LEGISLATION TO provide for the recognition of the new acquired gender
of transgender people will be published in the next year by Minister
for Social Protection Joan Burton.
It follows the successful legal action taken by Lydia Foy.
The
Minister announced her plan when she published the report of an
interdepartmental group set up in May 2010 to advise the government on
the implications of a High Court ruling that the failure to provide such
recognition contravened the European Convention on Human Rights.
Transgender
people have a condition called gender identity disorder, where their
psychological identity is different from that suggested by their
physical characteristics.
According to the report of the
interdepartmental group, there are an estimated 300 people with the
condition in Ireland, of whom the majority are males wishing to
transition to females.
The High Court case was taken by Dr Foy,
and was the culmination of a 14-year battle on her behalf to secure
official recognition as a woman, despite having being born with male
physical characteristics, and having lived her early life as a man.
Her
first case, seeking a new birth certificate, failed in the High Court.
Within days of that decision the European Court of Human Rights ruled
that a similar case in the UK contravened the European Convention on
Human Rights.
She then sought a High Court declaration that
absence of legal recognition for transgender people in Ireland
contravened the convention.
In the first such declaration under
the Human Rights Act, Mr Justice McKechnie ruled in her favour in 2007
and the government set up the interdepartmental committee in 2010,
chaired by Oliver Ryan, retired assistant secretary in the Department of
Social Protection.
Its main recommendations are that an
independent three-member gender recognition panel, made up of a medical
and a legal specialist, and chaired by an independent person from
outside these disciplines, would be set up to examine applications from
people seeking recognition of their acquired gender.
If people met
certain criteria they would be issued with a gender recognition
certificate, which would have the effect of legally recognising their
acquired gender. They would be entitled to a new birth certificate in
their acquired gender, though the original birth certificate would
remain on file.
They would be entitled to marry a person of the
opposite sex to their acquired gender or enter into a civil partnership
with a person of the same gender.
In order to qualify they would
have to meet a number of conditions, including that they had lived in
their acquired gender for at least two years; that they had provided
either a formal medical diagnosis of their condition or had had gender
reassignment surgery; that they were over 18; and that they were not in a
subsisting marriage or civil partnership.
There was some
criticism of the decision to require a married transgender person to
divorce in order to qualify for official recognition, but Ms Burton said
it would be unconstitutional otherwise, as it would be open to
challenge for permitting same-sex marriage.
The Free Legal Advice
Centres, which represented Dr Foy in her battle for legal recognition in
her female gender, said the committee’s report and the promise to
change the law were a significant milestone in the struggle for legal
recognition and inclusion of transgender persons in Irish society.
“While
we have concerns about some of the report’s recommendations, we welcome
it as an official acknowledgement and acceptance of the transgender
community and a recognition of their right to dignity and respect.”
However,
the legal group said it was concerned about the proposal that a person
already married would have to divorce to secure recognition, a point
echoed by the Irish Council for Civil Liberties.
“It will force
applicants to make an impossible choice between their life partner and
recognition in their preferred gender,” said council deputy director,
Tanya Ward.
Broden Giambrone of the Transgender Equality Network
Ireland welcomed the report, but was critical of the restrictive nature
of the proposed criteria for recognition.