Gender Recognition Bill 2014 - 2nd stage: “Bill must aspire to the highest human rights standards”

23.01.2015

Senator Zappone spoke strongly in support of the Gender Recognition Bill 2014 and acknowledged the leadership of the Tanaiste in getting the legislation to the Oireachtas. However, she raised the concerns of the trans community with regard to the bill concerning the age requirement, medical requirement and single requirement. Read more below. 

Senator Zappone is a long term champion of trans rights. Last year she published her own bill- Legal Recognition of Gender Bill 2013, which is considered by the trans community as gold standard of gender recognition legislation. Senator Zappone's bill is based on the principle of self-determination. 

Read Senator Zappone's speech here. 

Seanad Eireann, January 21st, 2015.

I welcome the Minister to the House.

Along with my colleagues, I welcome the trans people, their families and allies in our Gallery. We have a full house, which is great to see. Broden Giambrone from TENI is there, along with representatives of FLAC, LGBT Noise, TransParenCI and many others to whom many others have paid tribute. I specifically mention Dr. Lydia Foy, who was with us earlier today. Her spirit still fills the Chamber. Throughout the decades she must have often thought this day would never come but it has. We all owe her a major debt in that regard. I acknowledge the leadership of the Tánaiste in getting the Bill delivered to the Oireachtas and the extensive and detailed work of the civil servants in her Department. The Bill would not have happened without her or her willingness to listen, with empathy, to the aspirations, hopes, pains and the struggle of trans people and their families.

  This is a very significant Bill but it is regrettable that it has taken successive Irish Governments more than 20 years to legislate for gender recognition and that we are now the last European country to enact legislation to meet our international legal obligations under the European Convention on Human Rights. As there were injustices in the past, this Bill must maximise the potential of the law to protect the dignity and self-determination of transgender people in our society in future. We must ensure that the Bill aspires to the highest human rights standards. Why should we not? The unfortunate distinction of being the last country in Europe to legislate for gender recognition grants us one advantage in that we have a unique opportunity to draw on best practices and experiences around the world, as Senator Power and others have mentioned already, and base our legislation on current international standards. The gender legislation we pass should be based on international best practice, so I welcome the Bill before us. I hope the Minister is open to amending the Bill in order that the Act, when passed, will achieve that aim.

  The Minister believes it is vital that we, as lawmakers, listen to the people directly affected by the legislation. Last week I hosted a civic forum on gender recognition in Ireland in Leinster House and I met interested, passionate, engaged citizens, advocates and champions. Many of them are here today and are willing to engage in a productive and constructive manner in this legislative process in order to influence legislation that will affect their lives. We should all do so when our fundamental rights are at stake. I witnessed a powerful civic demonstration of endurance from many of the people who came, especially Dr. Foy. As the Tánaiste and others indicated, Dr. Foy is waiting over 21 years while fighting for her right for recognition  

All of us as lawmakers were keen to see that the human rights of trans people are progressed in a just, fair and equal manner. I will be bringing forward amendments, along with others which have been suggested to me by the real people whose lives and fundamental rights are affected by the proposed legislation. There are a number of serious flaws in the proposed legislation and we should utilise the legislative process to correct the flaws. I will mention some which have already been raised, as they are the primary concerns. We will probably introduce some technical amendments as well on Committee Stage.

  The minimum age requirement is an issue close to my heart. Perhaps it is because I have met so many young trans people, some of whom are under 16. While it is welcome that the proposed legislation includes a pathway for legal recognition of those aged 16 and 17 who wish to change gender, I and other Senators fear that the criteria required will be too restrictive and onerous on the young people they are meant to protect. Young people aged 16 and 17 will require parental consent, a letter from a primary treating medical practitioner, another letter from a medical practitioner and a court order to access legal recognition. That is overly protective. The process of gaining so much supporting documentation could take up to two years or longer, as we heard this morning in our briefing, so this process does not really protect some young trans people in that regard.

  There is also a blanket exclusion on young trans and intersex people under 16. These are our most vulnerable young people and they will have no voice at all. Lowering the age of recognition would improve the lives of many young trans people who could obtain legal recognition prior to leaving school and change their necessary identification documents. I have heard from several young people and families that legal recognition would not only make their lives easier but it would also validate them for who they truly are. As Sam Blanckensee stated earlier this morning, there is no legal protection for children under 16 in our schools within the Bill. The question is whether this is in the best interests of our children

  The Bill requires an applicant not to be married or in a civil partnership, which means that married trans people must divorce their spouse if they want their gender to be legally recognised. One may be either legally married or have gender legally recognised but not both. The requirement will mean an individual must choose between family and identity. How can we ask families to break up and what about the negative impact on children and spouses? Even if people want a divorce, it is not easy, given our divorce legislation. It was interesting to read an article by Carol Coulter in yesterday's edition of The Irish Times that reminded us why we have onerous requirements for this. For example, those seeking a divorce must live separately for four years out of five. This issue is in our Constitution, as distinct from our law. There is also a requirement that the parties must say the breakdown in the relationship is irreconcilable.

The inevitable irony is that trans people who are happily married - some of us have met them - and wish to keep their family intact and protected will not be eligible for a divorce unless they perjure themselves in court. What will these individuals do? As Senator Power argued, it is unconstitutional. The Bill is not protecting their families, as the Senator stated so eloquently and Dr. Fergus Ryan mentioned this morning. The fairest approach would be to delete the requirement entirely. It would be an acknowledgement that these families exist and that the State will protect them. However, if it is not possible, I concur with Senator Naughton on a recommendation, coming from TENI and others, to put in a clause whereby forced divorce will no longer be required should the Irish public adopt civil marriage in 2015.

  On the medical criteria to get legal recognition, in the Bill trans people are required to submit a statutory declaration - I hope they will be so proud to do so when this comes through - of a settled and solemn intention of living in their preferred gender identity for the rest of their lives.

will be done. They are also required to submit a certificate in writing of a medical practitioner confirming transition. The criteria inextricably links medical treatment with a legal right. By defining medical practitioners as a psychiatrist or endocrinologist who must perform a medical evaluation which, as others have stated, is not defined in legislation, it runs the risk of pathologising the community by requiring a de facto diagnosis or worth and, further, as Broden Giambrone stated this morning, it stigmatises them and they need a third party to sign off on their identity. The Private Members' Bill I published, in 2013, with Senators van Turnhout and Mac Conghail, promoted the self-determination of trans people in a simple and legally robust statutory declaration process. That is what they are doing in other countries where best practice is being observed.

  In Ireland, we have fallen behind the evolution of modern society in this respect by failing for so many years to legislate for the recognition of those people who do not conform to the traditional binary model of gender and those who regard the biological sex into which they are born as not their known or felt gender. All they wish is to have a law that allows them to exercise the human right to determine their own identity. We have an opportunity now to legislate for that based on international practice and our visitors' fantastic advocacy and example. I hope the Minister takes that opportunity to show the trans community, and the international community that has long called for Ireland to fulfil its obligations under the ECHR, that in Ireland, in 2015, we have a society that accepts, recognises and protects all our citizens.

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