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Government of the people (but not for transgendered people) July 15, 2011

Posted by Tomboktu in Gender Issues, Human Rights, Inequality, Ireland, Social Policy.
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The news reports in Friday’s papers, if any, on the launch on Thursday of the Report of the Gender Recognition Advisory Group will certainly contain the news that the law will be changed to allow transgendered people have their new gender legally recognised in Ireland. They might also contain information on concerns that have been expressed by the Irish Council for Civil Liberties, by FLAC, and by the Equality Authority, particularly their concerns about the compulsory termination of a marriage or civil partnership that a trans person will be required to undergo if they are to have their change of gender legally recognised.

Those news reports might be accompanied on Friday or followed in days to come with ‘analysis’ pieces — Saturday’s supplement editors might welcome the weighty wordage — in which a paper’s legal correspondent or an academic lawyer explains why there are constitutional difficulties or sets out how the proposals are, as the chairman of the Advisory Group pointed out, in line with the majority of provisions in other European countries. The Report even helpfully provides the thinking journalists with a table (page 22) setting out the contents of “schemes” in 13 other EU countries, such as requiring ‘genital surgery leading to sterilisation’, ‘hormonal treatment’, or ‘medical opinion’.

You are far less likely, I predict, to see any report or analysis of the deep lack of any common understanding between the rulers and those they rule over that was publicly demonstrated at the launch of the Report in Dublin on Thursday morning. This was plain through the hurt and restrained anger expressed by the trans people at the launch and comments by some civil servants that the trans people didn’t really understand. In the half hour or so before the Minister arrived, trans activists were speed-reading the report and drawing each other’s attention to yet another piece of text in the 65 pages that offended. They, unlike the top table, had only that snatched half hour before the Minister arrived to study and think about the report and formulate answers for the journalists present. While they may not have had the time to examine all of the minutiae of the report, they did have the best expertise that you could ever need when judging it: their real lives as trans people.

The two main problems the trans people raised were the requirement to get divorced (or terminate a civil partnership for a same-sex couple) and the medical model adopted by the Advisory Group. The way in which the two groups — the representatives of the State at the top table and the trans people whom they are effectively governing — dealt with their different understandings of these two issues in the questions after the Minister’s speech tells us more about our rulers than they intended.

The first question from the floor challenged the divorce requirement. The top table explained the constitutional constraints that apply (same sex marriage is not legal in Ireland). With a single rejoinder from the floor, and a hint from Joan Burton that she hoped the Zappone–Gilligan Supreme Court case or a referendum could change that situation, the trans people recognised that they did not have the legal expertise and moved on. The top table, however, did not repay in kind when their lack of expertise was exposed with the question on the medical model they had adopted.

The medical aspect is the requirement that one of three criteria be met before a change of gender recognition will be legally registered (pages 48 and 49 of the report):

  • a formal diagnosis of GID [Gender Identity Disorder] by one or more qualified mental health professionals, plus confirmation that the applicant is not suffering from any debarring mental health condition, plus supporting relevant medical evidence such as details of treatments undergone or in progress (hormone therapy, minor surgery or treatments to change facial appearance, gender reassignment surgery, etc), if available,

or

  • a formal statement by a qualified medical practitioner that, based on a physical examination, the applicant has undergone gender reassignment surgery in the past,

or

  • evidence of having had the gender change recognised in a foreign jurisdiction.

The debate centred on the first two of these, which constitute one of the key elements of the proposed Irish model of recognising changes of gender. The question asked why a medical intervention is needed. The response drew attention to the word “or” between the first two bullet points. This ‘or’, both Minister Burton and Oliver Ryan (the retired senior civil servant who chaired the Advisory Group) said, meant that gender reassignment was not a requirement. Notice what they did: ‘medical intervention’ was identified as ‘gender reassignment surgery’, and they claimed medical intervention is not a requirement because the first option, before the ‘or’, does not require that. I think Minister Burton and Assistant Secretary General Ryan should be required to undergo one of “hormone therapy, minor surgery or treatments to change facial appearance” — I’ll be generous and let them choose which one — and then tell us if they still think those are not medical interventions. Actually, feck that. “[A] formal diagnosis of GID by one or more qualified mental health professionals” is itself a medical intervention.

The second aspect of the medical intervention is the procedure that is proposed. A panel of three, consisting of a lawyer, a doctor and a third person not of either of those professions, will be established to decide if a person is entitled to have a change of gender legally recognised. The proposal for the role of this trio is (with emphasis added by me):

  • The decision-making body examines the application and the evidence and makes a decision to either accept or reject the application.
  • The decision-making body issues a Gender Recognition Certificate to the successful applicant recognising the new gender

In fact, the Report is littered with references to “successful” and “unsuccessful”, prompting one of the trans people to ask me after the the proceedings ended what the Advisory Group thought they were at. The idea that three strangers — or a Circuit Court Judge in an appeal — would be given the power to tell an adult resident or citizen, “no, actually, you are not a successful man, and we know better than you” is just offensive.

The response of the Advisory Group’s chairman, Oliver Ryan, to the critique on that point when it was raised during the proceedings was to say that the group had taken account of the best expert advice available to it and had looked at what is done in most other countries. And it is the lack of any answer to the rejoinder to his reply that shows just how big the gap between the rulers and those they govern is. Ireland, explained one of the trans people, has been so far behind in recognising the rights of trans people, that it has a wonderful opportunity to adopt best practice. Although that speaker did not say it at the publication event, the report actually quotes (on pages 62 & 63) some of a Council of Europe report on the best human rights standards in this area; it also cites the cutting edge global standard (albeit of a distinguished group of human rights experts — that included Mary Robinson — rather than an legal instrument), the Yogyakarta Principles, and a 2010 recommendation by the Council of Europe’s Committee of Ministers. Instead of adopting best practice, the Advisory Group adopted majority practice. And their justification is that experts had told this is how it should be done.

A good piece of journalism in the coming days or months (the publication of the Heads of a Bill and the Oireachtas debates will provide the media with opportunities to return to the issue) could deal with the merits or other wise of the technical issues — should doctors have a role, should a person be allowed to assert for themselves that they are a man or a woman and not have a panel deciding it for them, and is there some way of allowing a trans person to remain married and recognise their change of gender in our current legal system?

An outstanding piece of journalism will examine the deeper question of how the discussion has come to focus on those technical questions. It will report some other facts about the report and what what it tells us. One of those might be the list of the organisations who made submissions (individuals who made submissions are not listed):

  • BeLonG To Youth Service.
  • Free Legal Advice Centres.
  • Gay and Lesbian Equality Network.
  • Gender Identity Disorder Ireland.
  • Irish Council of Civil Liberties.
  • Irish Human Rights Commission.
  • Lash Back Collective.
  • LGBT Noise.
  • LGBT Society University College Cork.
  • Marriage Equality.
  • Ombudsman for Children’s Office.
  • The Equality Authority.
  • Transgender Equality Network Ireland.
  • Union of Students in Ireland.
  • The only one of those I don’t recognise is the Lash Back Collective (but I doubt that with a name like that they are a front for the Iona Institute). What is telling is not the contents of the list but the absences from it. No Royal College of Psychiatrists in Ireland, no Royal College of Surgeons or Irish Endocrine Society; not mentioned is the Law Society or Kings Inns, one of whose members are to sit in judgement on trans people. So, organisations of trans people and organisations that support them (such as GLEN or the statutory human rights bodies) are to be named, to be identified as those who have an interest, an opinion, but the experts who advised the Advisory Group are not seen as having an interest, are seen as above the fray?

    And what of the membership of the Advisory Group?

  • Oliver Ryan, formerly from the Department of Social Protection, Chair of the Group.
  • Kieran Feely, Registrar General.
  • Christine O’Rourke / Nicola Lowe, Office of the Attorney General.
  • John Kenny, Department of Justice, Equality and Law Reform.
  • Anne Coleman-Dunne, Department of Enterprise, Trade and Innovation.
  • Geraldine Luddy, Department of Health and Children.
  • Helen Faughnan, Department of Social Protection.
  • Caitriona O’Brien, Department of Education and Skills.
  • Deirdre Ní Neill, Department of Community, Equality and Gaeltacht Affairs.
  • Deirdre Fannin, Department of Foreign Affairs and Trade.
  • Garrett Cunnane, Legal Advisor, Department of Social Protection.
  • Civil servants, 100%. No member with the lived experience of being a trans person. No person noted for their study of the situation and experience of trans people. One job share from the Attorney General’s office might just have relevant expertise on the Irish legal possibilities, but everybody else is a bureaucrat who design and run administrative systems. And that expertise has been applied, in triplicate, to the model they have proposed.

    Report on that, you journalists.

    Comments»

    1. Gender Recognition Report fails to recognise - July 15, 2011

    […] Please go and read Tombuktu’s post on the Cedar Lounge – it is an excellent summary of t…with the Governments Gender Recognition Advisory Group report which was published yesterday.  The post also details the problems with the process and also the reaction which might be expected by the mainstream media who won’t really understand what the issues are and will end up getting some legal professional in to interpret without really getting the offence and dilemmas which will be caused to Trans people if the law is changed in the manner suggested by the report. […]

    Like

    2. The Pretty Serpent - July 15, 2011

    Lashback is a feminist collective in Dublin – so far removed from the IONA Institute it’s kinda hilarious that you compared them to it!

    Like

    WorldbyStorm - July 15, 2011

    Wasn’t Tomboktu doing the opposite of comparing them to IONA? :). Though as you say it is funny to hear them in the same sentence.

    Re the broader post I think it raises serious issues about how the state interacts with citizens and this as we know isn’t restricted to this area.

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    3. RosencrantzisDead - July 15, 2011

    The Civil Partnerships bill could easily be amended to permit trans couples to remain in a civil partnership. This is simply an irrational fear of litigation on the part of the government. The marriage issue is a trickier one and would need careful consideration.

    What were to happen if a couple in a civil partnership were to both seek gender reassignment/gender recognition? Would they have to dissolve their partnership too?

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    Jim Monaghan - July 18, 2011

    I am of the view that the state should leave marriage to the different religions and just have a Civil Partnership thing which governs secular relationships.

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    RosencrantzisDead - July 18, 2011

    If I recall, this is the system they have in South Africa. Everyone can get registered in a Civil Union or they can have their religious ceremony recognised.

    Personally, I would go a bit further than that, but a move like that over here would be a step in the right direction. But, depending on your point of view, it might require a referendum.

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    Tomboktu - July 18, 2011

    the state should leave marriage to the different religions and just have a Civil Partnership thing which governs secular

    Unfortunately, the Irish regime on civil partnership doesn’t even approach that. The main characteristic that most people know about CivPar is that it is for (actually also restricted to) same-sex couples. However, less well understood is that a civil partnership does not conceive (!) of the couple having children. So, Dad A (or Mam W) is the genetic father of a baby and a CivPar to Dad B (or Mam X) but Dad A or Mom W dies: there is no legal relationship between the child and her non-genetic parent.

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    Helen in Dublin - July 24, 2011

    ‘Jim Monaghan – July 18, 2011

    I am of the view that the state should leave marriage to the different religions and just have a Civil Partnership thing which governs secular relationships.’

    I am the heterosexual spouse of a transwoman, who will be affected by the section of the legislation demanding that we divorce before my wife can receive her gender recognition cert. As we have survive what was (at time) a very traumatic and emotional journey through to the full acceptance and enduring love we have now, we have no intention of ceding to the heartless divorce requirement which, I believe, would demand that we commit perjury in order to obtain such a divorce. Why?

    1. We cannot afford to spend at least four years apart, as required by divorce laws. The present international economic crisis means that we cannot afford to run two households, especially as our teenage daughter will hopefully attending university in less than three years. We thus fail on the first account.

    2. Our marriage has certainly not reached the point of ‘irreconcillable difference’. Hey, we don’t WANT to get divorced! Do we lie to fulfil this part?

    3. Our daughter is our biological child – what will be her status as the child of a broken home (which is in TOTAL conflict with the protection of the family according to the Irish constitution) ?

    Finally, I cannot understand the willingness of so many people to cede the term ‘marriage’ to the religious organisations that so oppose the human rights of the LGBT community.

    I accepted a proposal of MARRIAGE from my then-husband; we obtained a MARRIAGE license from the State, not the church; we receive all the tax benefits for MARRIED people from the State, not the church; should our marriage have broken down natuarally, we would have sought a divorce from the State, not the church.

    I repeat, I MARRIED my spouse – I do not wish to be ‘civilised’ to become a ‘partner’, nor be ‘domesticated’ or ‘unionised’ or any of these other options! I suspect that the many heterosexual couples who decide to MARRY in a registry office will be in agreement with me on this issue.

    Words have power, and the word MARRIAGE is one of the most powerful of them all – why the hell should we give it up to those who seek to deny us our Humanity and our RIGHTS
    as equal citizens of Ireland?

    Like

    4. Tomboktu - July 15, 2011
    5. Intersex excluded from Irish law reform | INTERSEX IN AUSTRALIA - July 18, 2011

    […] Cedar Lounge Revolution – Government of the people (but not for transgendered people) Share this […]

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    6. Max - July 18, 2011

    A very good analysis, thanks. As a cis man, I’ve been lucky enough to receive a patient education by some extraordinary trans people.
    A vanishing minority of cis people have been so fortunate, and as your blog post implies, nobody on the GRAG committee was.
    This report is a technical exercise to bring Ireland into compliance with Dr Foy’s hard won judgement. Some attempt was made to demonstrate an understanding of the terminology around the issues, but none, it appears, was made in pursuit of framing the report with the lived trans experience in mind.
    The launch was a wake up call to minister Burton. I hope she has the courage to override the pathologisation recommendations. I fear that the forced divorce is untouchable. The diabolical consensus on this matter is pretty impenetrable, but if advocates use the obvious inhumanity of forced divorce to get attention, they may be able to change some of the other onerous conditions.
    This opportunity won’t come around again soon, and a generation of trans and intersex people will have to live under these rules. I sincerely hope minister Burton’s mind is open as well as her door.

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    7. Transgender legislation pledged « Male/Female - August 6, 2011
    8. government-of-the-people-but-not-for-transgendered-people « Male/Female - February 12, 2012
    9. Awkward question on trans rights. | The Cedar Lounge Revolution - November 18, 2013

    […] It is now six years since the High Court found that Irish law breaches European human rights standards on the right of a transgender person to obtain a birth certificate in their true gender. That was followed by a government decision to set up an advisory group — consisting of civil servants — to prepare a report, which was published in July 2011. (My post on that is here.) […]

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