On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism – statutory, administrative or judicial – for amending their birth certificate and obtaining state acknowledgment of their preferred gender. More than 20 years after Dr Lydia Foy first requested recognition, 13 years after the European Court of Human Rights declared that recognition was a Convention Right and eight years after the Irish High Court found the State in violation of its international obligations, the Irish Parliament has finally created a legal structure which will acknowledge the existence and dignity of trans persons.
The Gender Recognition Act 2015 has travelled a long way to reach its current format and structure (and, as discussed below, there is still significant progress to be made). When the Gender Recognition Advisory Group – a consultative panel established to advise the Government on legislating for recognition – announced its recommendations, the proposed legislation still retained references to surgical interventions, lived-experience, “gender identity disorder” and gender panels. Delivered in 2011, by an advisory body with no trans members, the “GRAG” report appeared at a time when advocates were increasingly applying human rights standards to legal gender recognition. Its highly medicalised recommendations were not only out of step with international best practice, but also failed to engage, in any meaningful way, with the lived-experience of Ireland’s trans community. Amendments, additions and omissions have characterised the legislative process in the intervening years. Surgery and diagnosis were removed, but medical supervision – in the form of a controversial “physicians statement requirement” – remained frustratingly present until earlier this year. The particular situations of married couples and young people have been a source of intense debate. To differing extents, these issues remain unresolved, as do concerns relating to non-binary recognition, intersex persons, gender-specific crimes and the status of trans parents.
Due credit in passing the Gender Recognition Act 2015 must be offered to the two Government ministers, Tanaiste Joan Burton and Kevin Humphreys, who have had responsibility for legal gender recognition since assuming office. In the space of four years, they have achieved what successive Irish Governments failed to do: acknowledge that Ireland’s trans community exists. Both ministers have also come a long way in their own personal understandings of trans issues, and received a warm welcome at Trans Pride in Dublin earlier in the summer. However, the Gender Recognition Act 2015 is, in truth, a testament to the incredible work of Ireland’s vibrant, engaged trans community and their allies (TDs, political groupings, NGO-based groups, and members of the public). Committed, dedicated and strategic advocacy over the past four years has managed to transform GRAG’s recommendations into the progressive legislation enacted on 15 July. While often subject to lurid, highly offensive commentary, the Irish trans community has retained a focused, dignified drive in working to achieve recognition of its membership. This drive has been epitomised by the legal fights waged by Dr Foy. Her courage and resilience has inspired advocates for reform, and rightly won her the European Citizen’s Prize 2015.
As noted, from a comparative prospective, the Gender Recognition Act 2015 is highly progressive. Transgender Equality Network Ireland (TENI) observes that Ireland is only the fourth country in the world (after Argentina, Denmark and Malta) to pass legislation which allows trans persons to obtain recognition on the basis of “self-determination.” Once the new legislation comes into force, trans people will be able to apply for legal recognition based solely on their “settled and solemn intention of living in the preferred gender for the rest” of their lives. Instead of having to show that they have undergone surgery, sterilisation, have a diagnosis or are supported by doctors, applicants for recognition need only confirm that they understand “the consequences of the application” and are seeking state acknowledgement of their own “free will.”
The movement away from the physician’s statement model – announced by the Government after the marriage equality referendum – is extremely important both in practical and symbolic terms. From a practical point of view, it means that trans people, in order to obtain recognition, do not have to rely upon the notoriously difficult healthcare pathways in Ireland. Anecdotal evidence regarding access to gender confirmation treatments in Ireland means that, with a requirement to obtain support from a “primary medical practitioner”, applicants for recognition would likely have faced a waiting period of months, possibly years. In addition, as recognised in numerous EU-wide reports, a significant section of the trans community cannot access even basic healthcare services. Thus, medicalising legal gender recognition – even through medical supervision clauses – would have had the effect of removing enjoyment of recognition from a significant proportion of Ireland’s trans population. However, perhaps more fundamental, a self-determination model respects the autonomy and dignity of applicants for recognition. It acknowledges that trans persons should be the arbiters of their own identity. Living and experiencing their gender, applicants for recognition are best placed to identify their true self. They should not be subject to arbitrary or discriminatory medical assessments.
The scheme (not the current text) of the Gender Recognition Act 2015 is notable for its removal of forced divorce. Under the initial, pre-referendum proposals, trans persons were required to be single or divorced in order to obtain recognition. The stated aim was to avoid unconstitutional marriages. While many people have challenged this historical view of Ireland’s constitution, the Government’s actions were supported by legal advice and thus remained in place. However, following the marriage equality referendum, the forced divorce requirement is no longer an imperative and thus the aim was to remove those conditions completely. However, as the referendum is now subject to legal challenge, the forced divorce requirement has been initially retained. The Government has committed to removing the requirement as part of the enacting legislation for marriage equality. This move has huge significance. It means that trans persons, who remain in a marriage that they do not want to dissolve, are able to maintain and protect the integrity of their legal family.
Of course, the Gender Recognition Act 2014 is certainly not without critique. A major omission is young trans individuals. As noted previously (here and here), trans children and adolescents are not adequately provided for in the new legislation. People under 16 years are completely excluded. Their lives and identities are erased from Irish law. Individuals aged 16 and 17 years are nominally included. However, the legal process for seeking recognition is so onerous – two doctors, parental consent and a court order – that few, if any, applicants will obtain recognition before the age of majority. The negative consequences of excluding children from recognition – mental health concerns, denial of services, peer bullying and violence – are clear and well-known. Yet, so far, the Government has shown little willingness to move.
One light of hope is a promised review in two years time. This will be an opportunity to illustrate the need for increased recognition. It is unclear, however, what the Government believes that it will learn in 24 months time that it cannot already now discover. Numerous young people have spoken openly about their experiences in a legal environment which has no obligation to recognise their true identity. By 2017, an increasing number of States – Norway, Sweden etc – will have allowed children to access recognition. Yet, these countries have already announced their intention to do so and, in some cases, have already published the specific legislation to be enacted. Yesterday, the same day that the Government enshrined the second class status of trans children, the first Trans Youth Forum took place in Dublin. It was an incredible example of the vibrancy and resilience among trans youth in Ireland. Yet, the stories told also reinforced understandings about the real difficulties which trans young people face, and the links which exist between discrimination and the absence of recognition in this country.
The Gender Recognition Act 2015 also fails intersex persons and individuals who do not fall within traditional gender binaries. Although the legislation is intended to cover intersex people (and hopefully will be interpreted as such) the lack of express reference to intersex and the specific mechanisms of the Act may place legal acknowledgement out of reach for many intersex applicants. In addition, an increasing number of Ireland’s trans community identify outside male or female legal classifications. The current recognition model offers no solution or recognition to the problems which these persons encounter. Other jurisdictions have looked at providing third gender options for non-binary persons on identity documents, such as passports. While a third gender or “X” gender option will not address the needs of all non-binary persons, it would be a first, good faith effort on behalf of the Irish state.
The passage of the Gender Recognition Act 2015 is a momentous event. It is another step towards promoting the equality, dignity and full citizenship of all persons. The legislation is certainly not perfect and, in many aspects, remains deeply flawed. However, the movements towards self-determination and away from forced divorce will significantly ease the application process for countless individuals. Self-declaration is a powerful statement of the autonomy and dignity of trans persons. After a long struggle, this is a moment to savour. Moving forward, the fight for full and equal rights will continue.