Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College 24th October 2013
tanya.nimhuirthile@gcd.ie / 086 889 3878
Remarks on General Scheme of the Gender Recognition Bill 2013
for the Joint OIreachtas Committee on Education and Social Protection
24th October 2013
Thank you for the invitation to speak with you in relation to this most important legislation.
At the outset, I would like to re-iterate that Ireland is obliged to do something to recognise
the preferred gender identity of trans people following the judgment of the High Court in
Foy v An tArd Chlaraitheoir (No 2) (2007).1 Consequently, this morning I offer some feedback
on the legislative scheme proposed by the Government this summer. I am conscious that I
have limited time to address you and so am happy to tease any of these points out in more
depth afterwards.
The importance of Legal Recognition
I would like to begin by highlighting the importance of legal recognition. The law maintains
differences in treatment between men and women. For example, under our Constitution
mothers who work within the home are afforded special protection while fathers who do
likewise are not.2 To be recognisable by the law is essential in order to fully participate in
society. By way of illustration, I would like to draw your attention to a case which came
before the Australian High Court in 1979. In the marriage of C and D (Falsely called C)
concerned the validity of a marriage between a biologically born woman and her husband
who was born with an intersex condition.3 In other words, he was born with a body which
combined both male and female biological traits. In Australia, as here in Ireland, marriage is
defined as the union of one and one woman.4 The Australian Court held that as Mr C was
neither man nor woman, he was incapable of marrying anyone. Thus the importance of legal
recognition of one’s preferred gender identity is obvious. Where the law cannot recognise a
person’s preferred gender that person may be excluded from the exercise of normal legal
rights he might otherwise expect to enjoy.
Current Test for Determination of Legal Gender
At present, the legal gender of a person is determined in line with the ruling of the English
High Court in Corbett v Corbett (otherwise Ashley).5 Here it was held that the congruence of
1
Foy v An tArd Chlaraitheoir (No 2) [2007] IEHC 470.
Article 41.2.1°.
3
In the Marriage of C. & D. (falsely called C.) , (1979) F.L.C. 90 -636 (Australia)
4
Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130.
5
Corbett v Corbett (Otherwise Ashley) [1971] 2 All ER 33.
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Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College 24th October 2013
tanya.nimhuirthile@gcd.ie / 086 889 3878
the chromosomes, gonads and genitals at birth was determinative of the gender of an
individual. There are two aspects of this test: the biological fact of congruence and the
temporal aspect of the birth moment as conclusive.
This legislation proposes to enable those who either lack the congruence at birth, or whose
self identity does not develop in line with their biological bodies to register an alteration in
their legal gender and be recognised legally as being of that gender thenceforth.
This is an important development and is to be welcomed.
That said, we are here today to discuss the proposals and to consider how to improve upon
them. With that in mind, there are three constructive criticisms I would offer. These relate
to the age limits, the supporting medical statements requirement and the requirement that
applicants be single.
Age Limits
It is proposed that access to the rights contained in the legislation be confined to those who
are 18 years of age or older. This criterion does not respect the dignity of young trans or
intersex people. From the perspective of the young trans person, it is important to note that
currently such a person can, independently, give legal consent to undergo gender
reassignment procedures under s23 of the Non Fatal Offences Against the Person Act, 1997.
To grant young trans people the authority to decide to alter permanently their bodies in this
way while refusing to recognise legally the result of that alteration is inconsistent from a
policy perspective. Furthermore, it may be offensive to the newly inserted Article 42A of the
Constitution on children’s rights for failing to respect the right of children to form their own
views and to have these views respected in line with their age and maturity. Young trans
people can either make these life changing decisions or they cannot. Where such decisions
are supported by parents or guardians to continue to refuse recognition is even less sound
from a legal perspective and may breach Article 42 of the Constitution.6
This age constraint is particularly restrictive of the rights of intersex children. As defined
earlier, an intersex person is one whose body combines male and female biological traits.
Intersex can manifest at various stages throughout a person’s life: birth, childhood, puberty,
6
North Western Health Board v HW and CW [2001] 3 IR 622.
2
Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College 24th October 2013
tanya.nimhuirthile@gcd.ie / 086 889 3878
in adulthood, or be discovered on autopsy. At present, all births must be registered no later
than three months after the birth taking place. 7 Where the existence of the intersex
condition does not manifest until after this deadline, children may be stuck with a birth
certificate which does not reflect their physical reality or the gender identity which they
subsequently develop. Such a situation was considered recently by the High Court in S v An
Bord Uchtála (2009).8 The case involved a child with an intersex condition who was the
subject of a foreign adoption order. The birth certificate and subsequent adoption
certificate noted that the child was female. However, upon closer medical examination once
the child was brought to Ireland, it was found that the specific intersex condition the child
had was more nuanced than originally thought and thus this child was more likely to identify
as a boy. His parents sought to have the adoption certificate amended to reflect this reality
so that he could participate fully in society as a boy and attend the boys’ school. The
Adoption Board refused the application as it considered granting such a request was beyond
its authority. On judicial review, the High Court found in favour of the boy’s parents and
ordered the alteration of the certificate. Unfortunately, as this was an ex temp judgment of
the court, it is of limited precedential value and other families are not guaranteed as of right
that they could secure new documentation for their intersex children. By refusing to permit
those under 18, or their parents or guardians on their behalf, to make an application for
legal recognition in a gender other than that recorded on the birth certificate this proposed
legislation continues to discriminate against intersex children. Thus, I recommend that the
scheme be extended to permit applications by, or on behalf of, trans and intersex children
and young people.
Requirement for Supporting Medical Statements
On December 5th last year, I appeared before this committee to advise you on this very
matter in the context of the recommendations contained in the Report of the Gender
Recognition Advisory Group. 9 On that occasion I criticised the recommendation that
applicants would need evidence of a diagnosis of Gender Identity Disorder in order to
successfully ground an application. I noted that such a requirement was contrary to the
most recent statements on international human rights law on this issue. In particular,
Former Council of Europe Commissioner for Human Rights Thomas Hammarberg
recommended that access to legal rights such as gender recognition be de-coupled from
7
Civil Registration Act 2004, s19(1).
S v An Bord Uchtála Unreported High Court, 4 December 2009, Sheehan J.
9
Report of the Gender Recognition Advisory Group (Dublin: Department of Social Protection, 2011)
(hereinafter ‘GRAG Report’). available online at http://www.welfare.ie/en/Pages/Report-of-the-GenderRecognition-Advisory-Group.aspx .
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Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College 24th October 2013
tanya.nimhuirthile@gcd.ie / 086 889 3878
medical interventions.10 Effectively, recognition ought depend upon diagnosis or other
medical treatment pathways.
From that perspective, I welcome the fact that there is no overt diagnostic criterion within
the proposed legislative scheme under consideration. However, that is not to say that the
proposed legislation depathologises access to legal gender recognition and follows
Hammarberg’s recommendation by dispensing with the need for diagnosis. Rather Head 6
of the proposed legislation requires that an applicant produce a ‘statement from his/her
primary treating physician, in a form to be prescribed by the Minister, which confirms that
the person has transitioned / is transitioning to their acquired gender and that he/she [i.e.
the treating physician] is satisfied that the person fully understands the consequences of
his/her decision to live permanently in the acquired gender’. In essence, applicants need a
letter from a doctor confirming they are being, or have been, treated for a medical
condition and understand the consequences of an application under this legislation. This is
diagnosis in disguise. Yet it goes further than merely confirming diagnosis, as the doctor is
also required to state that applicants have sufficient mental capacity to fully appreciate the
consequences of an application. In this way, the proposed legislation not only maintains the
diagnostic criterion but also obliquely reinforces the prejudice that trans people suffer from
a mental disorder. This at a time when the medical community is seriously considering
removing trans diagnosis from the list of mental disorders. Consequently this requirement is
considerably outmoded. I recommend that it be dispensed with in its entirety.
Requirement to be Single
The final point I would like to raise for consideration is the criterion that applicants be
single. Effectively this requires that any potential applicant who is married or in a civil
partnership must divorce or dissolve that partnership prior to making an application. Such a
requirement seems to be contrary to the special protection afforded the marital family
under Article 41 of the Constitution. Furthermore, it may not be possible for happily married
potential applicants to dissolve their marriages. Under Article 41.3.1(ii) of the Constitution
and section 5(1)(b) of the Family Law (Divorce) Act 1996 a divorce will not be granted where
there is a reasonable prospect of reconciliation between the spouses. This almost
impossibility is further reinforced by the requirement to live apart for four of the five years
prior to instituting divorce proceedings.11 To meet the living apart requirement successfully,
spouses must live separate lives where at least one of the parties has resolved that the
10
Hammarberg, T. Human Rights and Gender Identity CommDH/IssuePaper(2009)2, Strasbourg, July 29, 2009,
available online at https://wcd.coe.int/ViewDoc.jsp?id=1476365 .
11
Article 41.3.1(i) of the Constitutionand section 5(1)(a) of the Family Law (Divorce) Act 1996
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Dr. Tanya Ní Mhuirthile, Senior Lecturer, Law Faculty, Griffith College 24th October 2013
tanya.nimhuirthile@gcd.ie / 086 889 3878
relationship is no more.12 Proving this living apart is even more difficult where would be
divorcees continue to inhabit the same house. In these circumstances an application for
divorce may not be successful. Nor is annulling the marriage a desirable option as this would
strip the parties and any children of the marriage of the legal rights they have as members
of a constitutionally protected family and will result in the denial of reliefs, such as
maintenance orders, which are only available to separated or former spouses.
To dispense with the requirement to be single will allow married applicants to be legally
recognised in their preferred gender. It is important to note that where a validly contracted
marriage survives the transition process it does not transform into a same sex marriage
upon the legal recognition of the preferred gender of the trans spouse. According to the law
on nullity, the defining moment when assessing the validity or otherwise of the marriage is
the moment at which the marriage occurs.13 No subsequent event can render a valid
marriage invalid.14 Thus where the spouses presented, and were legally recognised, as man
and woman at the moment of marriage that marriage continues to be valid notwithstanding
the fact that one spouse thereto subsequently is recognised as being of the preferred legal
gender. Therefore, while trans marriages may appear on the surface to be such they are not in fact
same-sex marriages. Consequently, I recommend dispensing with the requirement to be single.
Thank you.
12
13
14
M. McA v X. McA [2000] 2 ILRM 48.
Napier v Napier [1915] Probate 184.
AB v NC (2006) IEHC 127.
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