Awkward question on trans rights.

The government was asked last week to explain what it is doing to recognise transgendered people’s rights. The UN Human Rights Committee (HRC) included a question on the issue to the State in its list of issues it wants Ireland to explain at the periodoc review next year of Ireland’s obligations under the International Convenant on Civil and Political Rights.

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.)

It took a further two years to produce the Heads of Bill, in July 2013.

The HRC has asked the government to provide “detailed information on the steps taken to issue birth certificates to transgendered persons” (Link to Word document here). The government will have plenty of “outputs” to report to the Human Rights Committee:

• the establishment of the advisory group,
• publication of its report,
• decision of cabinet on the heads of bill,
• publication of heads of bill, and
• discussion of them by the Oireachtas Committee on Education and Social Protection.

It would not surprise me to see the Oireachtas Committee put under some backroom pressure to get a report of its hearings out so that there is another “output” by the time the HRC holds its hearings.

I hope the HRC puts the Irish officials who appear before it under close scrutiny about a new clause it introduced between the publication of a the report of the advisory committee and the publication of the heads of bill. That provision would allow sporting organisations to prohibit trans people from participating in some acivities. Now, there are pros and cons in such a provision, but their introduction into the heads of bill stinks. It has nothing to do with the issuing of a new birth certificate and the processes and requirements for that, and lies well outside the expertise of the Department of Social Protection. It amounts to a change in anti-discrimination law, although is not framed as such. Tellingly, the Department of Social Protection introduced a new proposal to allow discrimination in one area because of a person’s gender identity or the fact that they are transgendered without addressing the need for proposals to prohibit discrimination in other areas. I would not be surprised if it were dropped during the passage of the bill as a “concession” to trans people while leaving the core proposals that are hurtful and demonstrate a lack of any understanding by the drafters of the human cost of what they say should be enacted into law.

The second question that the HRC has asked will provide not so much an opportunity as a need for weasling by the State. The HRC asks “how transgender organizations have been included in such process, including in relation to the Gender Recognition Bill”. No doubt, the government will tell the Human Rights Committee that TENI (Transgender Equality Network Ireland) made a submission to the advisory group which was considered in preparing the final report, and has appeared before the Oireachtas to speak about the issue a number of times. They will probably also refer to the “engagement” with trans organisations by the Minister when she spoke at the Transgender Europe conference in Dublin in 2012.

I expect that the Department’s reply to the HRC will not record that

1. the advisory committee did not include a single representative of trans people,
2. the report and heads of bill do not comply with European human rights standard and
3. the Minister has refused to meet TENI herself.

I hope the officials are called to account on that and squirm while explaining their approach.

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TENI’s submission to the Human Rights Committee sets out in stark terms why action is needed, and needed urgently, and why the Government’s leisurely pace is itself an offence.

(a) Access to services: Formal, legal recognition of one’s identity – by the issuance of an accurate and correct birth certificate – is the gateway for enjoying numerous foundational rights in Ireland. Irish transgender persons who, on the basis of their expressed gender identity, seek to avail of important public services are frequently denied access because the Irish state only recognises the sex and identity assigned to them at birth. In Ireland, obtaining, inter alia, social security, Personal Public Service Numbers and marriage certificates all require the presentation of a birth certificate. The failure of the Irish state to issue new birth certificates to transgender persons means that, in order to access these foundational services, transgender people must present an official document stating that they are somebody other than their true self. Transgender people in Ireland cannot access services on the basis of their self-identified gender, even if they have lived in that gender for the greater part of their life.

The current legal situation creates an impossible and unfair choice for Irish transgender persons: the right to self-determination and dignity, or economic survival. Some transgender individuals ultimately decide to forgo their most basic rights because of the impossibility of presenting in a gender identity not their own. Others choose to access services on the basis of their birth-assigned identity and frequently confront widespread bigotry and discrimination.

(b) Restrictions on travel: The failure of the Irish state to issue new birth certificates restricts the ability of transgender people to travel. In this regard, journeys aboard can be particularly challenging. The 2008 Passports Act gives a transgender person the right to apply for a passport with their correct gender marker. However, the fact that a person’s birth certificate will not match the passport they are requesting means that issuing passports has, despite the existence of a clear legal right, become inconsistent and arbitrary. TENI has worked with people who have had difficulty obtaining a new passport. A transgender male who attempted to access a new passport but was told that not enough time had passed since his transition to apply for a passport with the male gender marker. When the individual tried to reapply with a female gender marker, he was told that he would need to provide “proof of use” of his female gender marker. In addition, many trans people are forced to pay the cost of a ten-year passport in order to obtain a two-year passport.

(c) Discrimination by state and non-state actors: Lack of recognition legitimises discrimination. Examples of prejudice which transgender persons experience from state actors include inappropriate and degrading questions, refusals to respect expressed gender identity and wilful misunderstanding. A transgender woman told TENI how, while attending a community care clinic, a member of staff had insisted upon loudly and publically calling her by her former male name. The individual recalled how “the room was packed and the laughing and comments were unbearable.” One woman received a phone call from Social Welfare querying her change of name and gender. She explained her transition, and the government agent laughed, said ‘You’ll never be a woman!’ and then hung up. (TENI has heard several similar accounts from people across Ireland.) An Irish transgender woman returning from abroad recalled how her letters to update her Irish bank account and Social Welfare with her change of gender and name were ignored: “The Social Welfare Department sent me a tax certificate in my old male name and informed my new employer of the details.”

(d) Detrimental effect on young people: The failure to issue a new birth certificate may have an especially negative impact on transgender youth. Transgender youth are particularly vulnerable to peer bullying. The perpetuation of young transgender persons’ exclusion through the failure to legally recognise their gender identity reinforces the stress and isolation which Irish transgender youth often feel. TENI has documented the story of a young transgender male who is surrounded by supportive family and friends. However, he is currently required to wear a skirt into school each day because his Principal does not recognise his gender identity.

The refusal to issue new birth certificates also creates significant difficulties for transgender students in applying for university in Ireland. Transgender people regularly miss out on college placements, as the Central Applications Office (CAO), the body responsible for assigning university places in Ireland, is unable to cope with transgender identities. One student transitioned and subsequently decided to re-sit his Leaving Certificate Exam (Ireland’s end-of-secondary-level-education national exam). He gained the required grades for his chosen course of study. The grade the student achieved for English in his first examination results should have been carried over and added to his results the second time he sat the exam. However, the CAO noted the discrepancy in name and gender and assumed an error had been made. In such cases, the CAO office dismisses the application without query. The young man missed out on his college place. TENI has heard of several such cases.

The Government’s Draft Heads of Bill for gender recognition excludes people under the age of 18 from applying for the rights contained within. This is in conflict with the recently passed Children’s Referendum, where the Irish people voted to amend Article 42A of the Constitution to read: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”