The Gender Recognition Bill 2014, currently before the Oireachtas, is a very belated legislative attempt by the State to comply with the findings of the European Court of Human Rights in the case taken by Dr Lydia Foy. It is no more than that; it is certainly not progressive. Instead, it draws on the outdated legislation of some states to establish for Ireland a gender recognition framework that is disrespectful to transgender persons, out of line with international good practice and at odds with the country’s international human rights commitments. It will be an avoidable shame if this Bill is adopted without the benefit of significant amendment.
The fundamental test of the quality of this Bill should be that of how well it honours the right of everyone to be recognised as their gender of choice. We all have the entitlement to live as who we are, to be welcomed in society as the person we choose to be. That principle is enshrined in international human rights law.
In 2006, the Yogyakarta Principles, a statement outlining the relevant law, were adopted by a group of experts, including Mary Robinson and other distinguished lawyers worldwide (I was the group’s rapporteur). Drawing from the relevant international human rights treaties, the statement applied the legal standards to the particular issues of sexual orientation and gender identity. The Yogyakarta Principles are widely considered by governments, legal experts, international human rights bodies and many national courts as an authoritative legal statement. They have been spoken of supportively by Irish diplomats in debates at the United Nations Human Rights Council.
Yogyakarta principle three states: “Each person’s self-defined sexual orientation or gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” The centrality of self-determination is reinforced by the definition of gender identity provided in the Yogyakarta statement’s introductory comments as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth”. The Gender Recognition Bill violates the right of self-determination in at least two ways.
First, it requires certification from a doctor that he or she believes an applicant “has transitioned or is transitioning [to the] preferred gender” and that he or she is fully satisfied that the applicant understands the consequences. This provision would undermine the autonomy of the applicant, may impede the exercise of personal choice and constitutes a disturbing intrusion into the private sphere.
The Bill should be amended so that the sovereign choice of the applicant is acknowledged. Doctors need to be removed from the picture, as their involvement suggests that gender is a matter of biology. It is only a small step from that to an insistence that people undertake “gender reassignment” surgery and treatments before being recognised in a new gender identity. This would violate the legal standard, reflected in the Yogyakarta Principles, that gender identity “may” but need not “involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means”. Or as I heard a transgender women put it recently: “How dare anyone insist that I be castrated?”
The second problem concerns the requirement that applicants have the intention of living in the preferred gender for the rest of their lives, and the related impossibility of applying for gender recognition more than once. These provisions are at odds with the lived experience of some people, whereby gender is a shifting identity over the course of their lives. As such, the Bill would not only undermine free choice but also lock people into identities in a manner no less abusive than that faced today in the absence of any legislation.
The Bill’s provisions regarding children are a cause for concern. No possibility at all is provided for recognition of gender in the case of children under the age of 16. For children aged 16 to 18, a very complex regime is laid out, requiring the intervention of a court and of two doctors, as well as parental consent.
While I appreciate the good intentions that lie behind these requirements, it is clear that they inadequately reflect the Yogyakarta Principles (which more or less transpose the language in the UN Convention on the Rights of the Child), that, “in all actions or decisions concerning children, [the State will ensure] that a child who is capable of forming personal views can exercise the right to express those views freely, and that such views are given due weight in accordance with the age and maturity of the child”.
It is not just children who should be consulted. It is an axiomatic requirement of human rights law that any actions of the State that have a profound human impact must be in respectful consultation with the affected communities.
In the present case it is not evident to me that such a meaningful consultation is taking place – too many concerns, by no means limited to the few mentioned here, are going unaddressed. It is not evident why that is the case, as, when it comes to gender recognition, Ireland is not being asked to be a pioneer. Others have led the way, notably Argentina, with a law that is explicitly grounded in respect for human rights. Here in Europe, good laws have also been adopted by Malta and Denmark and are under consideration elsewhere.
The Oireachtas needs to seize the opportunity to make good a poor Bill and demonstrate how it can put human rights above all else. To miss that opportunity is both an illegality and a disservice to a small but long-suffering group of our fellow Irish men and women.
Prof Michael O’Flaherty is professor of human rights law and director of the Irish Centre for Human Rights, NUI Galway