Diagnosis for Human Rights?

Human Rights in Ireland is pleased to welcome this guest post from Ben Power. Ben is the Board and Company Secretary for Transgender Equality Network Ireland. For more information on TENI’s work see www.teni.ie

Transgender Equality Network Ireland (TENI) is Ireland’s national trans organisation. We seek to improve conditions and advance the human rights and equality of trans people and their families. We are dedicated to ending transphobia, including stigma, discrimination and inequality. As part of this, one of the most important campaigns we are currently working on is the introduction of fully inclusive Gender Recognition Legislation. This provides a process enabling trans people to achieve full legal recognition of their preferred gender and allows for the acquisition of a new birth certificate that reflects this change. The introduction of legislation will make it easier for trans people in Ireland to lead safe, healthy and integrated lives.  Legislation has been proposed, however, much of it is restrictive and would infringe on the rights and privacy of trans people. In October 2012, a blog carnival to mark the 5th anniversary of Dr Foy’s victory  in the High Court was used to highlight the issues with the proposed legislation. Read it here.

So why does Gender Recognition Matter so much? What makes it so important?

There are many situations in an individual’s life where they are required to present a birth certificate in order to obtain their legal entitlements. For a transgender person this poses some complications. When the name and gender on your birth certificate is vastly different from the name you currently use and how you present your gender, questions will always be asked and this invariably leads to an awkward explanation forcing the trans person to “out” themselves, sometimes while a queue of people waits behind them.

How would you feel if, on applying for a passport, marriage/civil partnership licence or college place, you were asked to submit medical evidence that you have been diagnosed with a psychiatric disorder? I imagine reactions of outrage, incredulity and in some cases mirth as the request is assumed to be a joke. Yet, for a portion of the population on this island this is far from funny. This is the reality of our lives.

The Gender Recognition Advisory Group (GRAG) that was set up to provide recommendations on which to base relevant legislation. This report was published in July 2012 amidst disappointment and outrage from the people who will need to access the legislation. Particularly problematic in the GRAG proposals are the requirement for an applicant to be single and the requirement for them to have a diagnosis of Gender Identity Disorder – a diagnosis which, it was announced at the beginning of December 2012, will no longer exist as of May 2013! This is because Gender Identity Disorder is being renamed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders in favour of the less stigmatising term Gender Dysphoria. There are also changes being made to the criteria for diagnosis in a move towards a less pathologising definition.

However, the idea that a person should have to provide medical evidence at all in order to access what is a basic legal right is outdated. Across the world there has been a move away from diagnosis or medical treatment as a pre-requisite to recognition in favour of the model of self-determination as championed by the Yogyakarta Principles, the Council of Europe Committee of Ministers and in the 2011 report by the then Council of Europe Commissioner for Human Rights, Thomas Hammarberg. Most recently, the current Council of Europe Commissioner for Human Rights, Nils Muiznieks stated in a letter to Minister for Social Protection Joan Burton that

It is my position that legal recognition of the preferred gender should not require infertility or compulsory medical treatment which may seriously impair the autonomy, health or well-being of the individuals concerned. Any requirement of a medical diagnosis should be reviewed with a view to eliminating obstacles to the effective enjoyment by transgender persons of their human rights, including the right to self-determination.

On 8th May 2012, Argentina signed into law a Gender Recognition Act that has been widely hailed as the most progressive legislation of its kind worldwide. Trans people in Argentina need only follow a simple administrative procedure quite similar to the procedure we use in Ireland for changing a name by deed poll to gain legal recognition. This means that any person with any kind of trans identity or intersex experience is able to access the legislation. This would not be the case in Ireland if legislation is drafted based on the current proposals.

The Argentinian legislation specifically states that “In no case will it be needed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment has taken place”. However, in a hugely progressive move, it also manages to provide for access to healthcare for those trans people who require it. Article 11 of the Act, under the Right to free personal development requires that gender related hormonal and surgical procedures be covered under all public and private health insurance plans.

Ireland must now seize this unique opportunity to learn from the Argentinian legislation. It is time to introduce a Gender Recognition Act that will become a model of Best Practice that all of Europe and indeed the world can aspire to.

Those of us in the Irish trans community wait on in hope.

Diagnosis for Human Rights?

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