Irish law needs urgent reform to ensure rights for transgendered people
IHRC calls on Government to convene working group to examine law reform on
transgendered rights
The Irish Human Rights Commission (IHRC) today recommended to the Government measures the State should take to strengthen, protect and uphold the human rights of transgendered people under Irish law, in line with the State’s obligations under Article 8 (right to respect for private life) and Article 12 (right to marry) of the European Convention on Human Rights (ECHR).
Dr Maurice Manning, President of the IHRC, stated "the rights of transgendered people are gradually being recognised in Irish law, for example, the Passports Act 2008 saw the first statutory recognition of transgendered people in providing for a person’s right to apply to have a passport issued in their new gender."
Dr Manning continued "However, there is still much to do. The European Court of Human Rights in a succession of cases against the United Kingdom, Germany and Lithuania, has found that laws restricting or preventing transgendered people from obtaining birth certificates or marrying in their new gender breach human rights in failing to recognise the person’s new gender."
Commenting on the precedent of the United Kingdom, Dr Manning stated: "Prior to the adoption of the Gender Recognition Act in 2004 by the British Government, it convened an Interdepartmental Working Group on Transsexual Persons to consider the need for legislation and what form that legislation should take. This approach has much to commend itself in the Irish context. Therefore, we are calling on the Irish Government to convene a Working Group to examine the question of law reform in this area."
In addition to the judgments of the European Court of Human Rights in these cases, the IHRC is drawing the Government’s attention to the Judgments of the European Court of Justice and the recent Concluding Observations of the United Nations Human Rights Committee on Ireland’s compliance with the International Covenant on Civil and Political Rights.
IHRC Chief Executive, Mr Éamonn Mac Aodha, stated: "The findings of the European Court of Human Rights, the European Court of Justice and the UN Human Rights Committee have led the IHRC to conclude that transgender rights is an issue where Irish law needs urgent reform".
Mr Mac Aodha continued, "there is clear evidence of a continuing international trend in favour of legal recognition of the new sexual identity of transgendered persons. Of thirty-seven countries surveyed by the European Court of Human Rights in 2002, only four states did not permit a change to be made to a person’s birth certificate to reflect the re-assigned sex of that person."[1]
In its submission to Government, the IHRC concludes that Irish law does not conform to international human rights standards’ relating to the rights of transgendered people and to that end recommends:
1) That the Government take steps to remedy the current lack of protection of the rights of transgendered people under Articles 8 and 12 of the ECHR through amending legislation.
2) That the Government convene a Working Group on Transgendered Persons to consider the implications of recent ECHR jurisprudence, the UK’s Gender Recognition Act 2004 and the case for law reform. There should be ex officio membership of that Working Group which should include representation from the IHRC, the Equality Authority, the transgendered community, civil society, the legal and other appropriate professions.
3) That, given the protections currently available to transgendered people in Northern Ireland, the issue of equivalence of rights protections as provided for in the Belfast Agreement should be considered in the context of proposed law reform.
4) That in drafting amending legislation, the Government should consider referring the draft legislation to the IHRC pursuant to its statutory function.
ENDS
A spokesperson is available for comment
For further information please contact:
Fidelma Joyce, IHRC, Tel: 01 8589601, Mob: 087 783 4939
Notes to Editors
As Ireland’s national human rights institution, the IHRC has a statutory remit to endeavour to ensure that the human rights of all persons in the State are fully realised and protected, in law, in policy, and in practice. Its functions include keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights, and making such recommendations to the Government as it deems appropriate in relation to the measures which the IHRC considers should be taken to strengthen, protect and uphold human rights in the State under Section 8(d) of the Human Rights Commission Act 2000 including with reference to the State’s obligations under the ECHR.
In October 2007, the Irish High Court in Foy v An t-Ard Chláraitheoir, Ireland and the Attorney General issued a declaration of incompatibility under Section 5 of the European Convention on Human Rights Act 2003, stating that the relevant Irish legislation was incompatible with the ECHR. The case is currently the subject of an appeal to the Supreme Court. The IHRC was put on notice of the case under Section 6(1) of the 2003 Act. In the IHRC’s view, there would appear to be no impediment to the Government considering the issue of the legal recognition of transgendered persons’ rights along similar lines to that considered by the UK Government in the period 1999-2004 as set out in its submission to Government.
The European Court of Human Rights has found in a succession of cases that laws restricting/ preventing transgendered persons from obtaining birth certificates or marrying in their new gender are in breach of Article 8 (the right to respect for private life) and Article 12 (the right to marry) of the European Convention on Human Rights – see Goodwin v. The United Kingdom, Judgment of 11 July 2002, (2002) 35 EHRR 18; I. v. The United Kingdom, Judgment of 11 July 2002, (2002) 2 FLR 518; Van Kück v. Germany, Judgment of 12 June 2003, (2003) 37 EHRR 51; Grant v. The United Kingdom, Judgment of 23 May 2006 and L. v. Lithuania, Judgment of 11 September 2007.
In its submission to Government, the IHRC has also pointed to recent jurisprudence of the European Court of Justice which agreed with the approach taken by the European Court of Human Rights – see K.B. v National Health Service Pension Agency Case C-117/01 [2004] ECR I-541, judgment delivered on 7 January 2004. The IHRC also drew attention to Concluding Observation No. 8 of the UN Human Rights Committee consideration of Ireland’s Third Periodic Report (July 2008) where the Committee stated: "…The State party should also recognize the right of transgender persons to a change of gender by permitting the issuance of new birth certificates."
In 2004, the UK amended its legislation in this area with the adoption of the Gender Recognition Act 2004, which gave effect to the 2002 European Court of Human Rights Judgments in Goodwin v. The United Kingdom and I. v. The United Kingdom. As explained in the Explanatory Note to the UK Gender Recognition Act, 2004, "[t]he result of [the House of Lords judgment in Bellinger (FC) (Appellant) v Bellinger [2003] UKHL 31 (10 April 2003)] was that legislation was needed to enable transsexual people to marry in their new gender."[2]
Under the Belfast Agreement, the Irish Government committed itself to further strengthen the protection of human rights in the State and to "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland". Given the fact that the rights of transgendered persons have received a level of protection under the UK Gender Recognition Act 2004, the issue of equivalence of rights protections in this State also arises.
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[1] The countries were Albania, Andorra, Ireland and the United Kingdom. See joint partly dissenting opinion in Sheffield and Horsham v. The United Kingdom, Judgment of 30 July 1988, (1999) 27 EHRR 163, cited in I. v. The United Kingdom, Judgment of 11 July 2002, (2002) 2 FLR 518, paras 64-65; Goodwin v. The United Kingdom, Judgment of 11 July 2002, (2002) 35 EHRR 18, paras 55-56. The Court also noted an international trend towards legal recognition of the rights of transgendered persons outside Europe, e.g. in Singapore, Israel, Australia, New Zealand, Canada, South Africa and almost all states in the United States. Courts in Australia and New Zealand were also moving away at that time from the "biological birth" view of gender and were taking the view that the determination of one’s gender, in the context of a transgendered person wishing to marry, should depend on a multitude of factors to be assessed at the time of the marriage.
[2] See Explanatory Note, paragraph 7.