Careful protection of the rights of transsexuals rather than a knee-jerk legislative response is required in the wake of the recent High Court decision, writes Tanya Ní Mhuirthile
The High Court recently announced its intention to issue the first declaration that the law in Ireland was incompatible with the State's obligations under the European Convention on Human Rights. The landmark judgment was handed down in the case of Dr Lydia Foy, a male-to-female transsexual, who sought the issuing of a new current birth certificate reflecting her female gender identity.
Under Article 29 of the Constitution, Ireland maintains a dualist approach to international law. Such an approach sees international and domestic law as two separate legal systems and thus the former only impacts on our national law to the extent to which it is incorporated by Irish legislation. Thus by issuing a declaration of incompatibility with the convention, the judgment in this case does not strike down any laws in Ireland.
It merely obliges the Taoiseach to ensure the order is read into the record of both the Dáil and Seanad within 21 working days of the order being issued. As the Dáil only sits on Tuesdays, Wednesdays and Thursdays, this effectively means that the Taoiseach has seven weeks to bring the court order to the attention of TDs and Senators.
Furthermore, a declaration does not oblige the Taoiseach to explain how the Government intends to rectify the situation; no other action is deemed necessary.
The judge in the case, Mr Justice McKechnie, indicated that one way to bring the State into compliance with its obligations would be to introduce legislation which addresses the knotty issue of gender recognition. He recommended the Gender Recognition Act in the UK as a good example of such legislation.
However, the Oireachtas must be mindful not to rush into producing a knee-jerk, reactionary piece of legislation. In 2006 the Supreme Court in the CC case declared unconstitutional the law on statutory rape which denied to an accused the defence of reasonable mistake and thereby created a legislative crisis resulting in a convicted paedophile (A) being released from prison.
As a result of these cases the Criminal Law Sexual Offences Act 2006 was rushed through the Dáil and signed into law within two days of A's release. Due to the speed with which the Bill was passed it subsequently became necessary to introduce amending legislation to correct errors in the first version.
Therefore it is important to remember that the law in Ireland regarding gender recognition is no worse today than it was before the Foy judgment was handed down. Although it is clear that something must be done to ensure the vindication of the rights of transsexual persons this does not have to happen within the next month. Such persons would be better served by our legislators taking time to consider properly the issues raised by the Foy case. It is not sufficient simply to "copy and paste" the Gender Recognition Act into Irish law.
Generally speaking, the Gender Recognition Act has been welcomed in Britain. Trans activists, who advocate on behalf of both transsexual and transgendered people, have commended it for positioning Britain to the fore among progressive states willing to legally recognise trans people. However, the Act is not without its problems and before we simply adopt it into Irish law, our legislators should take some time to consider a number of issues which the Act raises.
First, where a person has married in his birth sex and subsequently decides to transition to another gender role, but remains supported by and married to her spouse, the Act requires that such a person be divorced prior to gaining legal recognition of her acquired gender. Thus the Act makes trans people choose between their right to remain married and their right to gender recognition.
Given that the Irish courts have consistently reiterated the importance of the constitutionally protected rights of the marital family, a provision such as this, which mandates divorce, needs special analysis prior to incorporation into Irish law. We need to ask the question: is it only some kinds of marital families which are protected or can Irish law ensure that the rights of all marital families are safeguarded while simultaneously vindicating the recognition rights of trans people?
Secondly, to access the rights contained in the English legislation, an applicant must be diagnosed with Gender Identity Disorder (GID), the medical term for transsexualism. However, diagnosis is all that is required. An applicant does not need to show evidence of having undergone medical and/or surgical procedures prior to gaining legal recognition.
This has been much lauded in Britain as it enables those who are, for whatever reason, be it medical or financial, unable to undergo the extensive surgery necessary to achieve a full gender reassignment to be legally recognised.
However, Section 11 of the Passports Bill 2007, which fell with the dissolution of the last Dáil, proposed to permit a person who "has undergone or is undergoing, treatment or procedures to alter the applicant's sexual characteristics and physical appearance to those of the opposite sex", to carry a passport reflecting his/her preferred gender identity. This proposed position differs significantly from that under the British legislation. There needs to be a discussion about whether or not Irish law should require some form of medical or surgical intervention prior to granting legal recognition.
Finally, a diagnosis of GID is not available to a person who has a concurrent intersex condition. Intersex is an umbrella term for a number of medical conditions whereby a person's body combines traits of both biological males and females. Experts estimate the rate of intersexuality among the population at 1.7 per cent. Intersexuality is not always apparent at birth, and where it is, it is not always certain to which sex an intersexed baby should be assigned, nor is there any guarantee that the child will grow up with a gender identity which conforms to that original designation.
However, under the British legislation intersexuals who were assigned to the "incorrect" sex at birth are excluded from the rights contained in the Act. Furthermore, the Act perpetuates the notion that male and female are discrete oppositional categories; intersexuals prove that this is not so. Some adult intersexuals have campaigned to be recognised outside the binary gender paradigm altogether and claim identities as intersex. The rights of intersexuals to gender recognition should also be considered by the Oireachtas in drafting legislation on the matter.
At present Ireland and Lithuania are the only EU states where the law will not recognise altered gender identities. In responding to the declaration of incompatibility, there needs to be uncomfortable conversations in the corridors of power to ensure that the rights of all people, whatever their gender identities, can be legally recognised and vindicated.
Tanya Ní Mhuirthile is a PhD candidate at University College Cork and a senior lecturer at Griffith College Cork