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.

 

Gender Recognition Bill 2014: Committee Stage 3 February 2015

Progression of the Gender Recognition Bill 2014 can be followed here

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.

 

 

Children’s rights:

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.

 

International precedent:

Argentina

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.

 

 

Malta
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.

 

California

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.”

 

Compounding vulnerability:

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.

-END-