My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Wednesday, July 20, 2011
She, He or It
After the High Court ruling in Dr Foy’s favour and the withdrawal of the appeal, the Government appointed a committee entitled the Gender Recognition Advisory Group (GRAG) in 2010 to enquire into, advice and report to them on this matter so that they could draft appropriate legislation. The makeup of GRAG was the subject of some criticism at the time and continues to be, in that no member of the transgender community was, officially at any rate, on the committee and the committee was made up of civil servants. The terms of reference of the committee were also somewhat limited in that it did not allow for any investigation into the situation of intersex persons. In any event, GRAG has recently filed its report.
The report proposes establishing a scheme to enable a person whose birth is registered in Ireland, who is 18, who has a clear and settled intention to live in a preferred gender permanently and has so lived for at least two years, to apply to have their birth certificate altered to reflect their acquired gender. This individual will also need to supply evidence of a diagnosis of gender identification disorder or evidence of having undergone gender reassignment surgery or evidence of legal recognition of their preferred gender identification by another jurisdiction. Furthermore, persons with an existing valid marriage or civil partnership are excluded from the scheme. Interestingly, this report is coming under much criticism from the Transgender Community and most particularly the Transgender Equality Network of Ireland (TENI) who were unrepresented on GRAG. Their criticisms are levelled most strongly at the provision that married persons and/or registered civil partners must divorce or dissolve their union before applying. Those who defend the recommendations argue that not to have this restriction would raise clear constitutional issues and equally those who criticise this recommendation argue that it raises clear constitutional questions. Clearly, we are headed for a constitutional challenge whichever way the legislation is drafted. Those arguing against the recommendation say that too effectively mandate that a couple divorce, prior to granting recognition, is a direct interference with the special constitutional position of the family based on marriage. Those arguing in favour of the recommendation say that if there wasn’t a restriction against married couples applying, the legislation would have the potential effect of introducing same sex marriage and would be open to a constitutional challenge. Of the two positions, both of which undoubtedly give rise to legal complications, I would take my chances on those arguing against the recommendation mainly because I see nothing wrong with same sex marriage and would rather open the debate that way. So why are civil partnerships required to dissolve? The justification offered was that the effect of no restriction would be to allow opposite sex civil partners to come into being in circumstances where the civil partnership relationship does not benefit from the full protection afforded to marriage! To put it mildly, I am perplexed by this one! If we have a problem with civil partnerships that do not have the full legal protection afforded to marriage then don’t make a distinction and simply allow same sex marriage. They also in fairness go on to say that if marriages only were mandated by the proposed legislation and civil partnerships were not, there would be constitutional challenge. Essentially, if we are going to be unfair to one lot then we have to be unfair to the other lot as well – equality of unfairness!! Yet GRAG states that it should be a guiding principle of the Scheme that the terms and conditions of the scheme to be set up would not deter potential applicants. Certainly this is a worthy sentiment but for those transgendered persons who are in civil partnerships or married, the proposed restriction is a potentially very strong deterrent. How is a person supposed to choose between their identity and their family? There are many couples who have married or entered into civil partnerships fully aware of transgender issues for one of the partners and who will not wish to separate or divorce. In addition, TENI criticises the requirement for a medical diagnosis or gender reassignment surgery in order to qualify to apply. This seems to be a choice between mental health treatment or surgery? Do we have the experts here to make this type of diagnosis? Many countries in Europe have had legislation on these matters since the late 70s and early 80s and now genuinely have the benefit of hindsight. Many of them are moving away from the requirements to have undergone surgery or some other form of medical intervention prior to recognition. It is worth noting that EU member states that have most recently updated their legislation have dispensed with these requirements. It would be good if Ireland would not only legislate on this long overdue matter but would also learn from the experience of others who have been here before us but it seems a tad unlikely.
Intersex persons are excluded from the recommendations in GRAG as the terms of reference of the committee did not allow for them to investigate in this area. Intersex is a term applying to a person born between sexes having partially or fully developed pairs of female and male sex organs. Intersex is not a sexual preference or an option. It is a physical or gender issue. However, most intersexed people do not consider themselves to be both sexes and tend to identify with one or other for various and complicated reasons. The issues surrounding intersex, not least the issue of sexual assignment surgery in infancy, the variations possible in chromosomes and how these variations should be regarded, are hotly debated and very controversial. They are worthy in and of themselves to separate consideration. It is vital that we try and include intersex persons in any proposed legislation. At present, intersex applicants are excluded from applying the UK as the definition of gender identification disorder specifically excludes them. To their credit, GRAG has flagged this issue and has recommended the need for proper consideration, research and medical expertise into the area of intersex.
(The use of gender specific language to write about intersex persons and transgender is often challenging and if I have unintentionally offended, I apologise.)