Transgender people need laws that reflect reality
OPINION:Legislation on gender recognition should not include concepts that will make the situation worse for people
I MET Danny, a transgender boy, at Leinster House recently. He told me how he used to be scared of himself. As he put it, he spent a long time hiding from “the inside of me”, “the core of me”.
The educator Margaret Wheatley, a great leader for progressive change, speaks of fear as being “fundamental to being human ... what is important to notice is what we do with our fear. We can withdraw or distract or numb ourselves. Or we can recognise the fear, and then step forward anyway. Fearlessness simply means that we do not give fear the power to silence or stop us.”
This is what we as legislators must do – step forward and embrace the realities of transgender (trans) people’s lives. Our legislation needs to recognise that there are Irish people who do not “fit” traditional notions of gender (the binary model of male/female) and those who regard the biological sex into which they were born as not matching their known and felt gender.
Our laws must not be numb and insensitive to lives that traditional values frown on and silently reject, often with disgust (known as transphobia). Our legislation must not be based on fear, nor embody that fear in its terms. One of the primary challenges of the 21st century is for lawmakers to catch up with the full continuum of humanity, so that no one person is shamed by law, or shamed by the lack of law, such that they are forced to hide or suppress who they are. Fortunately, there are courageous trans individuals who organise, advocate and educate the rest of us about their realities, their dignities and their humanities. They assist people like Danny to meet himself in his true colours.
I think we need law that protects our citizens from shaming. What does shame feel like? I know something about what shame feels like because my sexual identity did not fit in an exclusive/excluding heterosexual norm as I was growing up. And although Irish and other societies have gone a long distance to normalise homosexual identity through law and policy, some people still don’t get it – like a man recently who looked through me then away from me as I introduced Ann Louise Gilligan to him as my spouse and life-partner.
That we are likely to have legislation brought forward “in the coming weeks” in relation to transgender people should be a cause for celebration – and yet Minister for Social Protection Joan Burton was not greeted warmly by a group of trans people when she announced it. Their concern, and mine, is that it will include concepts that will make the situation worse. Trans people may be required to choose between undergoing intrusive surgeries or accepting a diagnosis of a mental illness in order to have their gender recognised.
Worse still, a forced divorce clause may be included, so that by recognising that someone is trans we do not create “gay marriages” as an unwanted byproduct.
If we are to make law that embraces humanity we are obliged to review best practice around the world. A recent report from the European Commission has recommended that member states go beyond the minimum standard of protection established in EU case law to adequately protect trans people in national laws.
Legislating for the gender recognition of trans people may seem like a hugely complex and cumbersome legal minefield but sometimes the most complex of questions requires the simplest of answers. This year in Argentina one such simple answer was given. It became the world leader in gender recognition in introducing the most expeditious and transparent recognition process yet. Once the law-making process was purged of transphobic assumptions and discomfort or disgust with gender variance the result was a model that offered real protection and real recognition for the people who avail of it.
The Argentinian law specifically states that all people have the right to the recognition of their gender and a simple administrative procedure fulfils that promise. The law does not require a diagnosis of a mental illness to access a legal right, nor does it require that medical intervention take place, but crucially it guarantees a persons access to medical intervention should they wish.
In Ireland we have a unique opportunity to shake off the unfortunate distinction of being among the last countries in Europe to legislate for gender recognition. We must look to the example of Argentina and the Netherlands and base our laws on the current international debate not the debates of a decade ago. (The Netherlands has recently announced legislation that will follow the Argentinian example and forgo the requirement of a medical diagnosis.
Ireland remains in breach of the European Convention on Human Rights despite the long legal battle of Dr Lydia Foy. And if Ireland introduces legislation that incorporates a “forced divorce” clause, requiring an individual to choose between family and identity, we will inevitably see more legal challenges.
It is worth remembering, moreover, that we do not have a Supreme Court interpretation of our Constitution that excludes the right of same-sex couples to marry. This is why my spouse, Ann Louise Gilligan, and I are continuing to seek a Supreme Court interpretation of the human right to marry in Zappone Gilligan v Ireland, the Minister for Justice and the Attorney General (2013).
Austria and Germany are like Ireland in that they do not currently have marriage equality. In 2006 the Austrian constitutional court held that being married should not prevent gender recognition. In 2008, the German constitutional court ruled that requiring people to be unmarried in order to gain recognition violated German law.
We have two superior courts that have ruled against a person’s marriage barring access to gender recognition. We have two courts which have ruled that the right to gender recognition ought to be separated from the right to marry. More courts will certainly follow.
Why would Ireland consider introducing legislation that is already out of date and would inevitably have to be amended? What are we as Irish legislators scared of? If Danny can get through it, surely we can too.