I move amendment No. 2:
In page 5, between lines 21 and 22, to insert the following:“ “child” means a person under the age of 18 years;”.
I welcome our visitors to the Visitors’ Gallery and I congratulate Senator Zappone. I did not speak on that amendment because I intend to say a great deal on this substantive point. I do not plan to speak on other matters, but this is an issue that is very close to my heart. I thank my colleagues Senators Mac Conghail and Zappone for supporting me in the grouping of amendments I tabled. I see that colleagues have similar intentions with the amendments they have put forward. I also thank the Minister for engaging with us.
I will outline the reason for this amendment. I do not intend to push it to a vote today but I intend to press it, or a similar wording of it, to a vote on Report Stage as I am very passionate about this issue.
The rationale behind the amendments I have tabled derives from what will be Article 42A.1 of the Constitution, depending on the Supreme Court judgment, which states: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
In my Irish Mirror column yesterday I spoke about Ireland’s shocking record in respect of the treatment, welfare and well-being of children in Ireland, especially vulnerable children whose vulnerability we appear to compound systematically.
I noted the significance of the successful passage of the children’s rights referendum on 10 November 2012, which sought to incorporate into Irish constitutional law the principles that children have rights as individual human beings, independent of adults and that their best interests and opinions are vital when important decisions are being made about their lives. The Irish people have spoken out and spoken up for children.
To my great frustration, these principles, which Ireland is already bound to respect under the UN Convention on the Rights of the Child, have not yet taken constitutional effect because we are still awaiting a final decision from the Supreme Court on the legal challenge to the referendum. I am very aware of the pressure and backlog of cases at the Supreme Court but part of me wonders why, after 26 months of delay, we do not have a public outcry. Despite a systemic change of mind set in recent years, we still have a long way to go to fully embrace the urgency of children’s rights.
It is very clear to me, having actively engaged at all levels of the consultation and debate around the wording of the constitutional amendment, that it was the intention of the Legislature and of the people in passing the referendum to enshrine children’s rights in the Constitution so that their rights will be safeguarded and vindicated in all future legislation.
The aforementioned UN convention, which Ireland ratified in 1992, sets out an integrated and holistic approach to the rights of children and is internationally accepted as the model of implementation at domestic level.
As far as I am concerned, in the drafting of any Bill which impacts on children’s lives, it is now incumbent on us as legislators to ensure that the best interests of the child are the paramount consideration, the views of the child are heard when key decisions are being made about the child’s life and that the evolving capacity of the child is facilitated.
I believe that this Bill, specifically section 11 as currently drafted, fails to safeguard and vindicate children’s rights in accordance with international law and the constitutional imperatives. In fact, the rights of children under the age of 16 are not even open to consideration.
I will refer now to amendments Nos. 15 and 17.
Gender recognition is an established human right to which children, as individual rights holders, should be entitled.
The development of gender identity in children:
In preparing for this debate today, I have looked for commentary or evidence about the age at which gender identity develops and was struck by the real dearth of research into transgender children. In fact, there is no incidence or prevalence data from Ireland or the UK on the number of transgender young people under 18. Of the research that was available, I noted that some paediatric specialists put the age of gender identity in children, whether transgender or not, at two or three. Other research cites gender identity development as occurring between three and five years of age.
Elizabeth Reilly et al published a very interesting piece of qualitative research on the issue which solicited the views of transgender adults about the needs of gender-variant children and their parents in the Journal of Sex and Marital Therapy – the peer-reviewed scientific journal published by Routledge – in 2013.
The researchers found that 94% of transgender adults had identified their gender before the age of 18, some 48% had identified their gender between zero and five years of age, while 44% had identified their gender between the age of six and 14.Only 2% identified their gender between 13 and 18 and only 2% after the age of 18, while 4% of the respondents did not reply. That is a pretty good indication of what period of a child’s life is important in terms of gender identification and goes to the essence of what we are talking about here.
There was a time in Ireland, during the last century, when it was widely believed that people did not become aware of their sexual orientation until they reached adulthood. It was commonly believed that this was something a person decided or determined but thankfully, we are more enlightened as a society now and more understanding of the reality. When it comes to gender recognition, however, we are still back in the last century and that way of thinking. I would like us to understand that it is actually at an earlier age that one’s gender identity is realised and understood. We need to accepted that fact.
The exclusion of children under 16 years from the Bill:
That is why I have an issue with this Bill, which actively excludes children under 16 from its provisions for making an application for a gender recognition certificate. It denies outright any consideration of their best interests in the context of their personal circumstances. I believe that this runs contrary to the best interest of the child principle.
A good example of how this outright denial has serious implications for the transgender and intersex child is seen in the S v. Bord Uchtála case of 2009.
That case involved an intersex child, born abroad, who had been registered as female at birth, was subject to a foreign adoption order and brought to Ireland to live. Upon examination by medical experts in Ireland and the United States, it was concluded that the child would most likely identify as a male and the decision was taken by the adoptive parents to raise the child as a boy. The parents sought an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing and so that he could be registered at the local boy’s school. The Adoption Board refused the application on the basis that it did not believe it had the authority to grant this request. On judicial review in the High Court, Mr. Justice Sheehan granted the request but the difficulty is that this was an ex tempore judgment and not a precedent.
I am concerned that a different judge, even in similar circumstances, might feel that he or she lacked the authority to grant such an order, given the discourse on this issue. In fact, I am worried that by introducing this legislation and being deliberately silent on children under 16, we are sending a clear message to the courts that they should never grant such an order. I will be seeking advice on this because a judge in a future case, similar to the one to which I referred, may find it extremely difficult to make a similar order.
In the aforementioned case, those involved – both the parents and the child – agreed with the order. With this legislation, we are saying, “We know best. Go to a girl’s school”. We would be telling a young boy to go to a girl’s school because we know best what is good for him and what is in his best interests. I believe that the best interests of that child were served by allowing him to be identified with the gender of his preference, with which his parents concurred.
In terms of international precedent, in October 2013 the Argentinian authorities granted a female identification card and amended birth certificate to a transgender six year old Luna, formerly Manuel, under that country’s ground-breaking gender identity law which allows people to change their name and sex without approval from either a doctor or a judge.
Under Argentinian gender identity law, individuals have the right to the recognition of their gender identity. Individuals are also legally entitled to the free development of their person according to their gender identity and to be treated according to that identity, particularly to be identified in that way in the documents proving their identity, including the first name, image and sex recorded there.
According to the law, gender identity is understood as the internal and individual way in which a gender is perceived by persons that can correspond, or not, to the gender assigned at birth including the personal experience of the body. This can involve modifying bodily appearance or functions but it can also include other expressions of gender, such as dress, ways of speaking and gestures.
I have heard this legislation before us described as progressive but as I speak, similar legislation is being debated in Malta which definitely is progressive. That legislation takes into consideration the lived life which is what we should be aspiring to here.
The Gender Identity Bill, which is today having its second reading in Malta’s Parliament and is expected to pass with cross-party support, proposes to change its civil rights legislation by removing the requirement that a child be given a gender at birth.
The Bill states: “The persons exercising parental authority over the minor, or the tutor of the minor whose gender has not been declared at birth, shall, before the minor attains the age of 14, by means of a public deed, declare the gender of the minor”.
I thought that perhaps Malta would not face the same issues as we do in the context of single sex schools but I discovered that the majority of State-run secondary schools there are also single sex. Malta is able to deal with this issue and ensure that it acts in the best interest of the child.
Access to education in the child’s preferred gender:
I am particularly concerned about the mechanisms we need to have in place to minimise the challenges currently faced by transsexual and intersex children in Ireland.
Examples of challenges are the segregated nature of our educational system and the requirement that parents must submit birth certificates for registration. Education, on which there is an amendment tabled, is a specific area to be considered but there are other settings in which children experience challenges. We may find a work-around.
Efforts being made in other jurisdictions:
In preparing for this debate, I was looking for examples.
In California in January 2014, Assembly Bill 1266, or the school Success and Opportunity Act, came into effect for K-12 students, who are between four and 19 years old, in the public school system.
The law inserted the following provision into the existing legislation: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”
In response to the new provision, Masen Davis, executive director of the Transgender Law Center in San Francisco, stated: “Now, every transgender student in California will be able to get up in the morning knowing that when they go to school as their authentic self they will have the same fair chance at success as their classmates.”
Transsexual and intersex children are inherently vulnerable because of their age and lack of legal protection. We have an opportunity to lessen this vulnerability but instead we choose to turn a blind eye or put up an artificial barrier, despite the fact that evidence suggests, and adults have said, that it is in children’s younger years that their gender identity is developed.
I am thinking of the six year old child who has clearly articulated his preferred gender and which has been fully embraced by his parents, friends, extended family and community. Is this young child, a boy, really going to be forced to go through a girls’ school wearing a girl’s uniform and using the wrong name and pronouns to gain access to the education available in his locality? That is what we are doing to children in these circumstances.
Are we really preparing to stand over legislation that in the case of the boy in question would cause unnecessary distress, embarrassment and humiliation, and potentially serious psychological harm, for ten years before he is eligible to apply to have his gender identity recognised?
Legislation that fails to listen to the voice of children or consider their best interests is not legislation I want to stand over.
Where a child has clearly articulated views regarding his or her preferred gender, or where the child has an intersex condition that might merit a change in gender and legal recognition, he or she should be facilitated in achieving this end, especially where all parties agree.
We do not even have a system where all parties can agree. In the amendments we have tabled, we have sought to find ways in which all parties can agree and, where they do not, where disagreement can be dealt with.
Issues around consent:
According to the Bill as currently drafted, 16 and 17 year olds will need an order from the court allowing them to apply to the Minister for a gender recognition certificate. The amendment I have tabled puts the best interest of the child front and centre in the court’s consideration, which is where it should be. I do not believe it should be a matter for any medical practitioner or psychologist. We should allow cases to be dealt with in court to ensure the child’s rights are upheld and protected.
The amendment is to secure the consent of the person referred to in subsection (4)(a) since the current drafting means the court has no authority to override the non-consent of an individual.
We need to have the measure I propose because we need to adhere to the principle of the best interest of the child. We do this with other types of legislation, such as adoption legislation.For me, the current provisions fly in the face of the requirement to ensure in our laws that the child’s best interest should determine the process.
Furthermore, the fact that the process for achieving gender recognition is open only to 16 and 17 year olds on consent does not make sense to me. Under the Non-Fatal Offences against the Person Act 1997, 16 and 17 year old children can choose, if they wish, to seek medical services as part of a medical transition process in their own right. They have full consent to go through the medical processes, yet the Bill requires parental consent to apply for a gender recognition certificate. The thinking is that children can undergo any medical procedure they wish but, to get the piece of paper, we need to protect them and involve their parents. It just does not add up.
I am genuinely concerned about the absence of a provision ensuring the best interest of the child. When the general scheme of the legislation was made available, the Ombudsman for Children advised that, if we had this process, an “illogical situation would arise in which the State would countenance a young person receiving the relevant medical treatment on the strength of his or her own consent, yet that consent would be insufficient to obtain legal recognition of the young person’s preferred gender and the outcome of that treatment”.
I hope the constitutional amendment will come into effect shortly. In any case, we have an obligation, having ratified the UN Convention on the Rights of the Child, to ensure we have the best interest of the child at the heart of all our legislation.
That we are silent about those aged 16 and below would not allow for the court case I spoke of or any other court cases in which a judge could use his or her discretion. As legislators, we cannot stand over that. We need to go back to the drawing board and consider the best interest of the child and find a mechanism on which everyone can agree, allowing children to live their lives as they desire.
Can you imagine trying to live your life as another person with a different identity? One might regard oneself as a “she” but be called “he” and be expected to conform by wearing certain clothing. We know clothing is a big issue for young people in schools. Are we really to deny their voice, best interests and what we now know about children, that is, that they have an evolving capacity and are able to make these decisions? We can find a structure that safeguards them and regards their best interest as paramount.