The Government should amend its draft law on gender recognition so as to widen the categories of people who can avail of its provisions, the Irish Human Rights Commission has said.
In its observations on the general scheme of the Gender Recognition Bill, the commission welcomed the proposed legislation but warned that parts of it might not be in compliance with relevant human rights standards.
If the Bill is enacted, a person may apply for a gender recognition certificate which will be recognised by the State for all purposes, including dealings with public and private bodies. It is a direct response to a 2007 High Court ruling which found the State in breach of the European Convention on Human Rights (ECHR) following a successful case taken by Dr Lydia Foy, a transgender woman who sought to have her gender recognised on her birth certificate.
Highlighting three areas of concern, the commission first argues that the proposed requirement that a person seeking a certificate be over 18 years discriminates against young transgender people who may have already made the transition to their self-identified gender, with the support of their parents or guardians.
Second, the commission takes issue with the requirement to be single. It says this will adversely affect transgender people who are happily married or in civil partnership, and who may not wish to separate from their spouse or partner and may not legally have the possibility of doing so.
Finally, the commission expresses concern regarding the blanket requirement for medical certification that a person has changed to their self-identified gender. It says this may intrude excessively into the person’s private life and raises a question as to “whether gender identity is properly regarded as a matter of self-identification or one of medical diagnosis.”
In her own observations on the draft law, Ombudsman for Children Emily Logan has also urged the Government to drop the exclusion on 16-18 year olds and their parents seeking a gender recognition certificate.
'Not sufficiently urgent'
Noting that six years have passed since the High Court decision in the Foy case, the commission suggests the Government's response "has not been sufficiently urgent".
“Such a delay is incompatible with the State’s obligation to provide for effective remedies under the ECHR12 and brings into question the effectiveness of the European Convention on Human Rights Act 2003 in ensuring individuals have a remedy for a breach of their human rights,” the report states.
Notwithstanding that, the commission's acting chairman, Ray Murphy, said the proposed law would finally provide a legal mechanism by which transgender and interest people might have their self-identified gender officially recognised. "Transgender people have been campaigning for this basic rights for many years, and the High Court in the Foy judgment in 2007 confirmed that the State's civil registration system is not in compliance with the requirements of the European Convention on Human Rights," he said.
The landmark 2007 High Court judgment by Mr Justice Liam McKechnie followed the precedent set in the cases of Goodwin v the United Kingdom and I v United Kingdom in 2002, in which the European Court of Human Rights found breaches of article eight of the ECHR, in respect of the failure of the UK to provide a civil birth registration system for the legal recognition of the new gender of transgender people.