Gender Recognition Bill 2014 - Committee Stage: Senator Zappone’s proposal for a review accepted

12.02.2015

Senator Zappone put forward a number of amendments for the Committee Stage of Gender Recognition Bill 2014. 

Senator Zappone moved amendment No. 1:

"In page 5, between lines 16 and 17, to insert the following:
"(3) The Minister shall, not later than 2 years after the date on which the Act is enacted, and again not later than 5 years after that date, carry out a review of the operation of this Act assessing, in particular, its consistency with international best practice in the field of gender recognition and its compliance with national, regional and international equality and human rights standards, and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.".

Senator Zappone's remarks: 

I welcome the Minister of State. The amendment provides that the legislation will be reviewed within two years and again within five years to ensure it is in keeping with international best practice in the field of gender recognition and international human rights and equality standards. The Minister of State said on Second Stage that the Bill would be reviewed relatively soon if the marriage equality referendum was passed and that he would work night and day to table an amendment to reflect that result. I applaud and welcome his commitment to amend the Bill in this way. The amendment relates to the entirety of the legislation but because of the injustices of the past, it needs to maximise the potential of the law to protect the dignity and self-determination of transgender people. There is an ongoing debate as to how progressive the Bill is. The Minister of State has argued that it is, and I accept that this is the case in some respects, but it is not in others. If it adequately protects the right to self-determination and for a person to be recognised as a person before the law, a commitment to review the Bill in this way will demonstrate the Government's intention that our statutes will be human-rights-compliant on an ongoing basis. That is why I have moved the amendment.

Many Senators including David Norris, Ivana Bacik, Marie Moloney, Paschal Mooney, Averil Power supported the amendment. 

Minister of State, Kevin Humphrey's response: I thank the Senators for their contributions on this. I also thank the Senators who met and engaged with me privately. It was very constructive. While this is the formal setting, much hard work and discussion has been done elsewhere by many Senators on this legislation.

  With no disrespect to the Senators who made points regarding later amendments, I will not address those points but the amendment before us. First, I do not propose to accept the amendment. Section 6 provides for the Minister to produce a report on the operation of the legislation on an annual basis. It is clearly important that the impact and effectiveness of this ground-breaking legislation be carefully assessed over time. Senator Norris referred to the rapid change that is occurring. Even since the day we started drafting the legislation, our understanding has changed quickly. My understanding and education on this issue have increased over the weeks and months as we examined the legislation in depth.

  The proposal to provide for a review mechanism has merit and I will give it detailed consideration. I have spoken to the Tánaiste about it in detail and I will table an amendment to that effect on Report Stage. I have listened very carefully, and hopefully I will have the amendment prepared and circulated as quickly as possible.

The Minister's received positive reaction among the Senators.

Senator Marie Moloney:   Great stuff.

Senator David Norris:   I welcome the Minister's comments. This is exactly the spirit of co-operation we look forward to in this House. I am very happy with what he said.

Senator Katherine Zappone:   I thank the Minister.

An Leas-Chathaoirleach:   He has surprised Senator Zappone.

Senator Katherine Zappone:   In light of what the Minister said, I will withdraw the amendment. I look forward to what the Minister will bring forward on Report Stage. I acknowledge that the Minister's response is the result of careful listening by him and those in his Department. As the Minister said, that included many Senators, which was very impressive. There was also the work of our colleagues in the Visitors' Gallery, who encouraged us to do this work and to speak to the Minister about our concerns. I am grateful to the Minister and the Tánaiste.

Senator Ivana Bacik:   I thank the Minister for his willingness to accept the principle. We are all delighted to hear it, and it augurs very well for the future, given that it is the first amendment. Let us hope there is more of that. It shows the Seanad working at its best and in a constructive and collegiate fashion.

An Leas-Chathaoirleach:   I call Senator Mooney, one of the signatories to the amendment.

Senator Paschal Mooney:   This reminds me somewhat of the county council meetings I used to attend. When a motion was agreed, every member felt it was necessary to stand up and thank everybody. Silence is not non-acceptance, and there are many amendments to be discussed. The Minister has accepted the amendment but will bring forward his own wording on Report Stage. Go raibh maith aige.

Senator Hildegarde Naughton:   I also thank the Minister. It is a great example of parties working together and of the Minister and officials working with the elected representatives.

An Leas-Chathaoirleach:   The Minister is getting much praise, so I will let him respond.

Deputy Kevin Humphreys:   When I get praise, I sometimes wonder how long it will last.

Deputy Kevin Humphreys:   This is ground-breaking legislation on which we have worked hard. It has been a priority for the Tánaiste to ensure that the legislation would be brought to the Houses and given effect this year. It is important that we work in co-operation when dealing with legislation that is extremely complex and new. The amendment is practical and reasonable, and I am delighted to be able to accept it. We had discussions with the Senators earlier but I could not give indications because, as Senator Mooney knows, a long process of negotiations and discussions must take place. However, it is a good reflection on the manner in which Senators approach their work. I thank them for the support they have given me over the last week as we worked together.

Senator Zappone also moved amendment No. 4:

In page 6, between lines 2 and 3, to insert the following:
“ “general medical practitioner” means a medical practitioner who is registered in the Specialist Division of the register of medical practitioners under the medical speciality of “General Practice” or in the General Division of the register of medical practitioners;”.

Senator Zappone's remarks: 

I will speak to amendments Nos. 4 to 6, inclusive, and will leave other Senators to comment on the others. These amendments all relate to the effort to amend the Bill to include a general medical practitioner in the definition of the primary treating medical practitioner. Before I make a few arguments in that regard, because I have spoken about this previously, I want to say that this is not the ideal situation. Under international best practice and some of the best models of law, no form of medical certification is required to accompany a trans person's solemn and statutory declaration that they seek to live in their preferred gender identity. This is not a top-of-the-class type of amendment. It is a conservative amendment.

f a medical certificate is required to accompany a transperson's statement of intention, at the very least we should include a general medical practitioner as part of the definition of the primary treating practitioner. As the Minister of State knows, the Bill as currently formulated requires an endocrinologist or psychiatrist to certify that an applicant is transitioning or has transitioned to the applicant's preferred gender.

  In Ireland the range of medical practitioners who may provide such certification is limited to a small number of specialists. This will lead to significant delays in obtaining appropriate certification. It will prove even more difficult for people who have undergone transition several years ago or abroad. Most transpersons I have spoken with do not have a regular treating endocrinologist or psychiatrist. These amendments would allow a person's GP to certify him or her as having met the requirements contained in sections 9 and 11 of the Act.

  Where an applicant has a regular general practitioner, the GP will likely be more familiar with the applicant's current circumstances and situation, and will be well placed to provide the relevant certification for the applicant. The fact that the definition of the primary treating physician does not include a GP, is at odds with the HSE's view. The HSE has also put forward the view that a GP should be included in this definition, and that the language of the Bill without that is incongruent with current health practice. That is because a person's primary treating medical physician is almost always a GP.

  The current emphasis on medical evaluation clearly suggests diagnosis, medical evidence and medical proof, and is restricted to the applicant. The HSE has also argued that if this legislation - concerning just the primary treating medical physician - draws solely on endocrinology and psychology, it will place excessive pressure on specialised and limited resources as the number of clinicians and health professionals with the relevant expertise in this jurisdiction is very small.

  The HSE estimates that approximately 1,000 people will at some time, on the introduction of the legislation, seek a gender recognition certificate which will place unmanageable pressures on already scarce resources. That is the view of the HSE, in addition to my own view.

  Hopefully, transpersons will be allowed to go to their GP. However, amendment No. 6, which is quite lengthy, is to ensure that the process for recognition is not made dependent on the applicant undergoing surgical, medical or psychiatric treatment, or an evaluation on physical or psychiatric grounds. The measure is simply to emphasise what the Minister of State has already confirmed, namely, that the applicant will not be required to undergo, or have undergone, any surgical or medical treatment, including hormonal or psychiatric treatment, as a precondition to gender recognition.

  This amendment is simply codifying the ministerial promise. There is no legal guidance for medical professionals in filling out their form. If this kind of amendment, or a version of it, is not accepted I think that room will exist within the law for the medical person possibly to negate the human right to privacy and self-determination of the transperson, which should be at the heart of our legislation.

Although, the amendment received wide support from Senators, Minister Humpreys did not accept the rationales but thanked Senator Zappone for the tabling the amendment. 

Minister's response: 

I do not propose to accept these amendments. Providing a new birth certificate is a significant and serious step. The purpose of this legislation is to recognise and validate people in their new gender. I accept that for most people, transitioning to their preferred gender, there is absolutely no doubt about their choice to live the rest of their life in their preferred gender.

  The support statement would not require any information about the person's medical history or care pathway. That was emphasised by the Tánaiste and Minister for Social Protection, Deputy Joan Burton, when she was in this Chamber. The Department of Social Protection will use a standardised form for completion by the primary treatment physician, asking him or her to confirm that the person is transitioning or has transitioned and fully understands that the person will live in his or her preferred gender for the rest of his or her life.

  Senators Norris and Moloney wish to remove the phrase "medical evaluation of the applicant". Concerns have been raised about this phrase in the Bill. I do not want there to be any confusion or misunderstanding about the validation process and the statement by the primary treating physician. I have been clear that the supporting statement will not require any information about the person's medical history or care pathway. I have discussed this with the Tánaiste who wants to ensure there will be no confusion on this point. She has raised it with her colleagues in Cabinet today. I am happy to say the Government will be tabling amendments on Report Stage along the lines put forward by Senator Moloney and others. My officials will be working with Parliamentary Counsel immediately to delete the phrase from section 9(1)(g)(ii). 

As a consequence, amendments will be required on Report Stage. Several other consequential amendments will also be examined and I will revert to the House on Report Stage.

  The change in the definition of primary treating physician is a significant and serious step by the State and for the persons concerned. The purpose of this legislation is to recognise and validate people in their new gender. I accept that for most transgender people there is absolutely no doubt about their preference to live their lives in their preferred gender.

  I thank the Senator for her amendment, which is helpful. Senators Norris, Zappone and others have raised this issue with me privately and I hope that when we have drafted an amendment for Report Stage, they will be satisfied that it addresses the points they have raised. I expect that we will not meet all of their demands fully. 

Senator David Norris:   We are making progress.

Deputy Kevin Humphreys:   I would like to think it is. I listened carefully to the debate and that is where this willingness to move has come from. The Tánaiste has also proposed it. I hope that is acceptable to Senators.

Senator Zappone again moved amendment No. 35:

  In page 29, after line 28, to insert the following:

“Use of public bathroom facilities

38. (1) Without prejudice to the generality of section 17 or to the provisions of the Equal Status Acts 2000 to 2011, where public bathroom facilities are assigned based on gender, a person to whom this section applies may use the public bathroom facilities allocated to the gender that is the same as his or her preferred gender.
(2) In this section —
“public bathroom facilities” means a toilet, bathroom or similar facility that is made available for use by members of the public, or that is located in a place that is open to the public, whether for a fee or otherwise;

“a person to whom this section applies” means a person whose preferred gender is different from the gender assigned to the person at birth, whether or not the person is a person to whom a gender recognition certificate has been issued.”.

Senator Zappone's remarks: 

This amendment relates to the use of public bathroom facilities. I decided it was important to include this provision following conversations with advocacy groups, including TENI, because the issue of the use of public bathroom facilities often arose in the context of discussions with members of the trans community. The Bill is based on the principles of enabling the rights of the trans people to be recognised and on providing adequate protection for them in that regard. They have not had that kind of protection previously, particularly in circumstances where there could be significant harassment. In the context of public bathroom facilities, they have found there could be harassment and even violence because of wanting to use a bathroom assigned to their preferred gender identity.

  The amendment uses the term "Without prejudice to" and makes a general statement in terms of the effect of the gender recognition certificate, but without prejudice to that. We consider it is important to include an amendment that specifies and clarifies that transgender people can use public bathroom facilities allocated to the gender that is the same as their preferred gender. This applies to facilities in theatres, restaurants, pubs, conference centres, schools and even Leinster House. It is important to include this amendment to help clarify they are entitled to use those facilities that are appropriate to their preferred gender, whether they are recognised under the Act or not.

  Throughout debate on this, we have been made aware and now know that there will be trans people who are not recognised under the Act, some between the ages of 16 and 18, all under the ages of 16, and some who are married who will not divorce their family in order to get the gender recognition certificate. Therefore, a number of trans people will not come under the Act, if enacted in its current form. This amendment relates particularly to them, but also to all transgender people. It is important this amendment is included in order to clarify that these people have this protection. The amendment strives to facilitate the safety of trans people in public facilities and to combat the negative stereotyping of trans people, particularly young trans people.

Minister Humphrey's respond: 

I thank the Senators. The amendments proposed are beyond the scope of the Bill, which is primarily to recognise the change of gender and the provision of gender recognition certificates. I can see why some of the specific grounds of discrimination would make it a strong message but it is not within my remit. Many of the points raised fall under the remit of the Minister for Justice and Equality.

  With regard to discrimination in the use of school facilities, I understand why the Senator has raised the issue. There is a real need for transgender children in schools to be protected and respected. The Tánaiste has met parents of transgender children and I discussed the matter with the Minister for Education and Skills, Deputy Jan O'Sullivan. Last week, the Minister launched an anti-bullying policy in primary schools. She is about to launch further information on that.

  Incitement to hatred is going far outside the remit of the Bill. With regard to Senator Power's comment about schools, there is a role for the Minister for Education and Skills, who must take up the issues and deal with them. I will take it up further with her. I talked to her briefly about some of the issues raised by the amendments. There is a real need for guidance to ensure transgender children are treated with the respect they deserve. Many of the amendments tabled by Senator Craughwell do not fall within the remit of the Bill but we can take that up with the Department of Justice and Equality.

Senator Gerard P. Craughwell:   Given my rather short experience of Bills passing this House, it would be great if the Minister of State can have a word with the Minister for Justice and Equality about the 1998 and 2000 Acts and the Prohibition of Incitement to Hatred Act and she can bring forward these issues. I appreciate they fall outside the scope of the Bill before the House but apparently the Minister of State has understood their importance.

Senator Katherine Zappone:   With respect, does the Minister of State have a comment on amendment No. 35? I do not see how it falls outside the remit of the Bill.

Senator Averil Power:   I understand what the Minister of State is saying about introducing separate amendments to different Bills covering incitement to hatred legislation, education legislation and others. The unfortunate point then is that we will have to wait for separate Bills to come through. There is no reason it cannot be done here. Is the Minister of State saying that this cannot be included for legal reasons or is it a political decision? My understanding is that it is a political decision. The provisions are not so wildly different to the purpose of the Bill that they could not be included. We frequently have Government Bills where the primary purpose is to do one thing but the Bill also includes amendments to other legislation to address broader issues in the area. That is the case here and it would be a shame to await separate items of justice and education legislation. This may or may not happen in the rest of the term of the Seanad, one year or 14 months. There is an opportunity to include them in this Bill.

Deputy Kevin Humphreys:   The use of bathrooms falls under the area of discrimination so it is not within the remit of this Bill. With regard to Senator Zappone's point, I am certain the Minister for Justice and Equality, Deputy Frances Fitzgerald, will facilitate a meeting because Senator Craughwell has thought out the proposals.

  We have not considered taking other elements in this Bill. We are keeping it to gender registration.

Senator Averil Power:   Is that a political decision or legislative constraint?

Deputy Kevin Humphreys:   It moves into education legislation. I will have to consider it and consult with the Department of Education and Skills. The Minister is very active in that area and will launch a number of initiatives. She will deal with this in this speedy manner. I do not propose to accept the amendments.

Senator Katherine Zappone:   I thank the Minister of State for his response. The Equal Status Act has been referenced. Does that mean the State will not protect transgender people to use the public bathroom facilities of their preferred gender?

Deputy Kevin Humphreys:   The equality legislation already covers transgender matters. The Senator is talking about the specific use of bathrooms. We must examine the equality legislation and my understanding is that it already covers the area.

  Amendment, by leave, withdrawn.

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