. She is a legal consultant to Transgender Equality Network Ireland, and legal consultant to Intersex UK.