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, Continue reading

Ni Mhuirthile on Depathologising Gender Identity

Dr Tanya Ní Mhuirthile is a Senior Lecturer at Griffith College Dublin, a board member of Transgender Equality Ireland and legal consultant to IntersexUK. Human Rights in Ireland would like to thank Tanya for organising this blog carnival today, and to all the contributors for their contributions, exactly five years on from the delivery of the Foy decision

The introduction of the Gender Recognition Act 2004 (UKGRA) in the UK was universally heralded as the most progressive step towards ensuring equality for trans people. According to Sandland it ‘intentionally or otherwise, interrupts the orthodoxies of gender that the law has peddled to a greater extent than any other development in recent times’. Trans activists commended the GRA for going further than the requirements laid down by the European Court of Human Rights, in that it will recognise a person’s preferred gender without insisting that the individual in question has undergone sexual reassignment surgery or indeed any other form of treatment.

The main reason for the almost universal acclaim for this Act is the apparent dispensing with the need for any medical or surgical intervention to ground a claim for recognition. Effectively, all that is required is a diagnosis of gender dysphoria. There is no mention of treatment, whether surgical or medical, as pre-requisite to recognition. Rather according to s3(3) any applicant who has undergone some form of treatment, where that is not mentioned in the required reports, is not eligible for recognition. This severing of recognition from necessary bodily modification ensures that those who, for whatever reason, are unable to undergo surgery will not be frustrated in their attempts to exercise this right to recognition.

This was a revolutionary legislative scheme. It was the first such scheme which did not require that a person have completed gender reassignment surgery including sterilisation prior to recognition. This was welcomed, as in reality gender reassignment surgery Continue reading

Families Against Forced Divorce

Families Against Forced Divorce: To protect the privacy of our children and our spouses, we feel we are unable to publicly put our names to this article.

In a country where divorce was illegal twenty years ago, is it about to be made compulsory for some?  Imagine being told that the State will not legally recognise your identity unless you first divorce your husband or wife.  This is not some nightmare scenario from the Nazi 1930s.  It’s all too real and about to be inflicted on transgender families in Ireland today.

Ireland remains the last of the 27 EU Nations which still does not allow Gender Recognition for transgender people. This lack of legal recognition of our true gender has many important implications for our lives.  First and foremost is the lack of being respected and protected in Irish law in our true gender which impacts on every corner of our lives.

Without such protection, difficulties can arise in our jobs, pensions, insurance, foreign travel and even our ability to engage in most sporting activities to the point that we simply cannot participate at all.  For example, to play ladies golf you must be recognised by the State as a woman.  Or, what do you think your chances of getting a job would be if you are “outed” as a transgender person in the process?  Only with full Gender Recognition can we hope to move on with our lives.

Marriages where one spouse is transgender are lucky to survive.  Let us look at one example: Sandra and Michelle.  Sandra suffered from Gender Identity Disorder and always felt female despite the fact that she had a functioning male body.

At the time Sandra married Michelle in 1990, she was endeavouring to be the “man” that society expected her to be.  Their marriage is fully valid Continue reading

Ryan on Gender Recognition and Marriage

Dr Fergus Ryan is a lecturer in law at the Dublin Institute of Technology.

When I first encountered Family Law as a discipline, the burning issue of the day was divorce.  Prior to 1995, divorce was constitutionally prohibited.  A prominent theme in the family law classes of the time was whether estranged married couples should be allowed to divorce and remarry.  It never crossed my mind that married couples might at some future point be required to divorce, against their collective wish to remain married.

When divorce was finally introduced it was nonetheless firmly considered a last resort, to be employed only when all else failed.  This is evidenced by the lengthy living apart requirement – four out of the previous five years – and the stipulation that a divorce will only be granted if there is no reasonable prospect of reconciliation. Divorce legislation requires, moreover, that, prior to commencing litigation, parties be advised of alternatives to divorce.

The Gender Recognition Advisory Group (GRAG), in its report to the Minister for Social Protection on gender recognition legislation, recommended that transgender applicants who meet certain conditions should be allowed to access a gender recognition certificate. This would allow the recipient to change their legally assigned gender for all legal purposes.

The Group, however, recommended that applicants should not, at the time of the application for a gender recognition certificate, be married or in a civil partnership. The Group’s stated concern was that a gender recognition certificate would convert an existing opposite-sex marriage into a same-sex marriage and a same-sex civil partnership into an opposite-sex one, neither of which is legally permitted.  As the law currently stands, marriage is confined to opposite-sex couples, and civil partnership to same-sex couples.

The implication is that trans people who are currently married or in a civil partnership will need to obtain a divorce, civil partnership dissolution or annulment as a precondition to legal gender recognition.  Admittedly, many marriages do not survive a gender transition, but some do.  This places such intact couples Continue reading

5th Anniversary of decision in Foy v An tArd Chlaraitheoir (No 2) [2007] IEHC 470

Human Rights in Ireland is pleased to host a blog carnival reflecting on the 5th anniversary of the decision in Foy (No 2). This blog carnival is organised by Dr Tanya Ní Mhuirthile. Tanya is a Senior Lecturer at Griffith College Dublin, is on the board of Transgender Equality Network Ireland and is a legal consultant to InterseXUK.

Five years ago today, Mr Justice McKechnie handed down his decision in Foy (No 2) in which he announced his intention to issue the first ever Declaration of Incompatibility under s5 of the European Convention on Human Rights Act 2003. The source of the incompatibility was the inability of Irish law to recognise the preferred gender identity of Dr Foy in contravention to the right to respect for one’s private life as contained in Article 8 ECHR.

Five years later, the incompatibility remains.

The Government has commissioned and published the report of the Gender Recognition Advisory Group (GRAG), and proposed legislation entitled the Gender Recognition Bill is on the ‘C’ list of the Legislative Programme for 2012 – meaning the heads of bill have yet to be approved by the Government. Nothing substantial has changed. As Mr Justice McKechnie noted in his judgment five years ago within a year of the decision in Goodwin v UK (2002) the House of Lords, issued a similar declaration of incompatibility under the Human Rights Act , 1998 in Bellinger v Bellinger [2003]. The following year the UK’s Gender Recognition Act 2004 had been passed. Thus Justice McKechnie noted: ‘Ireland, as of now, must be even further disconnected from Continue reading

Long Awaited Report of the Gender Recognition Advisory Group

We are delighted to welcome this guest post from Tanya Ni Mhuirthile; post-doctoral fellow at the Faculty of Law, University College Cork, and board member of the Transgender Equality Network Ireland.

On Thursday, the report of the Gender Recognition Advisory Group (GRAG) was finally published. The GRAG was established last year to advise the Government on the introduction of gender recognition legislation for Ireland. As was recently identified in the report of the Council of Europe Commissioner for Human Rights, Ireland is one of only three EU member states (in addition to Lithuania and Luxemburg) where there is no legal mechanism to recognise the preferred gender identity of individuals who wish to be recognised in a gender other than that recorded at birth. The report is to be welcomed in that it represents an engagement by the State with this issue at last. However, it is also a missed opportunity to learn from and improve on the experiences of other states on this issue.

Continue reading

Guest Post: Louise Hannon at the Equality Tribunal.

We are pleased to welcome this guest post from Tanya ni Mhuirthile of the Faculty of Law, UCC. Tanya is a member of the Board of Directors of the Transgender Equality Network Ireland.

The recent decision of the Equality Tribunal that discrimination on the basis of gender identity amounts to a breach of rights under the Employment Equality Acts is to be welcomed. It represents a huge step forward in terms of protection for those who have questioned their gender at birth.

Continue reading

Gender Recognition Case Update

It was confirmed yesterday that the Irish government has withdrawn its appeal to the Supreme Court against the High Court decision of McKechnie J in Foy v An t-Ard Chláraitheoir & Ors. In that case, the learned High Court judge held that the Irish state was in breach of the European Convention on Human Rights due to the absence in this jurisdiction of “any measures to honour the convention rights” of transgender citizens. This was based on the fact that under Irish law a citizen cannot have a birth certificate issued to them denoting a gender other than that declared at the time of birth. McKechnie J held that this situation constituted a breach of rights protected under Art 8 ECHR: the rights to private and family life.

The delcaration of incompatibility made under s 5 of the European Convention on Human Rights Act 2003 must be laid before the Dáil and the Seanad within 21 days of its issue. Obviously, given the appeal to the Supreme Court, this matter was delayed. However, the Irish Times reports that in anticipation of officially withdrawing that appeal, the government has established an interdepartmental committee on the legal recognition of transsexuals. This committee, the Gender Recognition Advisory Group, has been asked to provide the Heads of a Bill to address relevant matters including:

  • the creation of a process for legally recognising the acquired gender of persons suffering from gender identity disorder who have made the transition from one gender to the other;
  • the creation of a gender recognition register for such persons from which a document indistinguishable from a birth certificate can be issued;
  • and, the establishment of an entitlement for transgendered persons to marry in their legally recognised acquired gender.

The Group will report on these matters to the Minister for Social Protection and it is hoped that Lydia Foy’s 13 year legal battle will conclude with the enactment of gender recognition legislation in the near future.