Call for ‘legal pathway’ to allow under-16s self-declare gender identity

A “legal pathway” should be opened up to help allow children under 16 self-declare their own gender identity, a human rights organisation has said.

Free Legal Advice Centres (FLAC) has made a number of recommendations regarding the Gender Recognition Act to the Department of Employment Affairs and Social Protection, which is conducting a review.

The Gender Recognition Act, which was passed into law in 2015, allows all individuals over the age of 18 to self-declare their own gender identity. Young people aged 16-17 can also apply to be legally recognised, but the process has been described as “more onerous” by the Transgender Equality Network.

Eilis Barry, chief executive of FLAC, said 16 and 17-year-olds should be able to apply for legal recognition as if they were 18 and that a legal pathway would be opened for children under 16 "with the court being required to hold the best interests of the child as the paramount consideration in decision making".

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The organisation has also recommended equality legislation should be amended to prohibit discrimination based on gender identity and gender expression and that there needs to be protection for those who identify as intersex or non-binary persons.

“We’ve also recommended the introduction of a third option such as ‘x’ for non-binary intersex on identity documents and that the Gender Recognition Act needs to be amended for recognition of non-binary gender identities,” Ms Barry said.

Ms Barry was speaking at the launch of a report detailing the story of transgender rights activist Lydia Foy and her 22-year legal battle for recognition in Ireland of her female gender.

“Lydia is an incredibly strong, brave and resilient person who has brought a sea of change in law and how society views gender,” Ms Barry said.

Ms Foy’s legal battle began in 1997, when having been refused a female birth certificate from 1993, she approached FLAC for help.

In 2007, the High Court found the State's failure to enact laws recognising her acquired female gender was incompatible with the European Convention on Human Rights. The case was later re-activated due to delays in introducing the necessary legislation, but effectively settled in November 2014 on terms including the High Court being told the Government would enact the necessary laws "as soon as possible" in 2015.

“It was a long struggle but was worth it knowing that future generations won’t experience the same struggle I did,” Ms Foy said.

Michael Farrell, senior solicitor with FLAC who dealt with the Foy case, said it exposed "serious flaws in our legal system".

“There have been remarkable changes in Irish law and society over the last few years, marriage equality, gender recognition and repeal of the eighth amendment in the Constitution,” he said.

“But there is still much to be done, especially around the right to housing and shelter, the treatment of immigrants and asylum seekers and the rights of person with disabilities.”