THIS WEEK I published a Gender Recognition Bill in the Dáil. It is a simple piece of legislation but one that is absolutely necessary in order to uphold and vindicate the human rights of transgender people in this State. It would, if passed, provide a mechanism that would allow transgender people to receive new birth certs and be recognised in their preferred gender.
They won’t need surgery, or a diagnosis of a mental illness or disorder. This is a human rights issue and one that must be addressed as a matter of urgency.
Ireland is no stranger to the European Court of Human Rights, and certainly no stranger to losing cases in that venue. While this Government may portray the state as a bastion of human rights, there are many areas in which Ireland is an abysmal failure. One of these many areas the lack of provision for legal recognition for transgender persons’ preferred gender in this state.
Transgender people face awkward questions getting routine documents
Most people take for granted that their essential identification documents all have the same name; that applying for visas won’t be problematic; that there will be no awkward questions regarding names etc. But people in Ireland face all of this as they cannot change their birth certificates – it is a product of a State that refuses to recognise a person’s identity at its most basic level.
It is not too much to ask that people have documentation that accurately reflects their identity. We must accept people for who they are and it is not for another person, or the State for that matter, to dictate the identity of another.
The State let the decision by the European Court of Human Rights go unchallenged when the Strasbourg Court said in 2007 that not allowing transgender people legal recognition was a breach of human rights. This Government and the last Government subsequently promised to amend the law, but five years down the line, nothing has changed and recently, Minister for Social Protection Joan Burton announced that it would be another year at least before any Bill would be introduced.
Forced to take legal action
Dr Lydia Foy, a transgender woman, first sought in 1993 a new birth certificate that recognised her female gender and after years of trying began legal action in 1997 but she eventually lost her case in the High Court. Two days after this ruling was handed down, the European Court of Human Rights ruled that the UK had violated the rights of transgender women who had also been refused birth certificates based on the same legal framework that Ireland had. Lydia took her case to the European Courts of Human Rights.
The High Court granted a declaration in 2007 that Dr Foy had no remedy under Irish law and that Irish law was incompatible with the European Convention on Human Rights because it failed to provide recognition for transgender persons. The High Court declaration also expressed concern that the Government had failed to assist transgender persons since the European Court of Human Rights ruled against the UK in 2002.
It looked like there might be some movement during 2010 when the Government established a Gender Recognition Advisory Group whose role was to advise the Minister on mechanisms to provide legal recognition for transgender people. Sadly, this group didn’t include any transgender persons and was assembled from a collection of representatives from various government departments who reported in 2011.
Documenting people with a psychiatric condition
For many the report they issued was a massive disappointment, and while they didn’t call for gender reassignment surgery as pre-requisite for having your preferred gender recognised, they did ask that a person be diagnosed with a psychiatric condition of “Gender Identity Disorder” instead. The notion that someone should have to be officially documented as mentally ill or disordered when they are not in order to access a human right, is as bizarre as it is offensive.
The GRAG report also proposed that married trans people should have to divorce before they can have their preferred gender legally recognised so the State could avoid the possibility of inadvertent recognition of same-sex marriages. So much for the protection of marriage in Ireland!
Anyone who has gone through a divorce, or knows people who have will be able to tell you the difficulties that this poses; it takes a very long time and you have to show that your marriage has broken down with no prospect of being mended and have lived separate lives for over four years. Why should people have to leave the person they love in order to have their gender acknowledged by the State?
A breach of human rights
There is no need to be conservative on this issue, in fact to be anything less than progressive is a fundamental breach of human rights. Transgender people have suffered from ignorance and prejudice for far too long. Ireland is virtually alone in Europe, where almost every other state recognises that transgender people deserve to have their rights upheld.
It is twenty years since Lydia Foy first made an application for a birth certificate in her female gender and still she hasn’t received this. Yet, we are still expected to believe that this Government is committed to human rights? It is an insult to Ireland but the Gender Recognition Bill 2013 is an opportunity to change that.
Deputy Aengus Ó Snodaigh is the Sinn Féin spokesperson on Social Protection and is TD for Dublin South Central. He tweets at @aosnodaigh