Gender Recognition Bill 2014: Report and Final Stages 15 July 2015

As always, the Minister of State is welcome to the House. I thank the Tánaiste for her commitment to the issue of gender recognition and thank the Minister of State for the energetic and robust debates we have had here in the Chamber and outside. I join other Members in welcoming the distinguished guests who have joined us here today, in particular Dr Lydia Foy and Michael Farrell. As I look at each face in the Visitors’ Gallery and think of the journey I have been on, I note that I did not know the majority of these people a few years ago, but now I feel I know them as friends. They have had to share their life stories with me for me to understand what we are debating here today and see the importance of today. That says a great deal. I have met some really amazing and brilliant people.

As the Minister of State knows, I have met many parents and children directly affected by this issue. While I am really happy today and recognise that is a great day, it is a bittersweet moment for me. It brings me back to my childhood when teams were being picked. There is a team getting on the human rights bus that is going. They are the adults and they are going to get it but the children did not get picked. That feeling of children being left out in the cold…yet again… makes it very difficult for me again today that we did not do anything for children, even though we had that opportunity. As we meet today, young people organised by TENI are meeting on the issue. BelongTo has a group of children meeting on this very issue. It is not that these children do not exist; they do. The Minister of State and I have met the parents and we know the real issues they face.

I will not go back over and rehearse every issue, but there have been developments since we debated the issue in the House in February. The calls I have made were informed and very much supported by organisations such as TENI and BeLonG To but also by the ISPCC, Children’s Rights Alliance, NYCI, SpunOut, Epic, Amnesty and the USI, just to name a few. Indeed, at its parliamentary assembly, the Council of Europe issued a resolution on discrimination against transgender people in Europe and said we needed to ensure that the best interests of the child are a primary consideration in all decisions concerning children. This is on transgender people; I am not picking something out of place. Indeed, since we have been debating the matter, Malta has passed gender identity, gender expression and sex characteristics legislation which ensures that children are free to live as they wish and are only required at the age of 14 to provide a gender for their birth certificate. In Norway, the Government has proposed legislation for pre-legislative scrutiny, not some independent Senator, to look at gender recognition from age seven. I welcome the commitment the Minister of State made in February to have the roundtable among education partners and I welcome the fact that one meeting has happened, but it is only one meeting. No education partners have been contacted on the issue of transgender children. We will face September again and there will be children who cannot live as they wish and go to the schools they wish to attend because they are being actively blocked.

Much has been made of the marriage equality referendum, which was a joyous and tremendous day, but there was also the children’s referendum which took two years for the Supreme Court to clear. That is the lens we also need to be looking at. We need to ensure that our legislation is also looking at that lens. The Government’s national policy framework for children and young people, Better Outcomes, Brighter Futures, is a whole-of-government document, not just one relating to the Department of Children and Youth Affairs. It very clearly sets out that the development of laws, policies and services should take into account the needs, rights and best interests of children and young people. It says that efforts should be made to involve children and young people in policy and decision-making processes. While that is Government policy, we saw in this process that children were excluded from the debate at the pre-legislative scrutiny stage. I have gone over my notes to confirm that. There was no good reason for it. I have gone back over the e-mails and the Acting Clerk of the Dáil has confirmed that they should have been allowed to give testimony at those committee hearings, but were not. We did not allow their voices to be heard, and we should not have done that. Other committees allow children to appear before them.
As I said, the best interests of the child should be our paramount consideration, taking account of the views of the child and the evolving capacity of the child. I proposed an interim gender recognition certificate where everybody is ad idem, that is, the parents, the child and an independent person, be that the Minister, a general practitioner or a court. Obviously, that was not successful. It was brought forward again in the Dáil. That led me to read the debates in the Dáil on Second and Report Stages, in particular. It was noticeable that Members of all parties and none raised the issue of children and the importance of including children in the Gender Recognition Bill. There was one exception, the Labour Party. Its Members did not, so perhaps it is Labour Party policy. I do not understand. I have read through all of the transcripts and no Member from the Labour Party raised this issue. I am still at a loss. The European Region of the International Lesbian and Gay Association gave really compelling testimony before the 29th Human Rights Council. Obviously, it welcomed what we are doing in Ireland but also noted that there was no process for legal recognition of minors under 16 years of age. These children exist and they deserve protection. A parent of a six year old trans girl said: “I just want to keep this child alive. I have a happy child now, why end up with a dead child? It’s important that she gets documents that reflect her gender.”

The difficulty for me, to which I have not received a satisfactory answer, is relevant to the court case S. v. An Bord Uchtála in 2009.  The case involved an intersex child born abroad, who had been registered as female at birth. The judge made an order to allow an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing as a boy and enable him to be enrolled in the local boy’s school. The difficulty is that because this Bill excludes children, are we saying to the courts that we do not want them to interfere or do anything on children? We are closing the door on this. As a legislator, I believe we are sending a clear message to children that we will not talk about gender recognition. That is a problem for me. I am also worried about one of the amendments from the Dáil regarding passports. Again, I have dealt with some cases where children have got their gender changed, not on their birth certificate but on their passport. This amendment will not allow that to happen. Even more children have been squeezed out of this. There are four to five children a year who will not now be able to get a passport in the gender they wish because we have tightened the knot again and really made sure that children are firmly outside the room when it comes to gender recognition.

In conclusion, the Minister for Children and Youth Affairs wrote to the Tánaiste and Minister for Social Protection and proposed written amendments. I appreciate that she did not feel she was in a position to accept those amendments. Is the Minister saying that this is now under the remit of the Minister for Children and Youth Affairs? If it is, I will table amendments to the Children First Bill. This must be made clear because I do not wish to be told when we debate the Children First Bill that it should have been done in the Gender Recognition Bill or that it should be done by the Minister for Social Protection. Will the Minister clearly state whether this is in the remit of the Minister for Children and Youth Affairs? When will the meeting with the education partners take place? I am not asking for an exact date, but a timeframe for when it will take place.

One of the proposals sent by the Minister for Children and Youth Affairs was that we would explicitly state that children and young people would be included in the strategic review. Will the Minister give a firm commitment on that? I do not wish to be told two years hence: “Children are not in the Bill so how can one strategically review children if they are not in the Bill?” I wish to be told clearly that this issue will not be left behind. It is a joyous day for adults, but there are children whom I have met and to whom we have said: “Go sit in the corner; we are not ready to deal with this yet.” In fact, we have slammed the door.

 

Press Release: The exclusion of children from the Gender Recognition Bill is fundamentally wrong

Senator Jillian van Turnhout describes the exclusion of children from the Gender Recognition Bill 2014 (being considered, Wednesday 17 June, by the Dáil Select Sub-Committee on Social Protection) as fundamentally wrong

She says “I cannot sit silently by as we tell trans children and young people to sit in the corner and wait for their rights to be upheld, maybe, at some point down the road.”

 Statement from Senator Jillian van Turnhout 16 June 2015 *** Embargo 10am 16 June 2015***

“There are few groups in Ireland more vulnerable than our transgender (trans) children and young people. We don’t know exactly how many trans children we have in Ireland but we do have compelling anecdotal evidence from the groups supporting them that their number is significant; they live all around Ireland; there has been a notable increase in the numbers of trans children and their families contacting support groups for advice over the last 12-18 months; and in LGBT awareness training in schools the vast majority of teachers have questions around trans issues and trans identification. This is not a remote issue. We are talking about real children throughout Ireland right now. Many of these children are living a nightmare from as early as between three and five years of age when their gender identity is likely developed, where their gender identity doesn’t match the sex they were assigned at birth and therefore indicated on their birth certificate.  These children and their parents face numerous challenges as so many of our services are driven by our birth certificates.

“Schooling is a classic example of the barriers trans children face in trying to live their young lives in the gender they identify with. We have a predominantly single-sex school system in Ireland where enrolment is predicated on a birth certificate. And so, we can have a 6 year old child who has clearly articulated that he identifies as a boy. His parents, friends, extended family and community all accept and support his lived reality. Is this young child, a boy, really going to be forced to go through a girls’ school, wearing a girl’s uniform, using the wrong name and personal details in order to access the education available in his locality? Are we really prepared to stand over legislation that in this case would allow unnecessary distress, embarrassment, humiliation and potentially serious psychological harm prevail in this boy’s life for 10 years before he is eligible to apply to have his gender identity recognised?

“As a children’s rights activist I am profoundly disappointed that children under the age of 16, and given the onerousness of the process for 16-18 year olds we can say in effect ALL children, have been excluded from the provisions of the Gender Recognition Bill 2014, which enables a person to apply for formal legal recognition of their preferred gender. I believe the new children’s rights article in the Constitution makes it incumbent on the Oireachtas, in any legislation directly impacting the lives of children, to ensure the best interests of the child are the paramount consideration; the views of the child are heard when key decisions are made about their lives; and the evolving capacity of the child is facilitated.

“The voices, opinions and lived realities of trans children have been deafeningly silent throughout this legislative process. I do not know of a single trans youth who has been consulted by Government but I have heard directly from many young people and their families about how significant a mechanism through which their preferred gender could be formally recognised in their childhood would be to them practically but also in terms of their mental and emotional well-being.

“It is fundamentally wrong that this Bill does not provide a mechanism for legal recognition, even on an interim basis, of gender for trans children under 16 who seek it, where there is parental consent, support of the child’s GP and agreement that this is in the best interests of the child. I tabled an amendment seeking such a compromise, an Interim Gender Recognition Certificate, at Report Stage of the Bill in the Seanad back in February.

“It is important to stress that an Interim Gender Recognition Certificate for children is completely distinct and has no bearing on any decision that might be taken by a trans person to pursue medical intervention, such as hormone replacement therapy or to undergo gender reassignment surgery at a later stage in their lives.

“I sincerely hope the Government is prepared to deal with the question of trans children in this Bill. We have this opportunity to make a massively positive impact on the lives of trans children in Ireland and to ensure, unlike too often in the past, that we are not compounding and ignoring the needs of our most vulnerable citizens.

“An Interim Gender Recognition Certificate for children would allow the rights and best interests of trans children to be promoted and protected, and for evidence gathering around models of best practice for a permanent arrangement, in the period before the issue is revisited in the two year review.

“I cannot sit silently by as we tell trans children and young people to sit in the corner and wait for their rights to be upheld, maybe, at some point down the road.”

-ENDS-

For More Information, Please Contact: Senator Jillian van Turnhout,

Leader of the Independent Group (Taoiseach’s Nominees)

Phone: 01-6183375    e-mail: jillian.vanturnhout@oireachtas.ie

Notes for Editor:

  • Gender recognition is an established human right to which children, as individual rights holders (Article 42A(1) of the Constitution), should be entitled. The Yogyakarta Principles (2006), which consolidated international human rights law, treaties and standards relating to sexual orientation and gender identity, is widely accepted as the authoritative legal statement and fully supported by Ireland at the International for a, defines gender identity as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth”. Principle 3 goes on to say:  “Each person’s self-defined sexual orientation or gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”
  • The Gender Recognition Bill 2014 will be considered, Wednesday 17 June, by the Dáil Select Sub-Committee on Social Protection.
  • Senator van Turnhout tabled an amendment at Report Stage of the Bill in the Seanad on 17 February 2015 seeking an Interim Gender Recognition Certificate for children under 16 years of age.
  • 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.
  • Senator van Turnhout welcomed the commitment in February conveyed by Minister Humphreys in the Seanad on behalf of the Minister for Education and Skills, Jan O’Sullivan TD, to convene a round-table discussion with all educational partners on issues effecting transgender children. However, she notes that to date no steps have been taken to this end.

 

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”