Government finally publishes Draft Heads of Gender Recognition Bill

Nearly six years after Ireland was declared in breach of the European Convention on Human Rights, the State has finally released a draft Heads of Bill to provide a pathway to legally recognise transgender people.

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“We’ve seen legislative progress today, which is a positive step forward,” said TENI Director Broden Giambrone. “We welcome the publication of the draft Heads of Bill and look forward to working towards inclusive, rights-based legislation for Ireland.”

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The Government’s initial recommendations for legislation were published more than two years ago, on Thursday 14 July 2011. In the interim, two European Commissioners for Human Rights have voiced concerns about the delay in legislation.

“There are three elements of the draft legislation that are cause for grave concern,” said Giambrone, “the age barrier, the requirement to have a doctor’s supporting statement, and the requirement to be single. We work with families whose hearts will break reading these draft Heads of Bill.”

Age Barrier

The proposed scheme will only be open to people at least 18 years of age. “This excludes the intersex-affected children who may need to avail of the rights contained within Recognition,” continued Giambrone. “In Ireland, a young child has been unable to access pre-school because there was no pathway for their documentation to be corrected. Some trans children are today being home-schooled because they face such oppressive bullying at school – by students and staff.

“This is about the fundamentals of a child’s life: health, play and education,” said Giambrone. “Without Recognition, a child may be excluded from taking part in sports or leisure activities. Many young people miss out on their college places because the CAO system is unable to cope with trans identities. Everyone has a right to education, irrespective of their gender identity.”

Supporting Statement by Primary Treating Physician

“We welcome the omission of the requirement to have a formal diagnosis of a mental illness,” said Giambrone. “However, having to have a supporting statement from a physician seems like diagnosis by any other name. The Department for Social Protection has received letters from the world experts in transgender health stating that healthcare professionals should not be involved in the process of legal recognition. We are disappointed that this remains within the draft Heads of Bill – against the recommendations of the HSE.”

On 4 July 2013, in a briefing to the Joint Oireachtas Committee on Health and Children, Dr Philip Crowley, HSE National Director of Quality & Patient Safety, voiced his support of a non-medicalised approach. “The HSE endorses a gender recognition process which places the responsibility for self declaration on the applicant rather than on the details of a medical certificate/diagnosis. In doing so the emphasis is placed on the process of legal recognition of that self declaration as opposed to the legal recognition of the medical certificate and/or diagnosis. The HSE considers this process to be simpler, fairer, pragmatic and may be easier to legislate for as it takes account of both transgender and intersex people with differing backgrounds and contexts.”

“This medical requirement seems to exclude intersex-affected people,” said Giambrone “as the physician needs to confirm that someone is transitioning to an acquired gender. If this is indeed the case and intersex-affected people cannot avail of the rights within Recognition, it’s a missed opportunity.”

Divorce Requirement

The requirement to be single has been the most controversial of the conditions, and has drawn comment from the International Secretariat of Amnesty International and the European Commissioner for Human Rights.

On 2 July 2013, the International Secretariat of Amnesty International wrote to Minister Burton calling for legislation to be introduced without further delay, urging that it be introduced without requirements relating to marital status.

In a letter to Minister Burton dated 16 November 2012, Council of Europe Human Rights Commissioner Nils Muižnieks warned against including any requirement to be single, saying “divorce should not be a necessary condition for gender recognition as it can have a disproportionate effect on the right to family life”.

“Why should anyone be forced to choose between family and basic human rights?” asked Victoria Mullen, a married transgender woman with children. “I believe that the requirement to divorce is itself unconstitutional as the State fails to meet its own obligations by making such a demand of a citizen. Indeed, divorce may not even be possible in our circumstances as we may be unable to satisfy the courts that there has been an irreconcilable breakdown of our marriages, a key requirement under Irish Law for a divorce.”

“What about the constitutional protection for Victoria’s family?” asked Giambrone. “It is vital that the legislation that is introduced is firmly grounded on human rights principles, and cherishes all families equally.”

Next Steps

The draft Heads of Bill was published at a press conference to which no trans organisations or representatives were invited. “Frankly, we were shocked that today’s launch did not seek to involve or include members of the trans community,” said Giambrone.

The Bill will now go to the Committee for Education and Social Protection for review. TENI will publish a forensic analysis of the draft Heads of Bill and will hold a Community Forum within the next month to discuss next steps for advocacy.

“What Minister Burton presented today is a starting point,” concluded Giambrone. “We need to ensure that the legislation that the State enacts is inclusive and marriage-friendly. The alternative is that the moment that Dr Lydia Foy’s case is finally resolved, other cases will be taken by families seeking to defend their marriages and to protect the wellbeing of their children.”

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