Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College24th October 2013
/ 086 889 3878
Remarks on General Scheme of the Gender Recognition Bill 2013
for the Joint OIreachtas Committee on Education and Social Protection
24th October 2013
Thank you for the invitation to speak with you in relation to this most important legislation. At the outset, I would like to re-iterate that Ireland is obliged to do something to recognise the preferred gender identity of trans people following the judgment of the High Court in Foy v An tArdChlaraitheoir (No 2) (2007).[1] Consequently, this morning I offer some feedback on the legislative scheme proposed by the Government this summer. I am conscious that I have limited time to address you and so am happy to tease any of these points out in more depth afterwards.
The importance of Legal Recognition
I would like to begin by highlighting the importance of legal recognition. The law maintains differences in treatment between men and women. For example, under our Constitution mothers who work within the home are afforded special protection while fathers who do likewise are not.[2] To be recognisable by the law is essential in order to fully participate in society. By way of illustration, I would like to draw your attention to a case which came before the Australian High Court in 1979. In the marriage of C and D (Falsely called C) concerned the validity of a marriage between a biologically born woman and her husband who was born with an intersex condition.[3] In other words, he was born with a body which combined both male and female biological traits. In Australia, as here in Ireland, marriage is defined as the union of one and one woman.[4] The Australian Court held that as Mr C was neither man nor woman, he was incapable of marrying anyone. Thus the importance of legal recognition of one’s preferred gender identity is obvious. Where the law cannot recognise a person’s preferred gender that person may be excluded from the exercise of normal legal rights he might otherwise expect to enjoy.
Current Test for Determination of Legal Gender
At present, the legal gender of a person is determined in line with the ruling of the English High Court in Corbett v Corbett (otherwise Ashley).[5] Here it was held that the congruence of the chromosomes, gonads and genitals at birth was determinative of the gender of an individual. There are two aspects of this test: the biological fact of congruence and the temporal aspect of the birth moment as conclusive.
This legislation proposes to enable those who either lack the congruence at birth, or whose self identity does not develop in line with their biological bodies to register an alteration in their legal gender and be recognised legally as being of that gender thenceforth.
This is an important development and is to be welcomed.
That said, we are here today to discuss the proposals and to consider how to improve upon them. With that in mind, there are three constructive criticisms I would offer. These relate to the age limits, the supporting medical statements requirement and the requirement that applicants be single.
Age Limits
It is proposed that access to the rights contained in the legislation be confined to those who are 18 years of age or older. This criterion does not respect the dignity of young trans or intersex people. From the perspective of the young trans person, it is important to note that currently such a person can,independently, give legal consent to undergo gender reassignment proceduresunder s23 of the Non Fatal Offences Against the Person Act, 1997. To grant young trans people the authority to decide to alter permanently their bodies in this way while refusing to recognise legally the result of that alteration is inconsistent from a policy perspective. Furthermore, it may be offensive to the newly inserted Article 42A of the Constitution on children’s rights for failing to respect the right of children to form their own views and to have these views respected in line with their age and maturity. Young trans people can either make these life changing decisions or they cannot. Where such decisions are supported by parents or guardians to continue to refuse recognition is even less sound from a legal perspective and may breach Article 42 of the Constitution.[6]
This age constraint is particularly restrictive of the rights of intersex children. As defined earlier, an intersex person is one whose body combines male and female biological traits. Intersex can manifest at various stages throughout a person’s life: birth, childhood, puberty, in adulthood, or be discovered on autopsy. At present, all births must be registered no later than three months after the birth taking place.[7] Where the existence of the intersex condition does not manifest until after this deadline, children may be stuck with a birth certificate which does not reflect their physical reality or the gender identity which they subsequently develop. Such a situation was considered recently by the High Court in S v An Bord Uchtála(2009).[8] The case involved a child with an intersex condition who was the subject of a foreign adoption order. The birth certificate and subsequent adoption certificate noted that the child was female. However, upon closer medical examination once the child was brought to Ireland, it was found that the specific intersex condition the child had was more nuanced than originally thought and thus this child was more likely to identify as a boy. His parents sought to have the adoption certificate amended to reflect this reality so that he could participate fully in society as a boy and attend the boys’ school. The Adoption Board refused the application as it considered granting such a request was beyond its authority. On judicial review, the High Court found in favour of the boy’s parents and ordered the alteration of the certificate. Unfortunately, as this was an ex temp judgment of the court, it is of limited precedential value and other families are not guaranteed as of right that they could secure new documentation for their intersex children. By refusing to permit those under 18, or their parents or guardians on their behalf, to make an application for legal recognition in a gender other than that recorded on the birth certificate this proposed legislation continues to discriminate against intersex children. Thus, I recommend that the scheme be extended to permit applications by, or on behalf of, trans and intersex children and young people.
Requirement for Supporting Medical Statements
On December 5th last year, I appeared before this committee to advise you on this very matter in the context of the recommendations contained in the Report of the Gender Recognition Advisory Group.[9] On that occasion I criticised the recommendation that applicants would need evidence of a diagnosis of Gender Identity Disorder in order to successfully ground an application. I noted that such a requirement was contrary to the most recent statements on international human rights law on this issue. In particular, Former Council of Europe Commissioner for Human Rights Thomas Hammarberg recommended that access to legal rights such as gender recognition be de-coupled from medical interventions.[10] Effectively, recognition ought depend upon diagnosis or other medical treatment pathways.
From that perspective, I welcome the fact that there is no overt diagnostic criterion within the proposed legislative scheme under consideration. However, that is not to say that the proposed legislation depathologises access to legal gender recognition and follows Hammarberg’s recommendation by dispensing with the need for diagnosis. Rather Head 6 of the proposed legislation requires that an applicant produce a ‘statement from his/her primary treating physician, in a form to be prescribed by the Minister, which confirms that the person has transitioned / is transitioning to their acquired gender and that he/she [i.e. the treating physician] is satisfied that the person fully understands the consequences of his/her decision to live permanently in the acquired gender’. In essence, applicants need a letter from a doctor confirming they are being, or have been, treated for a medical condition and understand the consequences of an application under this legislation. This is diagnosis in disguise. Yet it goes further than merely confirming diagnosis, as the doctor is also required to state that applicants have sufficient mental capacity to fully appreciate the consequences of an application. In this way, the proposed legislation not only maintains the diagnostic criterion but also obliquely reinforces the prejudice that trans people suffer from a mental disorder. This at a time when the medical community is seriously considering removing trans diagnosis from the list of mental disorders. Consequently this requirement is considerably outmoded. I recommend that it be dispensed with in its entirety.
Requirement to be Single
The final point I would like to raise for consideration is the criterion that applicants be single. Effectively this requires that any potential applicant who is married or in a civil partnership must divorce or dissolve that partnership prior to making an application. Such a requirement seems to be contrary to the special protection afforded the marital family under Article 41 of the Constitution. Furthermore, it may not be possible for happily married potential applicants to dissolve their marriages. Under Article 41.3.1(ii) of the Constitution and section 5(1)(b) of the Family Law (Divorce) Act 1996 a divorce will not be granted where there is a reasonable prospect of reconciliation between the spouses. This almost impossibility is further reinforced by the requirement to live apart for four of the five years prior to instituting divorce proceedings.[11] To meet the living apart requirement successfully, spouses must live separate lives where at least one of the parties has resolved that the relationship is no more.[12] Proving this living apart is even more difficult where would be divorcees continue to inhabit the same house. In these circumstances an application for divorce may not be successful. Nor is annulling the marriage a desirable option as this would strip the parties and any children of the marriage of the legal rights they have as members of a constitutionally protected family and will result in the denial of reliefs, such as maintenance orders, which are only available to separated or former spouses.
To dispense with the requirement to be single will allow married applicants to be legally recognised in their preferred gender. It is important to note that where a validly contracted marriage survives the transition process it does not transform into a same sex marriage upon the legal recognition of the preferred gender of the trans spouse. According to the law on nullity, the defining moment when assessing the validity or otherwise of the marriage is the moment at which the marriage occurs.[13] No subsequent event can render a valid marriage invalid.[14] Thus where the spouses presented, and were legally recognised, as man and woman at the moment of marriage that marriage continues to be valid notwithstanding the fact that one spouse thereto subsequently is recognised as being of the preferred legal gender. Therefore, while trans marriages may appear on the surface to be such they are not in fact same-sex marriages. Consequently, I recommend dispensing with the requirement to be single.
Thank you.
1
[1]Foy v An tArd Chlaraitheoir (No 2) [2007] IEHC 470.
[2] Article 41.2.1°.
[3]In the Marriage of C. & D. (falsely called C.) , (1979) F.L.C. 90 -636 (Australia)
[4]Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130.
[5]Corbett v Corbett (Otherwise Ashley) [1971] 2 All ER 33.
[6] North Western Health Board v HW and CW [2001] 3 IR 622.
[7] Civil Registration Act 2004, s19(1).
[8] S v An Bord Uchtála Unreported High Court, 4 December 2009, Sheehan J.
[9] Report of the Gender Recognition Advisory Group (Dublin: Department of Social Protection, 2011) (hereinafter ‘GRAG Report’). available online at .
[10] Hammarberg, T. Human Rights and Gender Identity CommDH/IssuePaper(2009)2, Strasbourg, July 29, 2009, available online at .
[11] Article 41.3.1(i) of the Constitutionand section 5(1)(a) of the Family Law (Divorce) Act 1996
[12] M. McA v X. McA [2000] 2 ILRM 48.
[13] Napier v Napier [1915] Probate 184.
[14] AB v NC (2006) IEHC 127.