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Flaws in Gender Recognition Bill need to be addressed now

‘In Denmark and Argentina, and in legislation pending in Malta, transgender people can legally self-declare their own gender free of any diagnosis or assessment process’

‘Lawmakers have a unique opportunity to bring it in line with the wishes of transgender people and international standards – and to make it truly progressive.’ Photograph: Getty Images

Early this year, as Ireland’s Gender Recognition Bill was debated in the Oireachtas, an official from the Department of Social Protection called the legislation “among the most progressive within the EU and beyond.”

But is it really?

This is Ireland’s first effort to legally recognise gender identity. It’s a very important development because transgender people in Ireland currently live in a legal vacuum. The Bill as it stands now will not require a transgender person to obtain a diagnosis of Gender Identity Disorder to change their legally recognised gender. It is a proper step in the right direction, away from pathology. But this positive element is eclipsed by other clauses that preclude basic human rights.

The Bill, being debated this month, ignores changes that transgender people have sought – namely full autonomy in defining their preferred gender identity and the ability to get documents that identify them that way. This month, as the Bill is queued up to become law, lawmakers have a unique opportunity to bring it in line with the wishes of transgender people and international standards – and to make it truly progressive.

The provision in the Bill to review the law two years after it is adopted suggests that the Government acknowledges it has flaws. But there is no reason for Ireland’s politicians to waste the chance to fix these flaws now, drawing on human rights law and existing evidence of best practices. Activists, experts, and lawmakers themselves have pushed for amendments to the draft.

They have said married people shouldn’t be forced to divorce to change their gender, that age restrictions on accessing legal gender change should be removed, and that no doctor certification should be required in the process.

An obvious easy fix is to eliminate the lurking pathological requirement.

In Denmark and Argentina, and in legislation pending in Malta, transgender people can legally self-declare their own gender free of any diagnosis or assessment process. Ireland’s retention of the “medical certification” requirement means transgender people will be beholden to a stigmatising model in which strangers hold the power to adjudicate their identity based on medical authority.

Medical professionals do have an important role to play in providing care to transgender people – both general health care and procedures related to gender transition. But no gender identity itself is pathology. The Government is responsible for establishing that distinction in law, and doing so would both support access to care for transgender people and proper education for medical practitioners. The Bill’s correct position that no diagnosis of a disorder is required would be seriously undermined by a residual requirement for medical certification. Such a requirement retains the humiliating model other countries have moved to shed.

A second easy fix is to respect the rights of children.

The draft denies access to gender recognition to children under 16, and imposes an arduous process involving courts, parents, and doctors for those 16 to 18. The best interests of the child – a central tenet of all children’s rights’ analysis and to the Convention on the Rights of the Child, to which Ireland is a party – are not well served by impeding anyone under 18 from changing their legal gender. Indeed denying children that possibility risks condemning them to feelings of stigmatisation, exclusion and discrimination during some of their most important formative years, including during their education.

There have been some suggestions that a school system in which many schools have historically provided single-sex education poses an obstacle for children to exercise their rights to gender identity. But it is particularly important for transgender children to be able to apply for legal gender recognition and access education in a setting that matches their identity. As one senator put it : “The incidence of mental health problems is high among LGBT people, and particularly high among transgender young people. We have an opportunity with this legislation to address it. As the Bill stands we are not doing so and this is a huge shame.”

Papering over significant shortcomings now will only unnecessarily prolong the protracted struggle for transgender people in Ireland to achieve their basic rights and waste an opportunity for Ireland to ensure it is setting a global example of how to best respect and protect its citizens in line with international standards.

Time has not run out to address these issues before the Bill comes up for a vote this month. It’s a matter of lawmakers recognising that small amendments on paper now will make an enormous difference to people’s lives in the future.

Boris Dittrich, a former member of the Dutch Parliament, is the LGBT rights advocacy director at Human Rights Watch.