EXECUTIVE SUMMARY
SUBMISSION 1
Broden Giambrone
TENI Director
Transgender (trans) people are among the most vulnerable members of Irish society
and experience high levels of stigmatisation and marginalisation. Research shows
that trans people experience some of the highest rates of suicidality1, regular
harassment and violence2 and systemic discrimination3.
In Ireland, a major contributing factor to the marginalisation of trans people is the
lack of State recognition of trans identities. Legal gender recognition would provide a
process for changing the gender marker on the applicant’s birth certificate. This is
important as birth certificates are a foundational identity document and are often
requested for official purposes (such as accessing social welfare, obtaining a Personal
Public Service Number to work and getting married). In certain cases, individuals
may be able to change the gender marker on documents like passports and driving
licenses. This can result in trans people having inconsistent official identification
documentation. That is, a person may be recognised as one gender on certain
documents and another gender on their birth certificate. This puts individuals at risk
of being ‘outed’ when they apply for a job, a new passport or entry to education. It
can also lead to a denial of services and restrict an individual’s ability to travel
domestically and internationally.
Ireland is one of the few remaining countries in the European Union that does not
allow for legal recognition of trans people. This is despite a High Court ruling in 2007
that found the State to be in breach of its positive obligations under Article 8 of the
European Convention on Human Rights (ECHR) in failing to recognise Dr. Lydia Foy in
her female gender and provide her with a new birth certificate. This was the first
declaration of incompatibility to be made under the ECHR Act.
In May 2010, the Irish Government set up the Gender Recognition Advisory Group
(GRAG), an inter-departmental working group “to advise the Minister for Social
Protection on the legislation required to provide for legal recognition by the State of
the acquired gender of transsexuals”. Through consultation and research, this group
outlined a legal pathway and qualification criteria for legal gender recognition. In
Transgender Equality Network Ireland (2012) “Trans Mental Health and Well-being: Self-harm and Suicide”
Press for Change (2009) “Transphobic Hate Crime in the European Union”.
3
Press for Change (2007) “Engendered Penalties: Transgender and Transsexual People’s Experiences of
Inequality and Discrimination”
1
2
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
June 2011, the report was accepted by the Irish Cabinet and in July 2011 it was
publicly launched by the Minister for Social Protection.
The proposed qualification criteria for the Irish legislation borrowed heavily from the
UK Gender Recognition Act, 2004. The criteria include a requirement that applicants
be 18 years or older, a formal diagnosis of Gender Identity Disorder (GID) plus
relevant medical evidence, and the requirement that an individual not be in an
existing valid marriage or civil partnership. Applicants would also be required to
apply to a three-person independent panel.
The proposed qualification criteria for gender recognition are highly restrictive and
clearly infringe on an individual’s right to privacy, personal dignity and family life.
The process is discriminatory and will cause serious hardship to individuals and their
families.
One of the proposed requirements is that an individual will need either a formal
diagnosis of Gender Identity Disorder (GID) or have undergone gender reassignment
surgery. This will be exclusionary for individuals who either cannot or choose not to
undergo medical interventions. A diagnosis of GID also excludes intersex people, a
term used to describe people whose reproductive or sexual anatomy doesn’t fit the
typical definitions of female or male, many of whom who would benefit enormously
from being able to access gender recognition legislation. This is further complicated
by the fact that there are less than a handful of medical professionals with the
knowledge or expertise to provide a diagnosis4.
The second major difficulty in the proposed legislation is the requirement to exclude
people in existing marriages or civil partnerships. The GRAG based their
recommendations on the UK system, which provides an “informal fast track
process”: married couples can divorce and get a civil partnership in 48 hours. 5,6 Noone has to move out of the family home, and the children do not need to know that
their family was legally broken apart, however temporarily. In an Irish context, the
process of separating and divorcing would be devastating to a family.
It is vital that the legislation that is introduced is firmly grounded in a rights-based
model that is inclusive, progressive and marriage-friendly. Ireland need only look to
Argentina to see the best practice model for gender recognition legislation that was
passed in May. In Argentine, the criteria for changing your gender is simplified and
relies on informed consent. There is no need for individuals to prove they have had
surgical procedures, hormonal therapy or other psychological or medical treatment
such as a diagnosis of mental illness. This law clearly separates a legal right from
medical interventions. Ireland has the potential to be the first country in Europe to
introduce legislation that truly respects the rights and privacy of transgender people.
We must not miss this opportunity.
Gender Recognition Advisory Group (2010) “Report of the Gender Recognition Advisory group”, p.10.
FLAC, Recognising transgender persons in Ireland: A response to the Recommendations of the Gender Recognition
Advisory Group for a Gender Recognition Act (Sept, 2011), p.7. Available: http://www.flac.ie/publications/recognisingtransgender-persons-in-ireland/
6 Gender Recognition Advisory Group (GRAG) Report, p.12. Available:
http://www.welfare.ie/EN/Policy/Legislation/Pages/gragreportjune11.aspx;
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
4
5
SUBMISSION 2
V. Mullen
Families Against Forced Divorce
I am proud to be Irish.
As a nation, we have come a very long way since the days of comely maidens
dancing at the crossroads. Single Mums no longer need die alone or be hidden away
in punishment for their so called sins. We have seen the introduction of Equal rights
for women; the legalization of contraception, divorce and even homosexuality. Yes,
we have achieved much and many of us now look back in amazement at how
backwards we were not so very long ago.
But for those of you who miss those “good ole days” of inequality for all, you can
take some comfort. You still have the transgender community to play with. It would
appear that it is still okay to discriminate against us; to ignore our rights; to ridicule
us with your jokes and sick advertisements and it now seems to even demand an end
to our marriages.
Less than twenty years ago, Divorce was still illegal in Ireland. But today, I and
people like me face the possibility of being forced to divorce to access our right of
legal recognition.
The legislation currently being prepared is based on the report of the Gender
Recognition Advisory Group. Imagine the furor that would erupt if Government
formed a group to report on how women might access their human rights – but –
only appointed men to that group?
Yet, no member of the GRAG was transgender, or even experienced in transgender
issues. And our absence is evident. Among many of its ill thought out
recommendations, their report clearly states that people in an existing valid
marriage be excluded.
They demand that we must first divorce our husbands and wives before the State
would recognise who we actually are. This is not some nightmare scenario from the
Nazi 1930s but might be our life in Ireland in the 21st Century.
Legal recognition should not be contingent on the destruction of our marriages and
families. We remain one of the last of the 27 EU Nations which still does not allow
Gender Recognition for transgender people. Without such recognition, difficulties
can arise for us in our jobs, pensions, insurance, foreign travel. Even our right to
participate in most sporting activities may be prohibited. For example, many
sporting organisations in Ireland follow the International Olympic Committee
guidelines. This means that to play golf, I must be legally recognised in Ireland as a
woman.
Marriages where one spouse is transgender are lucky to survive. Yet, some do. In
my own case we were not quite as fortunate. Yet, while my wife and I live apart, we
remain committed to our children and work daily together in our family business.
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
Neither of us wishes to seek a legal separation, let alone a divorce. I find it deeply
offensive that I should be presented with such a choice. And if I did choose legal
recognition over my wife, what does she get in return for the ending of her
marriage? How have her rights been affected by the introduction of such perverse
legislation?
Government will most likely argue that it has an obligation under Article 41(1) of our
Constitution to defend and protect the family. We agree. They may argue that this
involves the prohibition of same sex marriages. We don’t agree with that but in any
event, we did not contract same sex marriages!
My marriage is fully valid under Irish Law, as at the time of getting married we were
physically and legally opposite genders. We have three fantastic children. But due
to a worsening of my medical condition over the years and acting on medical advice,
I underwent full gender reassignment surgery. I am now physically female, whether
my Country chooses to acknowledge this fact or not.
So I ask you, what of my family? Does Government have no obligations to us? Is my
family not also entitled to the full protection of the Irish Constitution?
Why should anyone be forced to choose between family and basic human rights?
We put forth that the requirement to divorce is itself unconstitutional as the State
fails to meet its own obligations by making such a demand of a citizen.
Indeed, divorce may not even be possible in our circumstances as we may be unable
to satisfy the courts that there has been an irreconcilable breakdown of our
marriages, a key requirement under Irish Law for a divorce.
And if we cannot qualify for divorce, then we cannot access our right of legal
recognition. Are we not then right back to where Dr. Lydia Foy began all those years
ago with the State’s continued refusal to grant us gender recognition meaning it
remains in contravention of the European Convention on Human Rights. This is then
all a complete waste of your time and mine.
In times of deep economic hardship, the chance for this Government to do
something good at no cost is an opportunity that should be seized. At a time when
Ireland has just been elected to the UN Human Rights Council, leading Europe in
progressive gender recognition legislation is surely an easy win.
If the Government chooses to listen to our voices and see the inhumanity inherent in
forced divorce in order for us to achieve gender recognition, there is a very real
opportunity to put Ireland at the forefront of progressive legislation which
empowers all its citizens. We pray that Ireland will follow the recent lead of
Argentina and introduce modern, fair minded and equality driven legislation which
we as a nation can be proud of.
We and our families live in hope.
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
SUBMISSION 3
Darrin Matthews
Cork Trans Group
I am a transgender man. I came out when I was 17. I told my family and friends. That
was my choice. When I fill out a legal document and it asks for my birth name and
PPS number I lose that choice. I must add my legal name change with my birth
certificate every time I fill out a grant application or forms from the government. I
hope every time this happens that the person reading these papers and making a
decision isn’t going to discriminate against me because of my transgender status. I
had a woman from the Disability Allowance Office ring me and ask why my name
had changed from a female name to a male name and when I told her it was because
I was transgender she laughed at me. When I get asked for my passport when I go
out I sometimes get turned away because my gender marker says “F” and my name
and birth name are both printed. Everybody has a right to a private life. I would like
to have my right recognized. Issuing new birth certificates and can easily do this and
prevent embarrassment, harassment and potentially dangerous situations.
My experience of being transgender doesn’t just affect me, it also affects my family. I
have an amazingly supportive and loving family. My mother put herself into almost
12,000 euro of debt to send me to private school because I was bullied for 2 years in
my State School. My mother took out a loan to send me to school where I could be
called Darrin, not wear the girl’s uniform and be happy. Every member of staff and
every student called me Darrin instead of derogatory and cruel names.
I have many friends who are straight, gay and transgender. In this day and age if a
gay friend of mine told me they had got their official psychiatric diagnosis of
“homosexual” I would be shocked and appalled. 19 years ago homosexuality was
decriminalized and people now cannot imagine a time when it was illegal. Most
people don’t know transgender people must be diagnosed with a psychiatric illness
to access treatment in this country because this is such an inconceivable and
ridiculous notion and is discriminatory in its nature. I do not feel that because I was
born in the wrong body that that automatically means I have a mental illness. There
is still stigmatization attached to having a mental health issue in this country and to
force a psychiatric condition on another human being can have detrimental effects
on their self-image and self-esteem. When a couple applies for a civil partnership
they are not asked for their “gay diagnosis” to prove their homosexuality. I had to
prove to many people that I was happier as the man I should always have been, my
mother, my siblings, my friends. But I should not have to prove anything to a
complete stranger and seek their acceptance. I do not need to prove that I am “trans
enough” to anyone.
My mother once asked if I was sure. If was really sure that this is what I wanted. I
told her there was no way I could go back and be happy. Her reply was “Well then
we can only go forward my son”. I always knew transitioning would never be easy
but please don’t make it any harder than it already is. I am not looking for special
treatment. All I want is to be treated as an equal. To be treated with as much respect
and dignity as everybody else. Nothing more. Nothing less. Thank you.
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
SUBMISSION 4
Dr. Tanya Ní Mhuirthile
Senior Lecturer in the Law Faculty at Griffith College Dublin
Hello. I have been asked to address the legal aspects of the introduction of gender
recognition legislation. I would like to reiterate at the outset that Ireland is obliged
to do something to recognise the preferred gender identity of trans people as a
result of the decision of the High Court in Foy v An tArd Chlaraitheoir No 2 (2007). It
was the recommendation of the Gender Recognition Advisory Group in their report
that legislation would be the most effective mechanism by which to achieve this, and
I would like to focus on some of the legal difficulties arising from the scheme as
proposed by the GRAG in their report. I am conscious that I have limited time to talk
to you and so am happy to tease any of these points out in more depth afterwards.
The GRAG, in their report, outlined 6 qualification criteria which must be met for an
application for gender recognition to be successful. These are 1)Residency or Irish
birth registration; 2) Minimum age of 18 years; 3) Persons in an existing marriage or
civil partnership are excluded from the scheme; 4) evidence of a clear and settled
intention to live permanently in the recognised gender; 5) a minimum 2 years living
full time in the role and 6) a formal diagnosis of Gender Identity Disorder (GID) plus
relevant supporting medical evidence, or medical evidence that the applicant has
undergone gender reassignment surgery, or evidence of the recognition of changed
gender in another jurisdiction.
Two of these criteria, I would like to critique in depth, but I would also like to offer a
brief comment on the other four criteria first. Regarding the residency/birth
registration criterion, this is largely unproblematic except in the instance of asylum
seekers whose trans status may well be the cause of their need to seek asylum. The
scheme as proposed does not account for the need to afford recognition in such
circumstances. The minimum age requirement is an oddity seeing as how it is legal
to consent to medical procedures, including treatment for GID at the age of 16
without parental consent and young trans people can access such treatment before
16 with the consent of their parents. To oblige people who undergo transition early
in their life, particularly in the case of intersex children, who may have been assigned
a gender at birth which does not reflect their identity or subsequent bodily
development to live with incorrect identification documentation until 18 is
particularly injurious given we live in a country where the majority of schools are
single sex. Evidence of a clear and settled intention to live permanently in the
recognised gender; is unproblematic other than to probe the question of what kind
of evidence might be required. Will a simple statutory declaration suffice or will an
applicant be required to produce all manner of witnesses attesting to their preferred
gender identity? On the topic of the requirement for a minimum 2 years living full
time in the role one imagines this was introduced to reflect medical practice of
requiring 2 years in role prior to accessing irreversible surgeries, however there are
now moves in the medical field to reduce this waiting time to 1 year (WPATH
Standards of Care, 7th version 2011), and so the legislative framework would be out
of step with best international practice.
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
The most problematic aspects of the proposed scheme are the marriage issue and
the medical issue.
To require married couples to divorce where one party has transitioned subsequent
to the marriage in order for that person to be legally recognised in their preferred
gender identity is, we argue, constitutionally unsound. The Constitution safeguards
the institution of marriage (Art 41.3.1). For divorce to be possible, according to the
Constitution a couple must live apart for 4 of 5 years with no reasonable prospect of
reconciliation. This is not the case where a marriage survives one spouse
transitioning gender. So for the trans spouse to be recognised they would have to
split up their family and perjure themselves in Court in order to obtain a divorce so
the trans spouse could be eligible to make an application under this proposed
legislative scheme. This is particularly invasive on the rights of the non-trans,
supportive spouse and any children of the marriage to remain members of a marital
family. We suggest as an alternative, that the legislation make no mention of
marriage or divorce. We recognise that this could create an apparent anomaly where
post recognition there would be what appears to be a same sex marriage. However
we argue that this is not actually the case. In law the crucial time when assessing the
validity of a marriage is the moment when the marriage is entered into. We see this
time and time again when the question of the validity or nullity of a marriage arises
before the Courts. The practice is to look at the situation of the individual at the time
the marriage was contracted. By analogy, if a person is 78 when it is discovered that
they were underage at the moment of marriage this does not retrospectively
validate the marriage, similarly, if a person subsequently becomes impotent this
does not retrospectively invalidate a consummated marriage. Therefore we argue in
the cases of trans marriages, as the parties presented, and were legally recognised,
as being of opposite sex at the moment of marriage being a validly contracted
opposite sex heterosexual marriage, continues to be legally valid.
The second issue I’d like to discuss is the medical evidence the GRAG report requires.
To recap, this is either a diagnosis of GID, proof of having undergone gender
reassignment surgery or proof of being recognised by another state. Previous
examples of the diagnostic criterion can be seen in the Gender Recognition Act of
2004 from the UK. When this was introduced, it was enormously welcomed as it
dispensed with any need for an applicant to undergo some form of treatment prior
to recognition which represented best international practice at the time. Now eight
years later, this has become the subject of criticism. As the legislation is confined to
the specific diagnosis of GID, it excludes a number of people who might well need
the rights contained therein, for example intersex individuals, those who were born
with bodies combining both male and female biological characteristics. Additionally,
the medical diagnosis itself is currently under review and the nomenclature looks set
to change, which would result in the English legislation becoming obsolete unless
amended. It seems short-sighted to knowingly import such criterion into Irish law.
Additionally the requirement to have undergone gender reassignment surgery is a
throwback to exceedingly outmoded understandings of gender identity which the UK
Act was lauded for abandoning. It is impossible to access such treatment without the
diagnosis and so the requirement for interventions is worryingly retrograde.
Increasingly international human rights discourse recognises the need to
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets
depathologise legal gender recognition, to acknowledge that legal rights should not
be contingent on medical treatment pathways.
The current foremost example of international best practice in this area is the
legislation introduce in Argentina last May which simply enables an individual
seeking recognition, to complete a form outlining their preferred gender identity
without any subsequent evidence or information. Thus the person becomes the final
arbitrator of their legal gender. The simplicity of the Argentinian scheme neatly
avoids all the potential pitfalls of the GRAG’s proposed scheme. It is to this model
which we at TENI suggest that this Oireachtas looks in seeking precedent for how to
approach this matter.
 TENI, The Gate Lodge, The Carmichael Centre for Voluntary Groups, North Brunswick Street, Dublin 7, Ireland
 Phone: (01) 873 3575  Fax: (01) 873 5737  Email: info@teni.ie
 www.teni.ie  facebook.com/TransEquality  twitter.com/TENI_Tweets