Transgender bill - changes welcome but may still fail human rights standards

19 June 2014

The revised text of a draft Bill to finally recognise transgender people in their true gender is welcome, says legal rights group FLAC, but warned against any further delay in introducing this much needed legislation. The independent human rights body also reiterated concerns around government proposals on this issue, such as forced divorce for already married couples and the failure to include gender identity as an equality ground, stating that such elements could leave the state lagging behind the rest of Europe.

FLAC Director General Noeline Blackwell said “the Joint Oireachtas Committee published its report on the draft Bill earlier this year, supporting the proposals of FLAC and other campaigners for a law that meets human rights standards as well as being inclusive and compassionate. This revised text from the Minister for Social Protection is a welcome improvement on the previous draft Bill, now including intersex people and reducing the legal age to 16.

“However FLAC is disappointed that the government is still proposing to require a happily married or civilly partnered person to divorce in order to qualify for gender recognition. Both Germany and Austria have struck down forced-divorce elements of their transgender recognition laws as breaching fundamental human rights laws. FLAC believes that such a provision would be certain to be challenged constitutionally and on international law principles,” she continued.

Further, FLAC believes that the government could address the discrimination and abuse Trans people face purely because of their identity by simply making ‘gender identity’  a ground upon which discrimination is prohibited under the Equality Acts. In any event a law was urgently needed given the already very long delays involved.

“For almost 17 years, FLAC has been acting for our client, Lydia Foy, in her landmark case on the state’s failure to recognise her true gender identity. Ireland has been in breach of international law on this issue for almost seven years now. There must be no further delay on this law and we are concerned that that no timeline is given for this Bill. Lydia Foy must finally get her birth certificate,” said Ms Blackwell. The High Court ruled in October 2007 in Foy v Registrar of Births, Marriages and Deaths that the state was in breach of its obligations under the European Convention on Human Rights, issuing the state’s  first ever Declaration of Incompatibility with the ECHR. By failing to act on a decision by the Irish courts that the state is in breach of the ECHR, FLAC expressed concern that Ireland is showing grave disrespect for its legal obligations.

The organisation welcomed the fact that 16 and 17 year-old could now apply for gender recognition certificates, and that there were less intrusive provisions in the revised text for adult applicants.

However, even with the support of their parents and doctor, those aged 16 and 17 would still be required to have a second independent doctor assess their maturity and would also have to make a court application and get court consent. This means verification and approval from four sources before being allowed to apply. FLAC Senior Solicitor Michael Farrell said it was hard to see the necessity to apply to a court in the case where both the young person concerned and her/his parents agree on the issue and given the very restrictive medical requirements in the draft text also. 

“There is also a clear need for provision, whether by statute or Guidelines to schools and public bodies, as to how to support young people under 16 who want to change their gender as recorded.  Schools need to know how to treat such young people because as it stands schools are being left without any legal guidance on the matter. They need direction on how to protect transgender children against bullying, for example. This is often a matter of life or death and must be addressed,” said Mr Farrell.

“It would be a tremendous pity at this late stage for the state to produce a law that is anything less than fully inclusive of all Trans people and that fails to protect this vulnerable group, which has waited so long for the simple act of recognition,” concluded Ms Blackwell.

/ENDS

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Editors’ notes:

1. FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal access to justice for all. As an NGO, FLAC relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work.
2. We offer basic legal information through our telephone information line and free legal advice through a network of 80 volunteer evening advice centres. FLAC also campaigns on a range of issues including personal debt, fairness in social welfare law, public interest law and civil legal aid.
3. Check out the revised text of the General Scheme of the Gender Recognition Bill 2014.
4. FLAC made a submission on the previous draft bill in September 2013.
5. Together with other concerned organisations and individuals, FLAC presented its concerns around the previous draft Bill to the Joint Oireachtas Committee on Education & Social Protection in October 2013. Summarised, these were that the scheme proposed would force transgender people already in loving and committed married relationships to divorce their partners before applying for gender recognition; that it did not recognise transgender children under 18 years; that there was an over-reliance on medical certification; and that the draft Bill should include provision for legal sanction in cases of discrimination of transgendered people by way of including a new discrimination ground of gender identity. You can read a transcript of the presentations online. 
6. The JOC report from January 2014 on the previous version of the draft Bill is also online. 
7. You can download a comprehensive briefing note on the Foy case (Feb 2013).
8. You can read a press release on the issuing of new proceedings in the Foy case.

9. FLAC: Additional Note on Compulsory Divorce:
   The enactment of Gender Recognition legislation has been allegedly help up by concerns that giving legal recognition to transgender persons who had married in their previously recorded gender would amount to accepting same-sex marriage.  It appears that the Department of Social Protection has obtained legal advice that in order to avoid this, married transgender persons should be required to divorce as a precondition for legal recognition.
   
   This is a harsh and legalistic view, lacking in sympathy and understanding for people involved in such situations and quite disproportionate in its likely effect.  Given the Constitutional requirements for divorce, it would require a loving couple who wish to remain together, to live apart for four years and to perjure themselves and mislead the courts by claiming that there is no reasonable prospect of reconciliation between them. Few relationships would be likely to survive such conditions.
   
   Such a requirement would appear to be unconstitutional and likely to cause considerable suffering and distress and in any event, it is quite unnecessary.  No-one could seriously suggest that recognising married transgender persons would increase the already considerable support for same-sex marriage.
   
   Two of our EU partner countries, Austria and Germany, had similar ‘compulsory divorce’ provisions in their Gender Recognition legislation.  Neither country allows same-sex marriage and the same argument about not encouraging it was made to support their ‘compulsory divorce’ provisions. However, the Constitutional Courts of both Austria and Germany struck down this requirement in 2006 and 2008 respectively.  The German Court “concluded that Section 8(1) (2) [of the Transsexual Law] limited unacceptably the ability of a married transsexual person to fully enjoy the constitutional right to realise his or her self-determined sexual identity” (International Commission of Jurists: Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva, 2012. 1 BvL 10/05, Federal Court of Germany 27 May 2008, pp185-6;  Austrian Constitutional court, Verfassungsgerichthof B947/05 (21.06.2006).
   
   Neither government sought to reinstate the compulsory divorce requirement after they were struck down  and a small number of transgender persons have remained married and live happily with their spouses without any adverse effects to German or Austrian society.
   
   If such a provision is included in Gender Recognition legislation here, it is certain to be challenged constitutionally and, if necessary, before the European Court of Human Rights. FLAC queries , why bother to include a provision that could only affect a handful of people, that would lead to a needless constitutional wrangle and that would probably be unworkable anyway?