Transgender legislation pledged

by CAROL COULTER, Legal Affairs Editor

Minister for Social Protection Joan Burton will publish legislation in the next year to provide for recognition of the acquired gender of transgender people.

Ms Burton announced her plan when she published the report of an inter-departmental Gender Recognition Advisory Group, established in May 2010 to advise the Government on the implications of a High Court ruling that the failure to provide such recognition contravened the European Convention on Human Rights.

Transgender people are those suffering from a condition called Gender Identity Disorder, where their psychological identify is different from that suggested by their physical characteristics. According to the report of the inter-departmental group, there are an estimated 300 people with the condition in Ireland, of whom the majority are males wishing to transition to females.

The High Court case was taken by Dr Lydia Foy, and was the culmination of a 14-year battle on her behalf to secure official recognition as a woman, despite having being born with male physical characteristics, and having lived her early life as a man.

Her first case, seeking a new birth certificate, failed in the High Court. Within days of that decision the European Court of Human Rights that a similar situation in the UK contravened the Human Rights Convention. She then sought a High Court declaration that that absence of legal recognition for transgender people in Ireland contravened the Convention. In the first such declaration under the Human Rights Act Mr Justice McKechnie ruled in her favour in 2007 and the Government set up the inter-departmental committee, chaired Oliver Ryan, retired assistant secretary in the Department of Social Protection.

Its main recommendations are that an independent three-member Gender Recognition Panel, made up of a medical and a legal specialist, and chaired by an independent person from outside these disciplines, would be set up to examine applications from people seeking recognition of their acquired gender.

If people met certain criteria they would be issued with a Gender Recognition Certificate which would have the effect of legally recognising their acquired gender. They would be entitled to a new birth certificate in their acquired gender, though the original birth certificate would remain on file. They would be entitled to marry a person of the opposite sex to their acquired gender or enter into a civil partnership with a person of the same gender.

In order to qualify they would have to meet a number of conditions, including that they had lived in their acquired gender for at least two years; that they had provided either a formal medical diagnosis of their condition or had had gender reassignment surgery; that they were over 18 and that were not in a subsisting marriage or civil partnership.

There was some criticism of the decision to require a married transgender person to divorce in order to qualify for official recognition, but Ms Burton said it would be unconstitutional otherwise, as it would be open to challenge for permitting same-sex marriage.

FLAC, which represented Dr Foy in her court battle for legal recognition in her female gender, said the committee’s report and the promise to change the law were a significant milestone in the long struggle for legal recognition and inclusion of transgender persons in Irish society.

“While we have concerns about some of the report’s recommendations, we welcome it as an official acknowledgement and acceptance of the transgender community and a recognition of their right to dignity and respect”, said FLAC.

However, it said FLAC was concerned about the proposal that person already married would have to divorce to secure recognition, a point echoed by the ICCL.

“It will force applicants to make an impossible choice between their life partner and recognition in their preferred gender,”  said ICCL deputy director Tanya Ward.

Broden Giambrone of the Transgender Equality Network Ireland welcomed the report, but was critical of the restrictive nature of the proposed criteria for recognition.

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Free Legal Advice Centres, The Irish Council for Civil Liberties and Transgender Equality Network Ireland are Atlantic grantees.