New gender law needs to recognise trans people’s privacy and right to a family life
Opinion: People are forcibly “outed” every time they are asked to produce a birth certificate
‘Seven years on, Dr Lydia Foy and the Irish trans community are still waiting to be legally recognised.’ Above, Dr Lydia Foy with solicitor Michael Farrell in 2007 outside the High Court in Dublin after the court ruled that the State is in breach of Article 8 of the European Convention on Human Rights. Photograph: Frank Miller
In June Time published a cover story titled “The Transgender Tipping Point” and featured Laverne Cox, a star of the hit TV series Orange is the New Black, as the first openly transgender person to grace the cover of this seminal magazine. However, while transgender (or trans) issues are finally entering the mainstream media and gaining much- needed visibility, many members of the trans community still exist on the fringes of Irish society and experience high levels of stigmatisation and discrimination.
A major cause of the marginalisation of trans people in Ireland is the lack of State recognition of trans identities. While you can change your gender marker on certain documents such as your passport or driving licence, there is no legal process to change the gender on your birth cert.
This is critical, as birth certificates are an important identity document in the State and are furnished at key moments in all of our lives. We have to produce a birth certificate to obtain a PPS number, to access social welfare, and to marry. At Transgender Equality Network Ireland (Teni), we regularly hear about the negative impact of the State’s lack of recognition for trans people.
People are forcibly “outed” every time they are asked to produce a birth certificate. Young people miss out on their college places because the CAO office has no capacity for dealing with trans people. Trans people have to explain ourselves – to validate our identity – over and over. But legal gender recognition goes beyond the practicalities of daily life; it is about the State recognising that we exist.
The Republic bears the unenviable distinction of being the only country in the EU that does not allow for the legal recognition of trans people. This is despite a High Court ruling in 2007 that found the State to be in breach of its positive obligations under article eight of the European Convention on Human Rights in failing to recognise Dr Lydia Foy in her female gender and provide her with a new birth certificate. This was the first declaration of incompatibility to be made under the Act. Seven years on, Foy and the Irish trans community are still waiting to be legally recognised.
Birth cert anomalyIn June the Government published the General Scheme of the Gender Recognition Bill, which addresses the birth cert anomaly. It serves as a framework for the legislation that is scheduled to be introduced later this year.
Teni has welcomed the progress being made to advance the Gender Recognition Bill and commends Minister for Social Protection Joan Burton for moving the legislation forward. However, this proposed legislation falls short of human rights standards and, if passed in its current form, will infringe upon trans people’s right to privacy, personal dignity and family life.
Today the Equality Authority publishes a report on the Gender Recognition Bill in which it highlights some of the key issues that the Government should address.
This is a critical moment for trans rights in this State. It is essential that the law that is introduced reflects the realities of the trans community and facilitates our inclusion in Irish society. It is essential that the trans community is integral to the legislative process.
The most striking requirement in the proposed legislation is that a person be single in order to have their gender legally recognised. This will in effect exclude trans people in existing marriages or civil partnerships. If the single requirement remains, it will have a devastating impact on families across the State. Happily married trans people will be forced to make an impossible choice; they must choose between their families and their right to be legally recognised. This is a choice no individual should have to make.
Another area of concern is the age criteria. Many trans people are aware of their gender identity at a young age. Teni works closely with families who support their trans children to live true and authentic lives. However, these young people are particularly vulnerable to peer bullying because they are perceived as different. Teni has documented many cases of young trans people who must be withdrawn from school or who drop out because of the treatment they receive at the hands of their classmates, teachers and the administration.
In the most recent iteration of the draft legislation, the Government has lowered the age criteria to include 16- and 17-year-olds. This is a significant step, which will improve the lives of many young trans people who will now be able to obtain legal recognition prior to leaving school. However, the suggested process is onerous. To be legally recognised, young people aged 16 and 17 will require parental consent, two letters from physicians and a court order.
Exclusion of under-16sTeni is deeply concerned that the legislation excludes those under 16. The perpetuation of young trans people’s exclusion through the failure to legally recognise their gender identity reinforces the stress and isolation often felt by trans youth.
While the Government has described the process as a “safeguard”, the Ombudsman for Children’s office disagrees. Advice published in October 2013 stated that “maintaining an absolute exclusion on young people or their parents seeking a gender recognition certificate is a disproportionate interference with young people’s right to gender recognition”. It recommended that the legislation should “make provision for children and young people by removing the criterion relating to minimum age”.
The State has the opportunity to introduce legislation that supports and protects trans people. It is vital that the legislation is firmly grounded in a human rights model. We need to advance gender recognition legislation as a matter of urgency, because every day that we do not legislate, we do harm.
The Republic has the potential to be the first country in Europe to introduce legislation that truly respects the rights and privacy of trans people. We must not miss this opportunity.
Broden Giambrone is chief executive of Transgender Equality Network Ireland, a non-profit organisation dedicated to advancing the rights and equality of trans people and their families