The Equality Authority launched their detailed observations on the Gender Recognition Bill in Dublin today (Thursday August 7th 2014). The Authority which has been to the forefront of asserting transgender rights under equality legislation has produced a number of earlier reports and has made submissions to Oireachtas Committees on bringing forward progressive legislation to vindicate the rights won by Dr Lydia Foy in her landmark case over six years ago. “We would encourage that this process of engagement and listening continues, in order to address the relatively small number, but nonetheless crucial matters, that if correctly resolved in the final legislation, will result in the type of recognition which will benchmark Ireland as an inclusive, respectful society for transgender people” said betty Purcell, Acting Chair of the Irish Human Rights and Equality Commission (designate) who launched the Report.
“Today’s document will be one of the last published in the name of the Authority as the Human Rights Commission made a separate submission on the Bill previously. The Equality Authority has a remit in preventing discrimination and vindicating rights. People who identify as, or are imputed as, transgender and who are intersex typically experience high levels of discrimination. Additionally, research has highlighted a high suicide rate and high levels of harassment of and violence towards transgender people in public places. Particular difficulties also arise in accessing employment, healthcare and leisure facilities. Too many transgender people live in poverty due to increased difficulties in accessing the labour market. The progression of this Bill is vital to addressing many of these issues and we look forward to a speedy endorsement by the Oireachtas to enable trans people in Ireland to assert their identity, respectfully and legally” she continued.
“The Authority’s long standing commitment to equal marriage for consenting adults envisaged such situations as are now arising in this Bill. The requirement in the Heads of Bill that applicants for legal gender recognition be single, is neither necessary nor desirable. In particular, the imposition of this requirement will pose significant hardship on families where a spouse, or civil partner, wishes to gain legal recognition of a preferred gender. There is clearly an urgent legal imperative for such reform, as it is six years since the High Court concluded in Foy v An tÁrd-Chláraitheoir, Ireland and the Attorney General (No. 2) that Ireland was in breach of its commitments under the European Convention on Human Rights. This matter was highlighted in the report which we submitted to the United Nations Human Rights Committee for the purpose of Ireland’s fourth periodic report under the International Covenant on Civil and Political Rights, and was raised again by the Human Rights Committee at the hearing which we attended in Geneva last month. We are mindful too of the commitments of the Good Friday Agreement on equivalence of rights. Gender recognition has been available in the United Kingdom since 2004, a factor that places Ireland in breach of its commitment to ensure that human rights protections in the State are at least equivalent to protections available to people in Northern Ireland” continued Ms Purcell.
“There is further uncertainty arising from the recent Grand Chamber Judgement in the Hamalainen vs Finland case, which upheld the requirement for married transgender people to convert to civil partnership, in order to assert their right to their proper gender, in the absence of marriage equality. This ruling can not be simply applied to the Irish situation as the circumstances in relation to accessing divorce in Finland and in relation to civil partnership have significant structural differences that would seriously alter such an action in Ireland. In order to divorce in Ireland, couples must be living apart for four of the previous five years and have no prospect of reconciliation. The Irish Bill essentially asks for a transgender person in a happy marriage to misrepresent that marriage and its validity in official documents, in order to acquire their correct gender. It is a different requirement than that considered by the judgement in the Finnish case. Ongoing developments in the referendum on marriage equality and any subsequent legislation arising from its passing, could eliminate the need for this new legislative concept of ‘forced divorce’ for any married couple where one partner wishes to acquire their proper gender” she added.
“In its 2010 submission to the Gender Recognition Advisory Group, the Authority noted that such an approach was not in fact legally necessary. The submission noted that the legal validity of a marriage is determined solely by reference to factors (including the status of the parties) present at the date of the marriage. It is the gender of each party at the date of the marriage that counts in determining the validity of the marriage. Thus, if the spouses were legally male and female respectively on the date of their marriage, the marriage in law remains a heterosexual marriage, even if one of the parties subsequently transitions to a preferred gender. Prospective legal recognition of a preferred gender would not change the essential fact that the marriage – judged by reference to the factors present at the time of the marriage – is still in law a heterosexual marriage. As such, the concern that gender recognition would convert a heterosexual marriage into a marriage between parties of the same sex is not legally founded” continued Ms Purcell.
“Many transgender people have been supported on their journey by their spouse. The Bill requires that at the conclusion of that journey, the supportive spouse is then to be presented as the only impediment remaining to the proper gender recognition of the other. This is harsh, unfair and of serious concern. This essentially involves a ‘bartering of rights between the couple’, which sets an unnecessary and worrying precedent. Where a couple who are married or civilly partnered wishes to remain together during and after the transition of a spouse, it may prove impossible for the transgender spouse to truthfully divorce to meet the proposed requirement that applicants be single. The concept of ‘forced divorce’ has serious human rights concerns and we state in this paper that we believe is legally unnecessary. In light of the Finnish decision, this will undoubtedly require further examination, in particular as to the ease in which matters can be arrived at in Finland and the considerable obstacles in obtaining a ‘truthful divorce’ in Ireland including the long time delays for divorce here that will further delay the acquiring of a proper gender. We argue that applicants should be permitted to apply for gender recognition regardless of civil status or marital status. The dissolution or annulment of a marriage or civil partnership should not be required as a pre-condition to legal recognition” concluded Ms Purcell.
ENDS
For further information please contact: Brian Merriman, Equality Authority, Tel: 01 4173368 Mob: 087 9608658.