Minister for Justice Helen McEntee gets her first Oireachtas outing since her return from maternity leave when she appears in the Seanad this evening to pilot the hate crime and hate speech legislation through the first of its stages in the Upper House. With two children under three at home, the Seanad should be a walk in the park for McEntee. And yet some tricky questions await her as she begins the process of bringing the controversial legislation through to conclusion.
The Bill has attracted considerable criticism from a wide variety of sources, including Elon Musk, Donald Trump jnr, People Before Profit, Aontú, a variety of independent TDs and various commentators. In particular, opponents have targeted the Bills’ provisions which would criminalise hate speech even when it is contained in material on an individual’s computer, and not actually disseminated. Paul Murphy, the People Before Profit TD, said it would establish what were effectively “thought crimes”.
But McEntee will also face questions during Seanad debates about gender issues in the Bill which may prove even more controversial.
Senator Michael McDowell and his colleague Ronan Mullen wrote to McEntee’s (temporary) predecessor Simon Harris several weeks ago about an aspect of the Bill which had received little or no attention previously.
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McDowell sought urgent clarification on the definition of gender in the Bill before it comes to the floor of the Seanad.
The Bill extends protection to people with “protected characteristics” – including race, colour, nationality, religion, national or ethnic origin (including membership of the Traveller community), descent, gender (including gender expression or identity), sex characteristics, sexual orientation and disability.
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But Mr McDowell has questioned the definition of gender in the Bill, querying why it has been expanded from the definitions included in previous legislation – including legislation that allowed people to legally change their gender.
The definition of gender in the Bill is: “‘Gender’ means 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 ...”
Mr McDowell queried why this definition is different from the Gender Recognition Act, which he says has a binary definition of gender in that it “provides that a gender recognition certificate has effect that if the preferred gender is the male gender, the person’s sex becomes that of a man, and if the female gender, the person’s sex becomes that of a woman”.
In his letter, Mr McDowell said he has “great difficulty” in understanding “what is intended by the term ‘transgender’ and the phrase ‘a gender other than those of male and female’ “.
“Since one of the purposes of the Bill is to expand the concept of protected characteristics ... it seems to me to be important that members of the Seanad including myself should understand the meaning of the phrases ‘transgender’ and ‘a gender other than those of male and female’,” he said.
“The purpose of this letter is, in advance of the second stage debate in the Seanad, to obtain absolute clarity as to what you as proposer of the Bill intend these terms to mean. In particular, I must ask the following questions: a) Is transgender a gender for the purposes of Irish law? And b) Can you specify what is meant, in addition to transgender, by ‘any gender other than those of male and female’?”
Independent Senator Ronan Mullen took a more confrontational line, accusing the Government of “smuggling a radical new definition of gender into an already controversial hate speech law”.
But neither man has received a reply to their letters, and a spokesman for the Minister was unable to say if she would address the issue in her speech in the Seanad this evening.
