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Ministers and gender reassignment August 24, 2010

Posted by Tomboktu in Gender Issues, Human Rights, Medical Issues, Ministers, Social Policy.

I would guess that only a few people have given any more thought to the proposals about legally recognising a change of gender in Ireland than an instinctive reaction along the lines that it is a good move or that it is a bad move. However, even if you have no interest in the substantive issues — legal, medical, social, or even concerning public finances — that gender reassignment raises, there is one aspect of the consultation document that is simply crazy. That document is short — 999 words — and was published earlier this month by the Gender Recognition Advisory Group, which was set up by the Minister for Social Protection. Although the membership of the Group does not seem to have been published, it is an interdepartmental group, and I am told that it consists entirely of civil servants.

The public consultation document sets out three main sets of issues:

  • (a) it outlines options for a legal process for having a new gender legally registered and recognised,
  • (b) it invites submissions on what level of evidence will be needed before a change of gender will be recognised, and
  • (c) it sets out a few proposals on some specific issues (for example, that a birth certificate in the new gender should be indistinguishable from an original one).
  • On the second item in that list, the Group says simply that

    a level of evidence [will be required] to the effect that the applicant has made, or is making a genuine transition from the original gender to the opposite preferred gender.

    The Group invites submissions as to the evidence that should be required of the person making the application.

    and, elsewhere in the document, that

    [t]he criteria should be capable of being interpreted in a consistent and objective manner.

    (Experienced bureaucrats among the readers of CLR will note that ‘criteria’ is not the same as ‘level of evidence’, but it would be unfair not to recognise that that reference to the criteria must encompass the level of evidence.)

    It appears that the Group has not looked to other jurisdictions to establish any parameters that the level of evidence should meet. Nor does the group indicate that it is deliberately leaving the question open, although that may be the situation. That is not surprising. A group of civil servants is unlikely to have any of the psychiatric, endocrinological, or surgical expertise to be able to deal with that.

    What civil servants do have, in abundance, is expertise in bureaucracy and deferring to ministers, and they appear to have applied that with gusto. Here is what they say:

    The Group’s initial view is that the basic outline of the scheme should be as follows:

    1. The person seeking recognition of his/her changed gender makes an application to the Minister, or a decision making body designated under the Act, seeking to have the new gender recognised.
    2. The applicant submits evidence in support of the application.
    3. The Minister, or the decision making body, examines the application and the evidence and makes a decision to either accept or reject the application.
    4. The Minister or the decision making body, issues a formal statement to the successful applicant recognising the new gender.
    5. There will be an appeal process for unsuccessful applicants.

    The Group invites submissions on the proposed process.

    The most shocking piece of the consultation document, I believe, is the fact that in three of a total of five steps, the Group countenances a role for ‘the Minister’ in making decisions in individual cases. And this thinking appears in two other places in the document when the Group says:

    In making its decision the Minister or official decision making body will require a level of evidence to the effect that the applicant has made, or is making a genuine transition from the original gender to the opposite preferred gender


    The Minister or the decision making body will issue a gender recognition certificate to the successful applicant

    Yes, each of those references is immediately followed with a parenthical ‘or the decision making body’, but what kind of thinking leads anybody to believe that there is any justification for suggesting a minister would be given that kind of role, even if the detailed procedures reduce that to a final sign-off of a decision made elsewhere? I truly hope that the source is not the civil servants and that the references to a minister appear in the document because some minister — junior or Cabinet, pre- or post-reshuffle — insisted on it. And, in that vein, I hope the Group’s true view is reflected in the two options they offer two possibilities under the heading ‘Decision Making Process’:

    The Group invites submissions on the type of decision making process which should be established. Options could include:
    Judicial or Court — model whereby applicants would apply to a designated existing court;
    Statutory Panel — model whereby an expert independent panel would be appointed under the legislation to make the gender recognition decisions.

    I hope that submissions — the deadline is 17 September — support one of those options and make it untenable for the suggestion of a ministerial role to remain on the table.


    1. WorldbyStorm - August 24, 2010

    You know, that is pretty weird that the Minister has any function in this. Certainly the options you quote are vastly superior.


    2. DublinDilettante - August 24, 2010

    Are gender reassignments the new unit of currency in political patronage? The mind boggles.

    That said, I can think of plenty of ministers who’d want to put as much plausible deniability between themselves and these decisions as possible.


    3. WorldbyStorm - August 24, 2010

    That’s arguably very true indeed.


    4. Tomboktu - August 31, 2010

    The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has today blogged on the situation in Ireland for trans people.


    LeftAtTheCross - August 31, 2010

    Hopefully one of those situations where this state will be dragged into the 21st century by a higher legal and moral body than we seem capable of creating for ourselves (written with the same reservations about using “we” and “our” that Pope Epopt has used elsewhere in relation to how this state is screwing us over with Anglo / NAMA etc etc etc).


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