Transgender legislation pledged

Posted on 15 July 2011


> – Last Updated: Thursday, July 14, 2011

Dr Lydia Foy took a High Court case seeking legal recognition of her female gender.
Photograph: Frank Miller/Irish Times

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.

Government of the people (but not for transgendered people)
July 15, 2011
Posted by Tomboktu in Gender Issues, Human Rights, Ireland, Social Policy trackback

The news reports in Friday’s papers, if any, on the launch on Thursday of the Report of the Gender Recognition Advisory Group will certainly contain the news that the law will be changed to allow transgendered people have their new gender legally recognised in Ireland. They might also contain information on concerns have been expressed by the Irish Council for Civil Liberties, by FLAC, and by the Equality Authority, particularly their concerns about the compulsory termination of a marriage or civil partnership that a trans person will be required to undergo if they are to have their change of gender legally recognised.

Those news reports might be accompanied on Friday or followed in days to come with ‘analysis’ pieces — Saturday’s supplement editors might welcome the weighty wordage — in which a paper’s legal correspondent or an academic lawyer explains why there are constitutional difficulties or sets out how the proposals are, as the chairman of the Advisory Group pointed out, in line with the majority of provisions in other European countries. The Report even helpfully provides the thinking journalists with a table (page 22) setting out the contents of “schemes” in 13 other EU countries such as requiring ‘genital surgery leading to sterilisation’, ‘hormonal treatment’, or ‘medical opinion’.

You are far less likely, I predict, to see any report or analysis of the deep lack of any common understanding between the rulers and those they rule over that was publicly demonstrated at the launch of the Report in Dublin on Thursday morning. This was plain through the hurt and restrained anger expressed by the trans people at the launch and comments by some civil servants that the trans people didn’t really understand. In the half hour or so before the Minister arrived, trans activists were speed-reading the report and drawing each other’s attention to yet another piece of text in the 65 pages that offended. They, unlike the top table, had only that snatched half hour before the Minister arrived to study and think about the report and formulate answers for the journalists present. While they may not have had the time to examine all of the minutiae of the report, they did have the best expertise that you could ever need when judging it: their real lives as trans people.

The two main problems the trans people raised were the requirement to get divorced (or terminate a civil partnership for a same-sex couple) and the medical model adopted by the Advisory Group. The way in which the two groups — the representatives of the State at the top table and the trans people whom they are effectively governing — dealt with their different understandings of these two issues in the questions after the Minister’s speech tells us more about our rulers than they intended.

The first question from the floor challenged the divorce requirement. The top table explained the constitutional constraints that apply (same sex marriage is not legal in Ireland). With a single rejoinder from the floor, and a hint from Joan Burton that she hoped the Zappone–Gilligan Supreme Court case or a referendum could change that situation, the trans people recognised that they did not have the legal expertise and moved on. The top table, however, did not repay in kind when their lack of expertise was exposed with the question on the medical model they had adopted.

The medical aspect is the requirement that one of three criteria be met before a change of gender recognition will be legally registered (pages 48 and 49 of the report):

  • a formal diagnosis of GID [Gender Identity Disorder] by one or more qualified mental health professionals, plus confirmation that the applicant is not suffering from any debarring mental health condition, plus supporting relevant medical evidence such as details of treatments undergone or in progress (hormone therapy, minor surgery or treatments to change facial appearance, gender reassignment surgery, etc), if available,


  • a formal statement by a qualified medical practitioner that, based on a physical examination, the applicant has undergone gender reassignment surgery in the past,or
  • evidence of having had the gender change recognised in a foreign jurisdiction.


The debate centred on the first two of these, which constitute one of the key elements of the proposed Irish model of recognising changes of gender. The question asked why a medical intervention is needed. The response drew attention to the word “or” between the first two bullet points. This ‘or’, both Minister Burton and Oliver Ryan (the retired senior civil servant who chaired the Advisory Group) said, meant that gender reassignment was not a requirement. Notice what they did: ‘medical intervention’ was identified as ‘gender reassignment surgery’, and they claimed medical intervention is not a requirement because the first option, before the ‘or’, does not require that. I think Minister Burton and Assistant Secretary General Ryan should be required to undergo one of “hormone therapy, minor surgery or treatments to change facial appearance” — I’ll be generous and let them choose which one — and then tell us if they still think those are not medical interventions. Actually, feck that. “[A] formal diagnosis of GID by one or more qualified mental health professionals” is itself a medical intervention.

The second aspect of the medical intervention is the procedure that is proposed. A panel of three, consisting of a lawyer, a doctor and a third person not of either of those professions, will be established to decide if a person is entitled to have a change of gender legally recognised. The proposal for the role of this trio is (with emphasis added by me):

  • The decision-making body examines the application and the evidence and makes a decision to either accept or reject the application.
  • The decision-making body issues a Gender Recognition Certificate to the successful applicant recognising the new gender

In fact, the Report is littered with references to “successful” and “unsuccessful”, prompting one of the trans people to ask me after the the proceedings ended what the Advisory Group thought they were at. The idea that three strangers — or a Circuit Court Judge in an appeal — would be given the power to tell an adult resident or citizen, “no, actually, you are not a successful man, and we know better than you” is just offensive.

The response of the Advisory Group’s chairman, Oliver Ryan, to the critique on that point when it was raised during the proceedings was to say that the group had taken account of the best expert advice available to it and had looked at what is done in most other countries. And it is the lack of any answer to the rejoinder to his reply that shows just how big the gap between the rulers and those they govern is. Ireland, explained one of the trans people, has been so far behind in recognising the rights of trans people, that it has a wonderful opportunity to adopt best practice. Although that speaker did not say it at the publication event, the report actually quotes (on pages 62 & 63) some of a Council of Europe report on the best human rights standards in this area; it also cites the cutting edge global standard (albeit of a distinguished group of human rights experts — that included Mary Robinson — rather than an legal instrument), the Yogyakarta Principles, and a 2010 recommendation by the Council of Europe’s Committee of Ministers. Instead of adopting best practice, the Advisory Group adopted majority practice. And their justification is that experts had told this is how it should be done.

A good piece of journalism in the coming days or months (the publication of the Heads of a Bill and the Oireachtas debates will provide the media with opportunities to return to the issue) could deal with the merits or other wise of the technical issues — should doctors have a role, should a person be allowed to assert for themselves that they are a man or a woman and not have a panel deciding it for them, and is there some way of allowing a trans person to remain married and recognise their change of gender in our current legal system?

An outstanding piece of journalism will examine the deeper question of how the discussion has come to focus on those technical questions. It will report some other facts about the report and what what it tells us. One of those might be the list of the organisations who made submissions (individuals who made submissions are not listed):

  • BeLonG To Youth Service.
  • Free Legal Advice Centres.
  • Gay and Lesbian Equality Network.
  • Gender Identity Disorder Ireland.
  • Irish Council of Civil Liberties.
  • Irish Human Rights Commission.
  • Lash Back Collective.
  • LGBT Noise.
  • LGBT Society University College Cork.
  • Marriage Equality.
  • Ombudsman for Children’s Office.
  • The Equality Authority.
  • Transgender Equality Network Ireland.
  • Union of Students in Ireland.

The only one of those I don’t recognise is the Lash Back Collective (but I doubt that with a name like that they are a front for the Iona Institute). What is telling is not the contents of the list but the absences from it. No Royal College of Psychiatrists in Ireland, no Royal College of Surgeons or Irish Endocrine Society; not mentioned is the Law Society or Kings Inns, one of whose members are to sit in judgement on trans people. So, organisations of trans people and organisations that support them (such as GLEN or the statutory human rights bodies) are to be named, to be identified as those who have an interest, an opinion, but the experts who advised the Advisory Group are not seen as having an interest, are seen as above the fray?

And what of the membership of the Advisory Group?

  • Oliver Ryan, formerly from the Department of Social Protection, Chair of the Group.
  • Kieran Feely, Registrar General.
  • Christine O’Rourke / Nicola Lowe, Office of the Attorney General.
  • John Kenny, Department of Justice, Equality and Law Reform.
  • Anne Coleman-Dunne, Department of Enterprise, Trade and Innovation.
  • Geraldine Luddy, Department of Health and Children.
  • Helen Faughnan, Department of Social Protection.
  • Caitriona O’Brien, Department of Education and Skills.
  • Deirdre Ní Neill, Department of Community, Equality and Gaeltacht Affairs.
  • Deirdre Fannin, Department of Foreign Affairs and Trade.
  • Garrett Cunnane, Legal Advisor, Department of Social Protection.

Civil servants, 100%. No member with the lived experience of being an trans person. No person noted for their study of the situation and experience of trans people. One job share from the Attorney General’s office might just have relevant expertise on the Irish legal possibilities, but everybody else is a bureaucrat who design and run administrative systems. And that expertise has been applied, in triplicate, to the model they have proposed.

Report on that, you journalists.

Thanks to mopti