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Column: We could put Ireland at the forefront of trans recognition, so why don't we?

Ireland currently has the dubious distinction of being one of the only EU states without any legal recognition process for trans people.

Emma Cassidy

WHEN I SAT down to type out this column on trans rights, I realised that much of the work had already been done for me. The latest video produced by Transgender Equality Network Ireland (TENI) relays the lived reality of Irish trans people in their own words. The clue is in the title – Gender Recognition Matters.

I urge anyone who hasn’t already seen it to click the link and give it 6 minutes of your time. Go on, stick the kettle on and watch. Because it sums up quite beautifully the perpetual state of vagueness that Ireland’s trans community currently reside in – a brutal combination of monotony (at having to constantly explain themselves) and the chipping away of self-esteem (due to not being recognised by the State).

The campaign for transgender recognition in Ireland, of which Dr Lydia Foy was the effervescent catalyst, began in earnest 22 years ago when Lydia was refused a birth certificate in her true gender. Many accounts have been written of the Foy case history by people far more articulate than I, so I won’t repeat it here. (For example, FLAC’s Michael Farrell, Lydia’s solicitor, has put together a very comprehensive briefing note for all those interested!). We now have draft legislation, in the form of the Gender Recognition Bill 2014.

Four main areas of concern

However, it is not time to celebrate and clap each other on the back just yet. There are still several flaws in the proposed bill; problems that have been pointed out several times over the years by many different activists and human rights organisations. The recent Civic Forum hosted by Senator Katherine Zappone identified the four main areas of greatest concern: age criteria which ignore trans young people; forced divorce; the implications of the proposed medical evaluations; and the exclusion of non-binary identities.

Now I know we like nothing more in Ireland than a good old moan but this article is not just complaining for the sake of it. For the last few months, I have been lucky enough to be based in Brussels with ILGA-Europe – the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association. Now immersed in a sea of Euro-wide information, I can see that Ireland has a ridiculously exciting opportunity to enact a forward-thinking piece of legislation, one really tailored to the needs of those who require it.

In discussions of progressive trans law, Argentina is a frequently cited example. In 2012, it passed what is often referred to as the world’s leading gender identity law that removes the need for mental/medical diagnoses from the gender recognition process. Self-determination is the key here. However, what ILGA-Europe has shown me is that there is also a wealth of inspiration much closer to home.

June 2014 heralded the passage of Denmark’s updated legal gender recognition law. It removed the need to be diagnosed with Gender Identity Disorder before legal recognition is possible, making it the first European country to do away with the clinical diagnosis requirement. Compulsory sterilisation and surgical intervention were also removed from the process. Now the law mirrors that of Argentina; a trans person in Denmark simply needs to notify the relevant authorities of their wish to change their gender markers on official documents. No more stigma of mental illness and no more intrusive procedures.

Ireland’s legislation thankfully does not propose sterilisation but it does include a ‘medical evaluation’.  Many trans people do not want, or simply do not have the means, to pay for gender reassignment medical treatment, they just want to be accurately recognised in the eyes of the law. This provision muddies the distinction between medical transition and legal recognition.

Choosing between gender recognition and your family

Danish law already protected trans people who were married and did not require them to divorce before recognition was permitted. But this is the horrible scenario facing the small number of married/civilly partnered  trans people in Ireland who wish to remain so – choose between gender recognition and your family. As it stands, the Bill’s provisions only apply to single people. Given how protracted divorce is in Ireland, as recently pointed out in an Irish Times feature series, this is not something to be undertaken lightly. Stand up in court and perjure yourself, no big deal….

Malta also hit the headlines in 2014 as it became the first European country to recognise the fundamental importance of gender identity in its constitution. Admittedly, Malta did not have the best history when it came to trans rights (article here on p13) and had previously dragged its heels on the issue almost as much as Ireland. Now, gender identity is listed as a protected ground in Malta’s primary source of law and the consultation process on a gender recognition bill going even further than the Danish/Argentinian model was launched in October.

Such innovation is not beyond us. We in Ireland should be proud of the fact that two of our compatriots – Mary Robinson and Michael O’Flaherty – were on the international panel of experts who drafted the Yogyakarta Principles on sexual orientation and gender identity. We already have the unenviable distinction of being one of the only EU member states without any legal recognition process at all. Why not take this opportunity to put Ireland at the forefront of trans recognition, rather than enact a law with provisions that are already outmoded and questioned elsewhere?

A seminar in Dublin this week will feature input from a German Supreme Court judge and Irish activists, Michael Farrell of FLAC and TENI’s Broden Giambrone. This is an event that certainly will produce real food for thought. I just hope our legislators will be listening.

Emma Cassidy is communications and media officer with ILGA-Europe. ILGA-Europe works for equality and human rights for lesbian, gay, bisexual, trans & intersex (LGBTI) people at the European level.  For more information on their work, visit www.ilga-europe.org or follow @ILGAEurope on Twitter. 

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