Gender Recognition – Public Consultation

On foot of a High Court ruling that Ireland is in breach of the European Convention on Human Rights in not having a process to legally recognise the acquired gender of transsexual persons, the Government has decided to introduce legislation to comply with the judgement.

To progress this decision, the Minister for Social Protection has established an interdepartmental group – the Gender Recognition Advisory Group - with the following terms of reference:

To advise the Minister for Social Protection on the legislation required to provide for legal recognition of the acquired gender of transsexuals. In particular to propose the heads of a bill to provide for:—

the establishment of a process for legal recognition of the acquired gender of transsexual persons who have made the transition from one gender to another;
the establishment of a gender recognition register;
the granting of entitlement to marry in the legally recognised reassigned gender; and
any other provisions as may be deemed necessary consequent on the main provisions of the Bill.

To help progress its work, the Group hereby invites comments and proposals on relevant issues from interested parties, and the general public.

Proposals and comments should be submitted by e-mail to the secretary of the Group at: grag@welfare.ie - not later than Friday September 17^th 2010.

The Group may invite individuals or representatives of groups to make presentations at a later stage.

Basic Scope of Proposed legislation

The basic scope of the legislation is to authorise the Minister to set up and operate a scheme whereby the State recognises the changed gender of transsexual persons.

Recognition of the changed gender of an individual will be signified by a formal statement that the person's new gender is henceforth to be regarded as their gender for all purposes.

Outline of Process

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

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.
The applicant submits evidence in support of the application.
The Minister, or the decision making body, examines the application and the evidence and makes a decision to either accept or reject the application.
The Minister or the decision making body, issues a formal statement to the successful applicant recognising the new gender.
There will be an appeal process for unsuccessful applicants.

The Group invites submissions on the proposed process.

Principles

The Group proposes certain guiding principles to inform the design of the decision making process and the setting of the qualification criteria:

The process should fully respect the rights and dignity of the applicant.
The terms and conditions of the scheme should not deter potential applicants from applying.
The criteria should be capable of being interpreted in a consistent and objective manner.
The process and the criteria should be such as to command the respect and trust of the applicants and the wider community in terms of its integrity and fairness .
The process should be completed in a timely manner.
Respect for privacy and confidentiality is a key requirement.

The Group invites submissions on these draft principles.

Qualification Criteria

The qualifying criteria for the scheme to include the following:

Minimum Age

The Group proposes that applications should only be accepted from persons aged 18 years or older.

Irish Residents

The Group proposes that applications should only be accepted from:

Persons ordinarily resident in Ireland; or
Persons whose births are registered in Ireland.

Other

Submissions are invited on other possible qualifying criteria, for example:

Should persons in an existing marriage or civil partnership be excluded?

Submissions are invited on these points.

Acceptance Criteria

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

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;

Gender Recognition Certificate and Recording of Data

The Group proposes the following procedures relating to the process following the recognition decision:

The Minister or the decision making body will issue a gender recognition certificate to the successful applicant.
Recognition of the new gender of an individual will apply from the date of issue of the gender recognition certificate. All rights, responsibilities and consequences of actions by the person in their original gender role prior to the date of recognition would remain unaffected.
The issue of each new gender recognition certificate will be notified to the Registrar General of the GRO.
The question as to notification of other official bodies remains to be considered.
The General Register Office (GRO) will be required to keep a confidential register of all persons whose acquired gender is recognised.
In the case of persons whose birth is already registered with the GRO, the successful applicant would be entitled, on application, to a new birth certificate with the new gender and new names indicated.
This certificate would be indistinguishable in format from the standard birth certificate.
The creation of a birth entry in a register maintained for the purposes of gender recognition will not affect the original entry in the register of births.
Issue of a new birth certificate showing the new gender role will not extinguish the original birth certificate. Both will continue to be available for use and be legally valid.

The Group invites submissions on these proposals.