Legal gender recognition is an important tool for trans people of all ages and backgrounds to affirm their identity in public and in private, to protect their rights to private and family life, and to enable them to live their lives more easily. The Republic of Ireland went from trailing Europe in 2014 to among the most progressive in the area of legal gender recognition, but the 2015 law had its problems, recognised and detailed in a 2018 review report.
We are pleased to welcome Minster Doherty’s report detailing progress to date and government recommendations as to reforming the process for legal gender recognition in Ireland. Although TransgenderNI is an organisation based in Northern Ireland, the communities we support are from all corners of the island and a large percentage hold Irish citizenship.
Access for young people aged 16-17
We welcome the Government’s proposals to amend the Gender Recognition Act 2015 to provide for improved recognition to young people aged 16 to 17, as provision is currently onerous, medically controlled and inaccessible. We are pleased that proposals include a plan to bring gender recognition in line with name change law, but would stress that this is not a self-declaration model. Although proposals suggest allowing gender marker change upon consent of the parents, with no medical involvement, and with a separate option where consent is not available, which is an improvement, this does not meet the criteria for a self-declaration system. We recommend the Government not refer to it as such for the purposes of clarity with trans communities, and in the aim of transparency.
Access for children and young people aged under 16
We are profoundly disappointed that the Minister’s report does not contain any plans to introduce access to legal gender recognition to those aged under 16 years of age. Articles 8 and 12 of the United Nations Convention on the Rights of the Child, provide children the rights to an identity and to be taken seriously respectively. We urge the Minister to reconsider this plan, as denying children and young people this right until the arbitrary age of 16, with no consideration to each individual’s evolving capacity, is a dereliction of duty to children’s rights by the State.
We urge the Government to engage with other State Parties from around the world, particularly those in the EU who currently provide for children’s recognition or are currently planning to.
Purpose of the Gender Recognition Certificate
As outlined in the Minister’s announcement, it is proposed to make it clear on the paper document that Gender Recognition Certificates for those aged 16-17 years are only issued on the basis of self-declaration and are not for the purposes of accessing medical treatment. We disagree with this proposal. Gender Recognition Certificates are not generally to be used as standalone documents, but to access a corrected birth certificate. It is a matter for Government communications to trans communities and their families, and for medical regulators in the State, to make it clear to professionals and trans communities that legal gender recognition is apart from access to medical intervention.
As the Minister then proposes to ensure trans people’s corrected birth certificates are indistinguishable from others’, a proposal which we strongly welcome, it is currently unclear how these two aims can be met for those aged 16-17. We remind the Government of the crucial role that gender recognition plays in trans people having access to their rights to private and family life under Article 8 of the European Convention on Human Rights.
Access to non-binary people
The Minister has proposed that no legislative change is made for non-binary people to access to legal gender recognition system in Ireland at this time, but that it will be reviewed within 5 years of the commencement of the legislation resulting from the current review. For non-binary people’s Article 8 rights to be delayed until at least 2025 is unacceptable, and we urge the Minister and the Government to engage with other State Parties around the world who have successfully implemented non-binary legal recognition systems. We strongly disagree with the Minister’s intention to delay access for non-binary people.
Concurrent change of name upon application for a GRC
The initial Gender Recognition Review Group in 2018 recommended that trans people be provided a route to change their name at the same time as applying for a Gender Recognition Certificate, and that the amended birth certificate be acceptable name change documentation in line with other Irish citizens. The Minister has today recommended that a GRC be acceptable change of name documentation, similarly to how a GRC can be produced as proof of change of legal gender.
Where this is specifically limited to the process of amending your birth certificate, we consider this a good recommendation.
Where this is also proposed for other engagements with State or private organisations, we regard this as an insufficient provision. To protect trans people’s rights to private and family life under Article 8 of the ECHR (see above), a birth certificate indistinguishable from standard birth certificates is required. Therefore, this birth certificate should be the document used. To require (or imply that it is preferred for) trans people to produce a GRC for access to simple administrative processes is an unacceptable breach of their rights to a private life.
We reaffirm: calls for indistinguishable birth certificates are essentially to protect privacy. To recommend or require a GRC take the place of birth certificates for some purposes is not acceptable.
If the proposal is merely intended for the specific purpose of amending a birth certificate, we recommend the Government clarify this with trans communities.
Access for Northern-born Irish citizens and those outside the State
We wholeheartedly welcome the Minister’s proposal to open up legal gender recognition to those born in Northern Ireland who hold Irish citizenship under the Good Friday Agreement and other treaties, and for others living outside the State who hold citizenship.
We continue to urge the Government to engage with the UK Government on this issue, and to particularly focus engagement when discussing the reformation of the Northern Ireland Executive functions and similar cross-Governmental working related to Northern Ireland. We are pleased to welcome assistance with this in any way.
TransgenderNI is a human rights organisation dedicated to forwarding the rights of trans, non-binary and questioning people in Northern Ireland. We run the only trans community centre in the UK and Ireland, the Belfast Trans Resource Centre, and work at regional, national and international level to protect and progress human and civil rights for our communities.
This release was written on 29/11/19 by Ellen Murray, Executive Director of TransgenderNI. Organisations and individuals are welcome to get in touch for comment or clarification anytime online or by phone.