The slimmed-down hate crime Bill will retain special protections for transgender and non-binary people, the Department of Justice has said.
The Government has confirmed that it intends to shelve the controversial hate speech elements of the Bill but the hate crime legislation – which provides for tougher sentences for crimes such as assault that are motivated by hatred – is expected to be brought to the Dáil in the coming weeks.
A spokeswoman for Minister for Justice Helen McEntee confirmed to The Irish Times on Tuesday that the definitions of gender contained in the original Bill would remain.
Unease over these aspects of the Bill among backbenchers was one of the things that caused the Government to rethink its approach.
Anti-discrimination laws have established “protected characteristics” – race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation and disability – and those protections are extended in the hate crime legislation.
The legislation provides for tougher sentences for crimes which show hatred motivated by these protected characteristics.
The proposed law extends the definition of gender to include, “the gender of a person or the gender which a person expresses as the person’s preferred gender, or with which the person identifies, and includes transgender and a gender other than those of male and female”.
Leading a revolt against the legislation in the Seanad last year, Senator Michael McDowell asked “what is intended by the term ‘transgender’ and the phrase ‘a gender other than those of male and female’?”. The Department of Justice supplied no response.
There is some disquiet among Government TDs about being pitched into a debate about how many genders there are.
However, confirming that these definitions would remain in the Bill, the department said on Tuesday: “If someone is assaulted because they are transgender, that is a hate crime.”
“People identify as non-binary. That’s a fact. If someone follows a non-binary person after they leave a gay nightclub, and then assaults them while shouting homophobic abuse, they would likely be charged with assault causing harm aggravated by hatred (carrying a max sentence of 12 years, instead of 10 years because of the aggravating factor). If it’s not found that it has been aggravated by hatred, then the person could still be charged with assault causing harm,” it said.
“A definition is required to protect that person. It has absolutely no implications outside of this law.”
The department also asked: “Does Michael McDowell believe that this person should be protected by this law, or does he believe this person should have to identify as male or female to be protected?”
However, speaking to The Irish Times, Mr McDowell said: “The Bill suggests that there are genders (plural) other than male or female. It does not enumerate or describe such other genders.”
Mr McDowell said that the law – in the Gender Recognition Act, which allows people to legally change their gender – currently recognised two genders. He said the Constitution also adopted a binary attitude, citing the Irish language text: “cibé acu is fir nó mná iad”.
[ Michael McDowell: Clarity needed on definitions of gender in new hate speech BillOpens in new window ]
“If the Government wishes to provide heavier punishment for victims of crime committed because they are victimised as transgender, let them simply say that. There is no problem with doing so. There is no case or need for creating a multiplicity of unspecified subjective statuses described as genders,” he said.
Mr McDowell also said that unspecified genders would raise questions “over statutory provisions providing for gender balance in judicial appointments, board compositions, etc”.
“There is no case for legislating for an open-ended multiplicity of subjective genders the meaning of which is obscure,” he said.
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