State must attempt to enact realistic transgender laws
OPINION:The advisory group offends when it refers to transgender people as ‘lonely’ and ‘passive’, writes LESLIE SHERLOCK
THE GENDER Recognition Advisory Group recently presented a long-awaited report to Minister for Social Protection Joan Burton outlining recommendations for a scheme to allow transgender people to apply for legal recognition in the form of gender change on their birth certificates.
As an educator on transgender issues, I was naively optimistic when the group called for submissions.
The notion that the people would be listened to, however, was disproven by the report’s over-reliance on medical opinion and the clear absence of transgender voices in its pages.
Transgender research in the Irish context was also surprisingly ignored, with Transgender Equality Network Ireland’s (TENI) formative, “Transphobia in Ireland” (2009), not cited once. The resulting recommendations were a near “copy-and-paste” of the UK’s Gender Recognition Act 2004, without regard for the ways in which the UK model is outdated and impractical in the Irish context.
The advisory group offends by referring to transgender people as “lonely, distressed, passive”, making recommendations which dehumanise transgender experiences.
The group recommends that applicants fulfil the medical criteria of gender identity disorder (GID) diagnosis or present evidence of gender reassignment surgery, all to be approved by a three-person panel comprising one medical, one legal, and one independent person. GID is classified as a mental disorder, which many transgender people find offensive.
An identity disorder requirement ignores the diversity of transgender experiences that fall outside the narrow diagnostic criteria, and explicitly disqualifies individuals with intersex experiences. Addressing the dearth of medical professionals with transgender expertise in this country is deemed “outside the remit” of the group, yet the recommendations overly rely on this minuscule group of medical professionals.
Gender reassignment surgery is not available in the Republic, yet proof of it is recommended as the alternative medical requirement, despite being inaccessible to many for personal, health and financial reasons. What other area of law requires medical procedures for a person to access rights and recognition?
Until 1990, homosexuality was classified by the World Health Organisation as a mental disorder. The implication was that being gay, in and of itself, implied impairments to judgment, stability and capability. Today this seems absurd.
Instead of a diagnosable mental disorder, being lesbian, gay or bisexual is now seen as an aspect of identity which is self-determined. Imagine if homosexuality was still considered a mental disorder, and to access new civil partnership legislation required submitting diagnosis as “evidence” prior to the relationship’s recognition. Outrage would ensue; yet this is the advisory group’s proposal for the legal recognition of transgender people.
Like lesbian, gay and bisexual people, most transgender individuals feel they are experts on their experiences and procedures for accessing legal rights should reflect this. With the marginalisation and social exclusion that many transgender people face, gender change is no small undertaking. Like declaring a gay identity, identifying as transgender is not taken lightly.
Perhaps the group’s most widely criticised recommendation is the requirement that an applicant is single. This would force many to make the impossible choice between having their gender legally recognised and remaining in a marriage or civil partnership.
The proposal is callous and disregards the reality that many transgender people are in loving relationships. Unique complications arise with the very strict requirements for a divorce to be granted in Ireland – four years separation with no prospect of reconciliation.
For the transgender person with a family, this choice is impossible. As same-sex civil partnerships in Ireland afford more than 150 fewer rights and responsibilities than marriage, the UK model of fast-tracking and “swapping” a marriage for a civil partnership is unsatisfactory, even if it were a possibility.
Across Europe, there is movement away from requirements such as GID diagnosis and forced divorce. The Council of Europe commissioner for human rights, Thomas Hammarberg, has explicitly called for the separation of medical requirements from legal rights.
The Republic is one of the last countries in Europe to enact gender recognition legislation. We should grasp this opportunity and implement good practice.
Respectful legislation would rely on a transgender person’s self-determination of their identity, rather than a psychiatric diagnosis. Realistic legislation would recognise that transgender people have relationships and families, and would protect these families.
Joan Burton will leave a legacy with this legislation. Will she be remembered for legislating for the continued discrimination of Ireland’s transgender community, or for grasping the opportunity to lead Europe in taking a strong stance for human rights?
It is ironic how, in Ireland, we have come full circle with the divorce issue. During the 1980s and 1990s people from all sections of society fought to change the Constitution which prohibited dissolution of a marriage.
Today transgender people may be forced to divorce. The Irish Constitution’s special protection of marriage and the family seems not to be extended to one of Irish society’s most marginalised groups.
Leslie Sherlock is an organiser with gay rights group LGBT Noise, a PhD candidate at Trinity College Dublin, a transgender activist and the partner of a transgender person