From medical assessment to affirmation: legal gender self-declaration in Ireland
Cited by the Scottish Government as its main example of ‘international best practice’, in 2015 the Irish Government passed the Gender Recognition Act. Yet the vast majority of Irish people have little or no awareness of the degree of legislative and institutional change, or relatedly, the extent of policy capture that has occurred in Ireland on this issue in the last few years.
This is hardly surprising. A report on legal gender recognition in Europe published by international law firm Dentons in November 2019 praised activists in Ireland for passing legislation “under the radar” by “latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather than taking more combative, public-facing approaches.”
Legal background
In Foy v An t-Ard Chláraitheoir (Registrar General) & Others 2007 the High Court in Ireland found that the refusal to issue a new birth certificate that reflected the acquired gender of Dr Lydia Foy was a violation of her rights under the European Convention on Human Rights. In 2010 the Irish Government set up an Advisory Group of government officials to design a system of legal gender recognition. Reporting in July 2011, the Group recommended a medical model, whereby those wishing to change their legal sex would require a formal diagnosis of Gender Identity Disorder (GID) plus either relevant supporting medical evidence or evidence that the applicant had undergone gender reassignment surgery (or evidence of the recognition of changed gender in another jurisdiction). Consistent with the UK Gender Recognition Act 2004, the proposed model required applicants to be eighteen years or over and have lived a minimum of two years in their changed gender.
In December 2014 the Government introduced the Gender Recognition Bill, drafted on an assessment model basis, with applicants required to provide a supporting statement from a known medical practitioner.
Medical model replaced by self-declaration
With activists saying that the bill didn’t go far enough, in early 2015, Professor Michael O’Flaherty, rapporteur of the Yogyakarta Principles, a native of Galway city and now head of the EU Agency for Fundamental Rights complained that the Gender Recognition Bill, then before the Oireachtas (Houses of Parliament), was “certainly not progressive“, stating:
“Instead, it draws on the outdated legislation of some states to establish for Ireland a gender recognition framework that is disrespectful to transgender persons, out of line with international good practice and at odds with the country’s international human rights commitments. It will be an avoidable shame if this Bill is adopted without the benefit of significant amendment.”
Citing the Yogyakarta Principles O’Flaherty recommended that:
“The Bill should be amended so that the sovereign choice of the applicant is acknowledged. Doctors need to be removed from the picture, as their involvement suggests that gender is a matter of biology. It is only a small step from that to an insistence that people undertake ’gender reassignment’ surgery and treatments before being recognised in a new gender identity. This would violate the legal standard, reflected in the Yogyakarta Principles, that gender identity ’may’ but need not ‘involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means’.” (The Irish Times, 10 February 2015)
The Gender Recognition Act passed in July 2015. The Dáil (lower house of the Oireachtas) dropped the requirement for supporting evidence from a medical practitioner in the last few weeks of its passage and replaced it with a self-declaration approach.
Effect of a Gender Recognition Certifcate
Once a Gender Recognition Certificate is issued a person’s gender “becomes for all purposes the preferred gender from that day forward. Accordingly, if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman.” Applicants can also have the GRC issued in a different name to that on their original birth certificate.
The debate on age
Built into the 2015 GRA Act was a review after two years. The Gender Recognition Act Review Group had campaigners for further change sitting on it, including one member who is a legal consultant to TENI, the Transgender Equality Network Ireland.
There is no mention of a submission or hearing being held with the National Women’s Council of Ireland (NWCI) although a submission was made by Irish Girl Guides (which explained in its submission that for overnight activities: “For trans members, this includes sleeping in the same area as the other members if the trans/girl woman herself is comfortable”. And that “An adult who applies to be a Leader does not need to declare if they are transgender”).
The review group reported to then Minister Regina Doherty in June 2018, recommending gender self-identification for children “of any age” as well as legal gender recognition for those who are “non-binary”. Also recommended was “third party support for the child and family involved”, discussed earlier in the report as “support from TENI and/or BeLonG To or other sources outside the family.”
Minister Doherty responded to the review group in November 2019 and agreed to allow children from 16 years or over to self-identify their gender, although the response also noted that legal gender recognition was separate from any medical intervention.
Transgender healthcare committee and the treatment model
Campaigners have made it clear that they expect Ireland’s Health Service Executive (HSE) to follow WPATH, the World Professional Association of Transgender Healthcare guidelines.
However Professor Donal O’Shea, the leading consultant endocrinologist in this area told GCN (Gay Community News magazine): “We don’t intend to run the service in line with WPATH guidelines. Aligning with them would result in significant harm accruing to those with gender confusion”.
Prof O’Shea later declined to sit on the new HSE Steering Committee, which was charged with developing a Transgender Identity Service (currently children from Ireland are seen by flying in two clinicians from the Tavistock and Portman NHS trust in London to run clinics at Crumlin Children’s Hospital).
Describing the situation “as close to farce as you could get”, Professor O’Shea stated “I didn’t feel it was appropriate to sit on a committee where there would be friction between advocacy groups and clinicians“, offering a choice between himself, with 25 years experience, and activist and transman Noah Halpin who the Minister for Health, Simon Harris it was announced was appointing to the committee. Also on the committee are two members of the transgender advocacy group TENI.
The HSE committee was due to report at the end of January, but has recently hit the headlines again for all the wrong reasons, with doctors working in the adult gender clinic at St Columcilles Hospital, Co Dublin reported as saying that the service under which adolescents with gender dysphoria can be given puberty-suppressing hormone blockers is “unsafe” and must be immediately stopped.
Concerns over standards of clinical care and governance were raised at a meeting of doctors and hospital officials in March of last year. The Irish Independent reported that the issues raised and calls by the doctors for the service to be “terminated with immediate effect” were omitted from draft minutes of the meeting.
The HSE for its part defended its service being provided and added that it was working with leading clinicians and representatives of the transgender community to develop an agreed model of care.
Impact on prisons
As a consequence of the legislation, a man convicted of ten counts of sexual assault and one count of cruelty against a child but in possession of a GRC was sent to a woman’s prison last year. The Irish Prison Service have confirmed this prisoner will be “included in our female prisoner statistics.”
Robert Purcell, chair of the Law Society Criminal Committee told the Law Society Gazette that the Gender Recognition Act 2015 had placed the State in an impossible position with regard to transgender prisoners, pointing out that the law is challenging for the courts and the Irish Prison Service since there is, potentially, a safety issue for women inmates housed alongside a male-bodied prisoner:
“The law that was enacted in 2015 did not envisage this situation, and it puts the Prison Service and the courts in a difficult position because, obviously, if somebody is self-declaring that they have to be recognised, then they have to be dealt with on that basis, even though physically, they have not have made the [physical] transformation.”
“I don’t think the legislation envisaged the ability of transgender people to be able to self-declare; and it didn’t foresee the problems it would cause if a transgender, self-declared person was held in a mixed prison.”
Political parties pledge support for various activist demands, despite medical concerns
In the February 2020 Irish general election various political parties put forward policies on gender identity. These ranged from Fine Gael offering to adhere to WPATH, to one of the smaller parties, the Social Democrats, pledging to using “gender neutral pronouns whenever possible in future legislation and recognise Them/They pronouns.”
Sinn Fein, which won its largest share of seats in recent times in Dail Eireann, pledged to “Reform our trans healthcare towards an informed consent model.” This was despite the fact that, according to the Irish Mail on Sunday, some doctors had expressed concerns “about the activities of some campaigners who want patients to be assessed along the lines of ‘informed consent’ when seeking hormone treatment and surgeries, which could remove the need for an important psychiatric and psychological evaluation.” Professor O’ Shea stated:
“We’re developing a model of care in line with international best practice, and any embracing of the informed consent model is going to cause widespread harm for some people, while others get more rapid access to treatment that they need.
“The idea of starting hormone treatment and surgeries without assessing a patient, well then you are in grave breach of your duty of care.
“The minister is listening ad nauseum to advocacy groups and to people whose standards I don’t want to be our standards. I am increasingly surprised and stunned at the direction that this seems to be going in, within the Department of Health and at ministerial level” (Irish Mail on Sunday, 30 June 2019).
The politicians most identified with these issues did not necessarily benefit. For example, Minister Doherty, who had complained to her department officials that the GRA Review Group “seems very heavily weighted with officials”, lost her seat.
Legislative reform and ‘international best practice’
In February 2015 Professor Michael O’Flaherty described the 2014 Bill as ‘out of line with international good practice’. The pressure exerted on legislators by making unflattering comparisons with other jurisdictions, especially by invoking the Yogyakarta Principles, should not be underestimated. Just eight months later campaigners felt able to say: “Ireland now has one of the most progressive and inclusive transgender recognition laws in the world”. What had previously been presented as necessary just in order not to fall behind “good practice” was now acknowledged to have put Ireland in the vanguard, as one of a handful of nations to have adopted laws based on Yogyakarta. As a result Ireland is now held up by campaigners in other countries where self-declaration is being lobbied for, as is quickly seen from looking at the debate in Scotland. Whether the introduction of gender self-declaration in Ireland can be reliably invoked as an example of ‘international best practice’ is more debatable. With evidence of problems in the prison estate now surfacing, as well as a process which was deliberately kept out of the public eye, legal gender recognition in Ireland raises questions about how reform was achieved and the thoroughness of parliamentary scrutiny, particularly when it comes to the potential impacts on women as the change beds in.
Jill Nesbitt has worked as a freelance and staff journalist for The Irish Times and more recently has also written for The Sunday Times, The Times (Ireland editions) and as a researcher on Ireland’s national broadcaster RTE’s Consumer Show