New Programme for Government Promises the Introduction of Gender Recognition Legislation

Next Monday it will be two years since Mr Justice Liam McKechnie handed down his groundbreaking decision in Foy v An tArd Chlaraitheoir (No 2). In that case His Lordship issued the first ever Declaration of Incompatibility between Irish law and Ireland’s obligations under the European Convention on Human Rights. The cause of the incompatibility was the inability of Irish law to recognise the preferred gender identity of transgender people.

The Declaration should have put in motion a series of events which would have resulted in the Taoiseach reading the order into the records of each House of the Oireachtas within 21 working days (s5 of the ECHR Act, 2003). However, as this was the first time such an order had been handed down, His Lordship put a stay of two months on the implementation of the order to give the State the opportunity to decide whether to appeal the decision to the Supreme Court. On Friday, March 28^th 2008 notice of such an appeal was lodged with the Supreme Court. The case has yet to be listed for hearing.

In an opinion piece I published in the Irish Times shortly after the judgment was handed down, I urged the Government not to panic in response to the Declaration. I highlighted the problems experienced previously in Ireland when knee-jerk legislation was introduced in the aftermath of the CC and A cases, and thus recommended that the Government take its time to properly consider all the issues raised by the potential introduction of gender recognition legislation. Little did I realise how well my advice would be heeded.

Two years later and no progress whatsoever has been made. In his judgment in Foy (No 2), Justice McKechnie noted that when an equivalent declaration of incompatibility was issued in the UK in the Bellinger case, the British Government responded within the year and introduced the Gender Recognition Act, 2004. This piece of legislation has been warmly welcomed by the trans community and is perceived to position Britain to the fore among progressive states willing to legally recognise trans people. Contrastingly, Ireland and Lithuania are the only two remaining EU member states which do not have some for of legal recognition for transgender people.

In the new Programme for Government, the coalition partners committed to ‘introduce legal recognition of the acquired gender of transsexuals’. This commitment has been welcomed by the Transgender Equality Network of Ireland. Justice McKechnie noted that the Gender Recognition Act, 2004 (GRA) in the UK could ‘only be seen as a significant piece of social reform’. However, in considering introducing gender recognition legislation to Ireland, it is not sufficient to simply ‘cut and paste’ the English legislation into Irish law. The UK legislation raises a number of difficulties in the Irish context.

Under the GRA, full gender recognition will only be granted to those who are single (s4(3)). Thus if a person was married prior to transitioning and remains married after transitioning, the Act will only grant that person an interim gender recognition certificate. Thus to achieve full recognition, the person would have to divorce their spouse. This is problematic for two main reasons. Firstly, it forces the people seeking recognition to choose between their right to be married and their right to gender recognition. Secondly, and more worryingly, in mandating divorce, the Act infringes the right of the supportive spouse to marry by limiting their right to remain married. Given the special position of the marital family under Article 42 of the Irish Constitution, this divorce requirement would raise difficulties under Irish law.

In order to attract the rights contained in the GRA, a person must have a diagnosis of gender identity dysphoria (GID) (s2(1)). This has been broadly welcomed by trans activists and academic commentators alike, as recognition does not depend on successful completion of gender reassignment surgery. Thus those who, for whatever reason, be it medical, financial or other, are unable to undergo surgery can nonetheless be legally recognised in their preferred gender identity. However, in linking the rights contained in the legislation to a diagnosis the Act creates new exclusions. Firstly, it automatically excludes those who do not have a diagnosis. Trans is a much more inclusive category than simply transsexual people and also include those who question their gender identity but do not entirely fit the ‘wrong body’ narrative necessary to be diagnosed with GID. Furthermore, the definition of GID automatically excludes intersex persons from its ambit. An intersexual is a person who biologically combines both male and female traits. The GRA has no space to recognise those intersexuals who identify in the gender other than that they were assigned at birth, nor those who might identify outside the binary man/woman gender dyad.

Finally, s11 of the Passports Act, 2008 does contain some official recognition of trans people and permits anyone ‘who has undergone, or is undergoing, treatment or procedures or both to alter the applicant’s sexual characteristics and physical appearance to those of the opposite sex’ to be issued with a passport which reflects that preferred gender identity. Similarly, the commitment in the Programme for Government is to introduce gender legislation for to recognise the ‘acquired gender of transsexuals’. This kind of language seems to suggest that exercise of the right to recognition will be confined to post-operative transsexual persons. This is in marked contrast to the GRA approach which does not demand any type of medical and/or surgical intervention prior to recognition.

Introducing gender recognition legislation is a delicate matter. Legislators will need to carefully consider to whom the rights will be made available, post-operative trans people, anyone with a diagnosis of GID or some broader definitional category which will encompass all those who might seek recognition but who are excluded by either of the first two definitions. Furthermore, when drafting such legislation, the rights of others, for example spouses or children, who might be affected by that trans person’s change in legal status will also need to be considered. The commitment to introduce such legislation in the Programme for Government is to be welcomed. Ireland now has the opportunity to learn from the British experience and draft truly inclusive gender recognition legislation, and position ourselves as world leaders in this regard. In order to achieve such an end, uncomfortable conversations will be required in the corridors of power, but this is necessary in order to ensure, enshrine and vindicate the recognition rights of all as guaranteed under Article 8 of the ECHR.