Legislation on gender self-identification

In Foy v An t-Ard Chláraitheoir (Registrar General) & Others 2007 the High Court found that the refusal to issue a new birth certificate that reflected the new legal gender of Dr Lydia Foy was a violation of Dr Foy's rights under the European Convention on Human Rights.

In 2010 the Government set up an Advisory Group of government officials to consider a system of legal gender recognition. Reporting in July 2011, the Group recommended a medical model, whereby those wishing to change their legal sex would require one of the following: a formal diagnosis of Gender Identity Disorder (GID) plus relevant supporting medical evidence, or medical evidence that the applicant had undergone gender reassignment surgery, or evidence of the recognition of changed gender in another jurisdiction. In addition

"In order to qualify for recognition of their acquired gender a person would have to be at least 18 years of age, have a clear and settled intention of living in the acquired gender for the rest of their lives and have been living full-time in the new gender during the two years immediately preceding their application."

In December 2014 the Government initiated the Gender Recognition Bill, with applicants required to provide a certificate from their primary medical practitioner stating that in their professional medical opinion based on a medical evaluation the applicant had transitioned or was in the process of transitioning to his or her preferred gender, and that the medical practitioner was satisfied that the applicant fully understood the consequences of his or her decision to live permanently in his or her preferred gender.

The use of the term "international good practice"

In February 2015 Professor Michael O'Flaherty, rapporteur of the Yogyakarta Principles (see article on this website) and now Director of the EU Agency for Fundamental Rights, complained that the Gender Recognition Bill, then before the Oireachtas was "certainly not progressive" adding

“Instead, it draws on the outdated legislation of some states to establish for Ireland a gender recognition framework that is disrespectful to transgender persons, out of line with international good practice and at odds with the country’s international human rights commitments. It will be an avoidable shame if this Bill is adopted without the benefit of significant amendment.”

Citing the Yogyakarta Principles O’Flaherty recommended that:

"The Bill should be amended so that the sovereign choice of the applicant is acknowledged. Doctors need to be removed from the picture, as their involvement suggests that gender is a matter of biology. It is only a small step from that to an insistence that people undertake 'gender reassignment' surgery and treatments before being recognised in a new gender identity. This would violate the legal standard, reflected in the Yogyakarta Principles, that gender identity 'may' but need not 'involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means'. Or as I heard a transgender women put it recently: 'How dare anyone insist that I be castrated?'"

O'Flaherty was also critical of another aspect of the Bill:

"The second problem concerns the requirement that applicants have the intention of living in the preferred gender for the rest of their lives, and the related impossibility of applying for gender recognition more than once. These provisions are at odds with the lived experience of some people, whereby gender is a shifting identity over the course of their lives. As such, the Bill would not only undermine free choice but also lock people into identities in a manner no less abusive than that faced today in the absence of any legislation."

Four months later on 3rd June 2015 the Tánaiste and Minister for Social Protection, Joan Burton announced a complete turnaround by the Government (link no longer working):

It was explained that as it currently stood the Bill provided that a supporting statement was needed from an endocrinologist or psychiatrist that an applicant was transitioning or had transitioned.

Following today's Cabinet decision, however, this will no longer be the case, and amendments will be made to the Bill at Committee Stage to ensure there will be no need for a supporting statement from a medical practitioner.

With the agreement of Cabinet, the application process under the Gender Recognition Bill would, for people aged 18 years or more, be based on a person's self-declaration by way of a statutory declaration. The Tánaiste confirmed

"It remains my firm intention and that of the Government that this much needed civil rights legislation will be passed this year."

Leinster House, Kildare Street, Dublin where the Oireachtas sits

The marriage equality (same-sex marriage) referendum had taken place on May 22nd 2015. Ireland's self-id Gender Recognition Act passed all stages on 15th July 2015.

Senator Katherine Zappone explained in the Seanad on that day that

"As we all recall, the Bill went through Second Stage in the Dáil in early March, and paused for Committee and Remaining Stages to take place after the marriage equality referendum. This was when the extraordinary movement on the self-declaratory model occurred in the Government. The Government has reached the summit of best international practice in this regard and it is a fine achievement."

Senator Ivana Bacik told the Seanad that

"TENI* has pointed out that the group one amendments give us hugely progressive legislation because it means that with the self-determination process, Ireland will become only the fourth country in the world specifically to introduce legislation based on self-determination."

*TENI, Transgender Equality Network Ireland

The Gender Recognition Act was signed into law by the President on July 22nd 2015.

Application form for a Gender Recognition Certificate

The UK brought in its Gender Recognition Act in 2004. A year earlier Lord Nicholls of Birkenhead in the case of Bellinger v Bellinger said that

"The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction."

Legislation went "under the radar" in Ireland

We now know, thanks to a report published last November by legal firm Dentons, the Thomson Reuters Foundation and IGLYO, the International Lesbian, Gay, Bisexual, Transgender, Queer and Intersex (LGBTQI) Youth & Student Organisation across the Council of Europe region entitled "Only Adults? Good Practices in Legal Gender Recognition for Youth" that this was helped by tying the campaign "to more popular reform":

"In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for."

In addition it was reported that

".... many believe that public campaigning has been detrimental to progress, as much of the general public is not well informed about trans issues, and therefore misinterpretation can arise.

In Ireland, activists have directly lobbied individual politicians and tried to keep press coverage to a minimum in order to avoid this issue."

As a consequence the report says

"The legislation went under the radar in Ireland because marriage equality was gaining the most focus. In a way, this was helpful according to the activists, because it meant that they were able to focus on persuading politicians that the change was necessary."

"The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation 'under the radar' by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. Another lesson is that compromise is a double-edged sword. Compromise on legal gender recognition for young trans persons was critical to getting the legislation passed in Ireland, but it might take years to revise the legislation to render it more favourable to trans youth."

Effect of a Gender Recognition Certificate

Once a Gender Recognition Certificate is issued a person’s gender “becomes for all purposes the preferred gender from that day forward. Accordingly, if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman.” Applicants can also have the GRC issued in a different name to that on their original birth certificate and can apply for a new birth certificate.

"Birth certificates that are issued following the issuance of a Gender Recognition Cert retain their original details except for those relating to sex and forename (where applicable) and are similar in appearance to any other birth certificate. There is nothing to indicate that this certificate is a “re-issue”. Like all certificates it will contain the date of issue and original date of registration/re-registration (re-registration means the entry in the register was updated to include the father’s details, or to show that the parents married, on a date subsequent to the initial registration)."

Department of Employment Affairs and Social Protection, May 2020

The debate on age

Built into the 2015 GRA Act was a review after two years. This time the Gender Recognition Act Review Group included three campaigners as well as a legal consultant to TENI. Appointed as chairperson of the group was Executive Director of BeLonGTo Youth Services, Ms Moninne Griffith.

“I am honoured to take on this role of Independent Chair and look forward to guiding the process to review Ireland’s gender recognition legislation. In my role as Executive Director at BeLonG To Youth Services, I listen to the voices of our young LGBTI+ people, and know of the challenges and struggles that our trans and non-binary young people face every day here in Ireland."

Emails between civil servants demonstrate that at the last minute before the sending out of a press release there was a request to change "independent" to "external chair". At the publication of the group's report the Minister said “It was very important that the group was truly representative and also that it had an external chair”.

There is no mention of a submission or hearing being held with the National Women’s Council of Ireland (NWCI) although a submission was made by Irish Girl Guides which explained in its submission that:

from Irish Girl Guides: "Guidelines for the Inclusion of Transgender Members" (June 2017)

The review group reported to then Minister Regina Doherty in June 2018, recommending gender self-identification for children “of any age”. This was recommended to be subject to certain key principles such as parental consent with an appropriate legal process to address cases where there was not consent from both parents or if it was not possible or safe to obtain same.

One of the other key principles was "Third party support for the child and family involved." It was explained elsewhere in the review group report that

Review of the Gender Recognition Act 2015 Report to the Minister for Employment Affairs and Social Protection June 2018

Non-binary is an umbrella term for gender identities that fall outside the gender binary of male or female. This includes individuals whose gender identity is neither exclusively male nor female, a combination of male and female or between or beyond genders. Therefore, non-binary is a term that relates to questions of gender identity.

Recognition for those aged 16 to 17 is already provided for under the GRA and is offered with protections for those who are still legally children. According to the Act, an application to the court must be accompanied by a certificate from the applicant's "primary treating medical practitioner" and one also from an endocrinologist or psychiatrist who has no connection to the child.

In a briefing note prepared for the then minister before a meeting with TENI in November 2017, it's noted that this provision for certification by two medical experts (instead of one as proposed by the Department) was inserted on foot of a specific request from the Attorney General, when the provisions were being considered by Government. The reason for the change was to provide a mechanism to protect the best interests of the child.

For reasons of confidentiality applications of this type are made in camera to the Circuit Family Court.

In November 2019 Minister Regina Doherty agreed to allow those aged 16+ to self-id their gender for legal purposes only, “separate and distinct from any question of medical intervention, and should be facilitated with parental consent and a simple revocation process". Without parental consent such children would have "recourse to third-party mediation on a voluntary basis. This will happen through the services of the family mediation service of the Legal Aid Board."

However in June a story in The Irish Independent by Philip Ryan revealed several recommendations by Fine Gael's LGBT committee in a policy paper drafted for the government formation talks after the February general election:

"The committee, which includes Taoiseach Leo Varadkar as a member, also says laws need to be changed to allow all children under 16 change their gender with parental approval."

The report also recommended that the Gender Recognition Act 2015 be changed to "allow for the recognition of a gender other than male or female in law".

The use of the term "international best practice"

In February 2015 it was said that our proposed gender recognition legislation was "out of line with international good practice".

Just eight months later campaigners felt able to say: “Ireland now has one of the most progressive and inclusive transgender recognition laws in the world”.

What had previously been presented as necessary in order not to fall behind internationally was within months acknowledged to have put Ireland actually out in front, as one of a handful of nations to have adopted laws based on the Yogyakarta Principles which our Government says "are not an international treaty or otherwise binding on States. They were not intended to be formally endorsed by States."