Category: human rights

On the Constitutionality of Legislating for Fatal Foetal Abnormality Cases

This week the Dáil debates a Bill put forward by Mick Wallace TD which seeks to amend the Protection of Life During Pregnancy Act 2013 to allow for termination of pregnancy in cases of fatal foetal abnormalities. It is the same document as was proposed by Clare Daly TD, and ultimately rejected by the Dáil, in 2013. Regardless of the performance of the Bill before the Oireachtas, there is obvious need for legal commentary on the fatal foetal abnormalities and the Constitutionality of legislating to allow for abortion in such cases.

Fatal foetal abnormalities, or FFAs, are conditions so detrimental to the growth of a foetus that it will never reach term, or never survive outside of the womb. It is crucial that the distinction is made between FFAs, which are sometimes termed conditions ‘incompatible with life’, and conditions which cause disabilities but do not prevent a baby being born and surviving outside the womb. Much emotive language is used in the debate on this issue, and that distinction becomes lost; this Bill, and this commentary, deals only with cases of FFA. Equally, it is important in all circumstances to challenge the assertion that this Bill requires, recommends, or enforces abortion procedures on persons whose pregnancy has received a diagnosis of FFA. The aim of the Bill is to provide the possibility of a legal choice to terminate for these persons within the Irish jurisdiction.

The Government and some members of the Opposition are currently intending to vote against the Bill due to advice from the Attorney General that it is unconstitutional. This was the reason for the original Bill’s failure in 2013. However, it is not the place of the Attorney General, the Government, or indeed any other party to decide whether a piece of legislation is unconstitutional – that is the exclusive prerogative of the Supreme Court under Article 26 of the Constitution. This commentary provides an overview of the law in the area and backing for the argument that the Bill may in fact be Constitutionally legitimate.

The Protection of Life During Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013 (The Bill/The FFA Bill)

The wording used by the Bill is as follows:

“‘fatal foetal abnormality’ means a medical condition suffered by a foetus such that it
is incompatible with life outside the womb;”

 

and

 

“(1) It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, a pregnancy is ended, where
—
(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that the foetus in question is suffering from a fatal foetal abnormality.”

 

These provisions would be inserted into the Protection of Life During Pregnancy Act 2013.

 

The Current Law

 

Currently, abortion is regulated under two sources of law in Ireland: the Eighth Amendment to the Constitution, and (in a subsidiary manner) the PLDPA 2013.

 

The Eighth Amendment, Art. 40.3.3 of the Constitution, provides that:

 

 “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

 

While the PLDPA 2013 allows for abortion in cases where:

 

– there is risk to the woman’s life from physical illness; this must be certified by two doctors, one of whom must be an obstetrician (PLDPA 2013, s7);
– there is risk to the woman’s life in a critical/emergency situation (PLDPA 2013, s8);
– there is risk to the woman’s life from suicide; this must be certified by three doctors, of which there must be an obstetrician and two psychiatrists, one of whom must be a HSE practitioner (PLDPA 2013 s9).

 

In the case of Attorney General v X, in 1992 (X or the X case), it was held by the Supreme Court that it was constitutionally legitimate to allow an abortion to be carried out in cases where there is a real and substantial risk to the life of the mother. The judgment in X is constitutionally significant both in reasserting the power and duty of the Supreme Court in deciding on the legitimacy of interpretations of the Constitution, and opening the possibility of legislating under Art. 40.3.3.

 

The X judgment draws its principles from the foundational jurisprudence of personal rights under Irish law. Finlay CJ, speaking for the majority, opens his consideration of the interpretation of Art. 40.3.3 by referring to the case of McGee v Attorney General (1974), wherein it is stated that

 

In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable… According to the preamble, the people gave themselves the Constitution to promote the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts. [emphasis added]

He also quotes O’Higgins CJ in The State (Healy) v Donoghue (1976), in saying that:

The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.

There is, therefore, constitutional backing and jurisprudential precedent for the power of the Supreme Court to decide on the legitimacy of interpretation of the Constitution’s provisions, including the personal rights envisioned in Art. 40.3.

With regard to the making of legislation, the opinion of McCarthy J (concurring) in X states that the need visible in the Eighth Amendment for a determination of the level of risk to woman and foetus involves (paragraph 143)

the recognition that the wording of the Amendment contemplates abortion lawfully taking place within this State.

Therefore there exists the possibility of legislating for cases in which an abortion could be permitted under the Eighth Amendment. McCarthy J goes on to state that (paragraphs 146-148)

I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.

In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction. Does the right to bodily integrity, identified in Ryan v. Attorney General [1965] I.R. 294 and adverted to by Walsh J. in S.P.U.C. v. Grogan [1989] I.R. 753 at p. 767, involve the right to control one’s own body?…

Since the Amendment contemplates lawful abortion, how may the State still, as far as practicable, vindicate the right to life of the unborn? Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature. The courts are not equipped to regulate these procedures.
[emphasis added]

Despite this judicial criticism, it would be 21 years before the Oireachtas would finally legislate for X in the PLDPA 2013. An open-ended provision such as the Eighth Amendment instils a duty to legislate in order that the rule of law be open, certain, accessible, and non-arbitrary. It cannot be practicable for every case to go through a full hearing to Supreme Court level in order to ascertain the constitutionality of the actions and circumstances involved therein. Legislation is needed, and the Supreme Court itself recognised this nearly 25 years ago.

The Potential for Legislation for FFA Cases

Having established that there are circumstances in which the “right to life of the unborn” and the “right to life of the [pregnant woman]” can be weighed in such a manner as to legally allow for a termination in this jurisdiction, the question arises as to whether there are other situations wherein a similar determination could be made. It is proposed that a diagnosis of fatal foetal abnormality is such an instance.

In X, McCarthy J states that (paragraph 140)

The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery.

If the unborn has developmental abnormalities to such an extent that it is the opinion of medical experts that it is not viable for survival outside the womb, can it be argued that it does not in fact have an “equal right to life”, as it will in all likelihood never achieve such a life?

In the European Court of Human Rights case of D v Ireland (2006), an Irish woman who was forced to travel to the UK for a termination of her pregnancy following the loss of one of the twins she was carrying, and a diagnosis of fatal foetal abnormality in the other, she was carrying alleged breaches by the Irish government of her ECHR rights under Articles 3, 8, and 10 (the rights to freedom from cruel, inhuman, and degrading treatment; respect for private and family life;, and freedom of expression and information, respectively). In the event, it was found that D had not exhausted domestic remedies, thereby rendering her ECHR challenge inadmissible. However, in their submissions supporting the assertion of non-exhaustion of domestic remedies, the Irish government itself put forward the following argument (paragraph 72):

it was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances. The X case demonstrated the potential for judicial development in this area and, further, the X case did not exclude possible evolution in cases such as the applicant’s: the foetus was viable in the X case whereas in the present case there might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a lethal genetic abnormality. The meaning of “unborn” in Article 40.3.3 had attracted some public and academic comment… However, there had been little judicial examination of the meaning of “unborn” and certainly no case comparable to the present. Accordingly, although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant’s situation in Ireland.
[emphasis added]

This is precisely the argument which could be made for allowing the passage of the FFA Bill. If passed, the Bill would be referred to the President for his signature; if the President finds that there is a potential Constitutional issue with a Bill, he has the power under Article 26 of the Constitution to refer it to the Supreme Court for their examination and approval or otherwise.

If the Government truly believe in the Supreme Court’s role as arbiter of the constitutionality of legislation, they should not allow themselves be blocked from passing a Bill on the basis of legal advice that the law in question might be found to be unconstitutional. The Attorney General, although the Government’s lawyer, does not have the power to determine constitutionality; only to advise. The only way to know if this Bill is legitimate under Article 40.3.3 is to pass it and allow the Supreme Court to examine it – all else is speculation.

–

Notes:
I use ‘woman’ in this commentary when speaking about people who have the capacity to become pregnant; this is not to erase the fact that transgender men and non-binary identifying persons can also, of course, be pregnant.

 

While drafting this post I found this letter to the Irish Times by fellow Lawyers for Choice members and colleagues (including both of my PhD supervisors). This was not only excellent reassurance that I was on the right track, but proof that this argument is not new and that the Government has been under advisory of it for years even as they continue to duck the question of legislating for FFA. To use McCarthy J’s wording, their failure to act is “no longer just unfortunate – it is inexcusable.”

Letter to the Irish Examiner, 30th June 2016

I submitted this to the online letters page of the Irish Examiner this afternoon, in response to an op-ed piece which contained a series of factual and legal inaccuracies. I am not sure if it will be published, yet, but it’s worth archiving here.

 

Dear Editor,

I write in response to Margaret Hickey’s article of 30th June. Ms Hickey makes some claims about the Protection of Life During Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill under debate in the Dáil with which I disagree.

a) Ms. Hickey’s claim that “fatal foetal abnormality” is not a legitimate term is unfounded. It is widely recognised by medical and legal authorities that this definition refers to a foetus which will not reach term, or a baby which will not survive outside the womb. Termination of such pregnancies has been recognised by doctors including Masters of the Holles Street and Rotunda Hospitals, Rhona Mahony and Fergal Malone, as a medical need and the compassionate choice for families undergoing this trauma.

b) Fatal foetal abnormality is not a term interchangeable with disability. It is also illogical and unfounded to relate legislation for abortion to legislation for euthanasia.

c) Ms Hickey states without grounding that the Wallace Bill is unconstitutional. With due respect to her and to the reported legal advice of the Attorney General to Government, the only entity which can make this designation is the Supreme Court. The Irish Supreme Court has never heard proceedings on this ground. Article 40.3.3 speaks of the “right to life of the unborn”; it is for the Supreme Court to decide if a Bill regarding foetuses which will never have life outside of the womb falls within this provision, as the Irish Government itself submitted in the European Court of Human Rights case D v Ireland. It would be legitimate within the wording of the provision for the Supreme Court to consider this Bill Constitutional.

d) Passing the Fatal Foetal Abnormalities Bill would not negate the need for a repeal of the Eighth Amendment. Rather, it would give relief to some families in traumatic circumstances while the country continues to debate a full repeal and the ensuing legislative possibilities.

e) The United Nations Human Rights Committee case of AM v Ireland has recently found that Ireland’s refusal to terminate on the grounds of fatal foetal abnormality breached AM’s human rights to privacy, including bodily integrity; to freedom from cruel, inhuman and degrading treatment; and to freedom from discrimination. Ireland is in breach of its voluntary commitments under international human rights law. It is unconscionable that we allow this situation continue.

Is mise le meas,

Sandra Duffy,

PhD candidate in human rights law, UCC.

Taking a Stand – reproductive rights in conflict with law

This afternoon I was fortunate enough to be in Dublin to attend the third day of Amnesty Ireland’s two-week campaign to repeal the Eighth Amendment. Each day for fourteen days they plan to have a presence on Merrion Street, outside Government Buildings; each day twelve more people will add to their numbers, to represent the twelve people forced, each day, to travel to the UK to access a legal abortion.

The simple force of this this protest is visible in the photos taken each day – three, so far – the numbers swelling and the corresponding pile of baggage getting higher. There is something deeply resonant in the action of placing oneself physically in a particular space to represent someone whose physical agency has been removed from them.

Discussion of physicality and embodiment are central to the work of gender and sexuality law. As much as current – and correct – thought trends toward removing the medical and physically-based definitions of queer identities (and I am using ‘queer’ in the sense of non-normative, challenging), the issue remains that the body is the site of conflict with the law when such conflict arises. The law meets these challenging identities in the regulation of gender identity and expression; the freedom to have sex, marry, form a family; and, in the instant case, the decision to regulate pregnancy status.

Asserting these freedoms brings the individual into contact with the regulatory power of the law, in their very corporeal existence. It is probably not the foremost thought in most people’s minds as they book a ferry ticket and try to think of an excuse for needing two days off work, but the conflict between the individual and the institutions of governmentality is playing out in their physical person as they do so.

Writing on transsexuality, Judith Butler interrogates our use of the phrase ‘doing justice to [someone]’. While her paper centres around gender identity regarding intersex children and non-consensual medical intervention, her critical examination of the space in which law and society allow individuals to exist is worth noting:

This is what Foucault describes as the politics of truth, a politics that pertains to those relations of power that circumscribe in advance what will and will not count as truth, that order the world in certain regular and regulatable ways, and that we come to accept as the given field of knowledge. We can understand the salience of this point when we begin to ask: What counts as a person? What counts as a coherent gender? What qualifies as a citizen? Whose world is legitimated as real? Subjectively, we ask: Who can I become in such a world where the meanings and limits of the subject are set out in advance for me? By what norms am I constrained as I begin to ask what I may become? What happens when I begin to become that for which there is no place in the given regime of truth? This is what Foucault describes as “the desubjugation of the subject in the play of… the politics of truth.”

Another way of putting this is the following: What, given the contemporary order of being, can I be?

When we interfere to the core of people in their most vulnerable moments, we are doing (in)justice unto them. The pregnant person does not get to decide if they wish to buy into the justice system of the state; they are merely the object of its dictats. They do not get to challenge the system in which they live; their survival needs render them extra-legal. Can one ever feel like a legitimate citizen when the regulatory power of the state has reached into the very blood and marrow of them and declared their physical needs non-normative and their mental wishes deviant?

But as noted, this is not the primary concern of the person in crisis, if indeed it is a concern at all. Into this space, then, step pro-choice activists. While it could be said that Irish women and AFAB people are always potential sites of conflict with reproductive rights law, not being currently in crisis offers the opportunity to stand in place of those who are.

Máiréad Enright wrote last year of the position of pro-choice activists in political discourse, using Rancière’s distinction between police and politics. She relates this to the importance of the presence of outsider voices and representation as a challenge to the status quo:

True politics, by contrast, is about upsetting the dominant distribution of the sensible. Politics takes place when in moments of dissent “the part of no part” – those who normally should not be seen or heard – intervene in the established system of meanings, questioning it, and by that questioning insisting on their equality with others as political subjects and members of a broader “we”. For example, at this year’s March for Choice, the comedian Tara Flynn spoke movingly about Ireland’s abortion regime. In a lighter moment, she noted that reproductive rights campaigns were often construed in the public sphere as a ‘women-y fringe-y thing”. But, she said, of the assembled pro-choice marchers, “we are not some women-y fringe-y part of society, we are society”.

We are society. We are political, we are visible, and we are choosing to use our physical autonomy in the defence of those who are denied theirs. Creating this community, this space wherein we act to queer the strictures of the Irish legal system’s understanding of gender roles, resonates far beyond the hour spent at Government Buildings. It is a rebellion, a deliberate step into transgressive territory. When physical oppression is enacted, physical challenge is the only freedom left us. We’re using it.

I’ll be back on Merrion Street next week. Amnesty will be there all this week and next. Twelve people a day, tomorrow and tomorrow and tomorrow. Be their advocate. Sign up here, particularly for the latter days when 100+ people will be required: https://www.amnesty.ie/news/demonstration-outside-government-buildings-show-abortion-cannot-be-ignored-government-formation

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Image from @AmnestyIreland twitter (I am third from left).

Gender Identity at the United Nations

My most recent research project has involved compiling a report on gender identity and gender recognition in the Reports, Comments, and Concluding Observations of the United Nations Treaty Bodies and Special Procedures. The findings have had mixed success: in recent years the UN bodies have been more receptive to matters concerning sexual orientation and gender identity issues; however, explicit reference to gender recognition law or gender identity as distinct from the catch-all title of ‘LGBT persons’ are still uncommon.

My research uses the term ‘gender-variant/variance’ to address all non-cisgender persons, including under this remit transgender, transsexual, non-binary, and intersex persons. In doing so I also hope to avoid the imposition of Western terms on persons from cultures which do not have a direct equivalent of our ‘transgender’. Finally, in some countries – such as India, one of the jurisdictions I will be researching for my thesis – there is no clear boundary between sexual orientation and gender identity as it is widely considered that homosexual acts or desires constitute in themselves a form of gender variance. In a project which seeks to challenge the normative functions of legal gender, avoidance of over-categorisation is important.

In legal scholarship, gender identity is often mentioned in the same breath as sexual orientation, despite presenting some very different challenges to the law of human rights; this report acknowledges instances in which a general ‘gender and sexuality minorities’ category is used, while attempting to draw forward true instances of consideration of gender identity and gender expression issues. Instances in which the institutions acknowledge queer and intersex identities are highlighted as marks of progress in inclusion – however, in many cases they are omitted within the reports and observations emerging from the UN.

As McGill’s history of sexual orientation and gender identity before the UN ([2014] 3 Can. J. Hum. Rts. 1) shows, the first time gender identity was explicitly mentioned in UN proceedings was in 2006, with the Joint Statement on Human Rights Violations based on Sexual Orientation and Gender Identity before the Human Rights Council. The General Assembly followed in 2008 with the adoption by the UN General Assembly of the Statement on Human Rights, Sexual Orientation and Gender Identity. This resolution, while non-binding, marked the first acknowledgement by the General Assembly of the human rights of sexuality- and gender-based minorities.

2008 is also the point of departure for many of the UN institutions in acknowledging gender identity as a factor in discrimination and persecution of minorities and individuals. The adoption of the General Assembly resolution, along with the signing of the (non-UN, but influential) Yogyakarta Principles in 2007, brought both sexual orientation and gender identity to the fore and led to attention from both States Parties and Treaty Bodies/Special Procedures. In the years between 2008 and 2016, the jurisprudence of the Treaty Bodies has seen a continuing upward trend in references to LGBT/SOGI issues. However, transgender and gender-variant persons, as well as intersex persons, are still often sidelined by the institutions, which in many cases tend to consider as analogous homophobic discrimination and SOGI-based discrimination.

The opinions of Treaty Bodies and Special Procedures recorded in my report are not entirely based in legislative proposals – although some are made – but rather, they show the frequency of discrimination and persecution that occurs when transgender persons are marginalised and illegitimised. As an argument for the importance of gender recognition law, therefore, they show the necessity of decriminalising, addressing, and including gender-diverse identities into the scheme of international human rights law.

The Committees which engage the most with gender identity issues are the Human Rights Committee (HRC), the Committee on Economic, Social, and Cultural Rights (CESCR), and the Committee on the Elimination of Discrimination Against Women (CEDAW). These are not surprising findings – where international law meets gender variance, in the main, involves legal recognition (a civil/political right); access to healthcare (a socioeconomic right); and discrimination on the basis of gender. While it is true that almost all gender-variant individuals will encounter discrimination on the basis of their gender identity/expression in some situations, CEDAW concerns itself greatly with the dangers of sexual and other violence suffered by transgender women who are often attacked in situations like enforced confinement in men’s prisons.

General Comment 22 of the CESCR, on the right to sexual and reproductive health and published earlier this month, explicitly recognises the need for recognition of gender-variant persons, stating:

For the purpose of this General Comment, references to LGBTI persons include, in addition to lesbian, gay, bisexual, transgender and intersex persons, other persons who face violations of their rights on the basis of their actual or perceived sexual orientation, gender identity and sex characteristics, including those who may identify with other terms.

This is the most explicit statement of recognition and personhood of all queer and gender-variant identities to be found in the UN’s collective output on the subject so far. The addition of intersex to the protected designation ‘LGBT’ shows a willingness to promote the welfare of those with non-standard sexual characteristics, who may identify within the binary or otherwise. It is to be hoped that the UN will continue to include a broader range of physical and personal identities in their statements, and in contexts other than healthcare. While it is undeniable that healthcare is an area which disproportionately engages gender-variant persons, addressing these persons mainly through the lens of healthcare does continue to associate gender variance with pathologisation. A statement on the civil/political right of such persons to legal gender recognition would be welcome.

The countries most targeted for recommendations by the UN Committees are the Russian Federation, Ukraine, and Kyrgyzstan, all of which operate restrictive laws around freedom of expression and assembly of queer and gender-variant persons (“propaganda laws”). The Committees find it concerning that these laws, ostensibly for the protection of children from immoral factors, are used instead to stigmatise and criminalise queer and gender-variant persons who attempt to speak or associate freely. Ukraine also comes under heavy criticism (CCPR/C/UKR/CO/7, paragraph 10) for its treatment of persons seeking medical help in gender transition as psychiatric patients with a compulsory confinement to a psychiatric hospital for up to 45 days, as well as mandatory surgery. The Committees also remark on the criminalisation of transgender identities in the Gulf states such as Iran and Kuwait.

With regard to the Special Procedures, the Rapporteurs who concern themselves most with gender and sexuality-based minorities are the Special Rapporteurs on Health, on Human Rights Defenders, on Violence Against Women, and on Extrajudicial, Arbitrary, or Summary Executions. The latter two are the unfortunate consequence of the violence suffered by many gender-variant persons, particularly transgender women or female-presenting persons – in particular in Guatemala, Mexico, and Turkey.

The Special Rapporteur on Human Rights Defenders has been a consistent voice against the adversity experienced by defenders working with gender- and sexuality-based minorities since 2002 (E/CN.4/2002/106/Add.2 – the earliest statement on ‘LGBT’ persons I located in the UN reports). The mandate’s reports have been consistent in addressing ‘sexual orientation and gender identity’ or ‘LGBTI’ issues in the intervening years. This attention illustrates the difficulties of working for causes such as gender recognition, which face cultural barriers in many parts of the world.

The Special Rapporteur on Health has, unsurprisingly, been one of the main promoters of the rights of gender- and sexuality-based minorities, beginning in 2004 (E/CN.4/2004/49) with a statement on discrimination against “many people with lesbian, gay, bisexual and transgender identities or conduct” – quite a progressive statement, including gender expression (“conduct”) as well as identity. The mandate has also stated its opposition to medical intervention on children born intersex, on the basis of bodily autonomy. Its statement regarding intersex persons in childhood development (A/70/213) also included recognition that

Deeply rooted stereotypes around gender dichotomy and medical norms about male and female bodies have led to the establishment of a medical practice of routine interventions and surgeries on intersex people, including irreversible genital surgery and sterilization.

This strong statement on bodily autonomy and sex characteristics shows a willingness to engage with the most sidelined minorities in this area, and is a promising development for UN output and practice.

While much of the UN’s engagement with gender identity issues is not strictly based on the kind of legal recognition which is the basis of my research thesis, the knowledge base gained from seeing how international human rights institutions engage with gender-variant identities and expressions allows for a better understanding of the norms, cultural and regulatory, involved in human rights law in this area. As my research involves consideration of how domestic legal systems tackle issues around gender recognition, it necessarily requires a basis in the dominant discourse of international human rights law. I will continue to survey these institutions in the next stage of my research, exploring gender identity and recognition before the regional human rights systems (in particular, the European and Inter-American Courts of Human Rights).

Indian Supreme Court agrees to revisit Koushal v Naz Foundation

Much notice has been taken of the February 2nd decision of the Indian Supreme Court to allow an appeal of the 2013 case of Koushal v Naz Foundation, which upheld s.377 of the Indian Penal Code retaining a de facto criminality of sex acts between men.

 

Section 377 dates from the laws enacted by British colonial powers in India. Its wording prohibits “carnal intercourse against the order of nature”, punishable by fines and up to life in prison. While at no point does the provision specify by whom, or with whom, these acts need to be committed in order to fall under its remit, it has been used to target India’s LGBTQ+ community. Perhaps most damagingly, the fear of criminalisation has hampered efforts to combat the AIDS epidemic among the community of non-heterosexual men in India’s cities.

 

Indian society does not uphold the strict boundary lines between sexual orientation and gender identity that are seen in Western countries. All non-heterosexual, non-cisgender persons are considered to fall within the broad category of ‘third gender’; therefore section 377 hangs over a community broader than what we would consider purely homosexual men. It also criminalises sex acts by and with the hijras, the community of designated-male-at-birth individuals who identify as female or as non-binary/third-sex, as well as continuing the stigma around kothis, the ‘passive’ partners in male homosexual relationships, who are considered neither as women nor as normal men (under the rigid normative gender binary imposed by society). Therefore, section 377 can be seen to be exert a regulatory function over all gender- and sexuality-based minorities who already occupy a marginalised position in Indian society. As may often happen, the existence of the law – as opposed to any particular imposition of its penalties – forms a tool of marginalisation and Othering, as well as a potential ruination of privacy and liberty. This is a situation with which Irish readers will be familiar, as it very much resembles the arguments against the criminalisation of homosexuality in the landmark case of Norris v Ireland.

 

Section 377 has found itself before the Indian Courts previously; in 2009 it was the subject of a challenge in the case of Naz Foundation v Governor of NCT of Delhi. Naz is an activist group working with queer and trans persons, primarily on the issues of sexual health and the fight against HIV/AIDS. Their challenge contended that criminalising consensual sex acts between adults is a breach of the fundamental rights to privacy and dignity guaranteed by the Indian Constitution. First filed in 2001, Naz’ case was dismissed by the High Court on the grounds of lacking locus standi. That decision was appealed to the Indian Supreme Court, which took the position that Naz could legitimately take a public interest litigation on the subject, and remitted the case back to the High Court for a hearing. Much to the surprise – and delight – of many observers, the Court upheld Naz’ challenge, deeming the application of s.377 to private, consensual sex between adults to be unconstitutional. The Court drew a deeply principled line in the stand, stating that dignity, privacy, and inclusiveness were values imprinted on the Indian legal system from its Constitution: in particular Articles 14 (right to equality); 15 (right to non-discrimination), and 21 (right to protection of personal liberty). It also made reference to a number of international human rights instruments, including the ECHR and ICESCR, showing the influence that international norms were beginning to have on a domestic system still implementing archaic laws from the 1860s.

 

Despite this victory, s.377 remained on the statute books for use in cases of child abuse and sexual assault. Its retained presence here enabled the complainant in the 2013 case of Koushal v Naz Foundation to challenge for the reinstatement of its use with regard to same-sex acts. The Supreme Court agreed with this reinstatement, holding in the deeply flawed Koushal judgment that the High Court did not have authority to make such a pronouncement, as to do so would infringe on the right of Parliament to make law in accordance with the separation of powers.

 

The Supreme Court in Koushal held that, although the High Court did have the right to rule on the constitutionality of the provision, the presumption of constitutionality placed upon any law in the statute books meant that there would have to be a clear and provable breach of the Constitution found in order to strike the law down. In the case of s.377, they held, there was not.

 

Koushal is a decision in which it is plainly visible that the Court is using technical points of law in order to gloss over the fantastical gaps in their reasoning. S.377, they believed, did not criminalise any particular gender or orientation; the wording is gender-neutral and refers only to acts, not persons. Quite where the dedication to Constitutional principles of privacy lay in that particular holding, it is not clear. They then went further, outlining their conviction that there exist two classes of people in Indian society: those who commit sex acts “against the order of nature” and those who not. The fact that the former could be grouped as a ‘class’ means that s.377 is not arbitrary or discriminatory, as it treats everyone whose behaviour it criminalises equally – and in fact, fewer than two hundred people had ever been prosecuted on its basis, therefore its application to this small minority ‘class’ could not override the constitutionality of a law. Finally, it stated that the discrimination and stigma faced by the Naz Foundation and its clients to be irrelevant in the eyes of the Court, as it could not be held to be the result of any legal factor. The Supreme Court held that, if s.377 was to be declared unconstitutional for any reason, it must be up to the legislature to do so.

 

It is difficult, reading Koushal, to understand either where the learned Court sourced their reasoning or how they felt it would ever stand up to future legal or judicial scrutiny. The judgment shows a lack of analysis, a knee-jerk reaction to the spectre of legalised homosexuality, and a complete lack of attention to the values of the Constitution they are claiming to uphold. Whether one agrees with Naz or not, it is a legally coherent and well-reasoned judgment which takes in domestic and international sources of law as well as displaying careful analysis of Indian values and society. Koushal, on the other hand, feels rushed, badly reasoned, and founded upon deeply discriminatory thinking unworthy of the highest Court in the land.

 

It will be very interesting to watch how the new challenge on s.377 will unfold. The years between Koushal and the present have seen the judgment in NALSA v Union of India uphold the rights of transgender individuals, including granting the right to identify as third gender on identity documents. It is to be hoped that NALSA shows a willingness on the part of the Courts to uphold the personal rights to dignity, privacy, and freedom of expression of all Indian citizens. Certainly, the challenge to Koushal allows them the opportunity to make good the wrongs of that particular decision, and to allow India cast off one more of the trappings of its harsh legal past.

Reflections on the UK Trans Equality Report

The UK House of Commons Trans Equality Report 2016, was published today, January 14th, and contains several dozen recommendations for policy shifts and improvements in the UK’s treatment of its gender-variant citizens. Unlike Ireland, which started with the possibly dubious advantage of a clean slate in drafting its Gender Recognition Act last year, the UK has had a GRA in place since 2004. The Report recognises that this was, at the time, ‘world-leading’; it was implemented in good time following the decision of the ECtHR in Goodwin v UK (2002). However, the UK GRA 2004 has not aged well, and some of its provisions – although they may have been progressive at the time – now seem woefully lacking by best practice standards.

The Report has several interesting concentrations, among them the lack of recognition of non-binary individuals. A minority within a minority, persons who choose to identify as genderqueer, agender, or other identities operating outside of the male/female binary have been neglected in law even in comparison to binary-identified trans persons. By contrast to countries such as India, Pakistan, Nepal, and Bangladesh, neither the UK nor Ireland have a visible and vocal non-binary community (in the aforementioned jurisdictions, the phrase ‘third gender’ is often used as a catch-all which includes non-binary identities). However, there are similar, Westernised jurisdictions which recognise the right to identify as non-binary – Australia, since the case of NSW Registrar of Births, Deaths and Marriages v Norrie in 2014; Malta, with its Gender Identity, Gender Expression, and Sexual Characteristics Act 2015, to name two. The Report states that “[i]f Australia is able to implement such a policy, there is no reason why the UK cannot do the same,” a statement with which it is difficult to argue – and which could apply equally to Ireland.

Despite our progressive self-declaration legislation, Irish people may still only identify as either male or female. There is no facility for registering one’s identity outside of those options, which limits the freedom of gender-variant individuals to self-declare. The Yogyakarta Principles understand “gender identity” to mean “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms”, which clearly allows for a spectrum of gender identities. Equally, Malta’s GIGESCA 2015 allows for recognition of intersex as an identity, and removes any requirement for medical procedures before a child’s sex can be registered. There are few convincing arguments as to why this is not a workable option for other jurisdictions. Concerns over the function of registries and the possibility of “confusion” if more than two options were offered is dispensed with in a clear and logical fashion in the Norrie judgment. If we are to allow for rights for transgender individuals, it would seem contrary to the spirit of such legislation for those rights only to be extended to persons falling within socially comfortable categories. It is social conservatism which holds us back on these matters, there is no doubt; it is worth remembering that we are the ones who build the registry systems, and we are not stuck forever in their thrall in some manner of Kafkaesque bureaucratic labyrinth. So, I repeat: if Australia can do it, why can’t we?

The Report spends much time on the interactions between trans* persons and the medical system, and it is clear to see the dichotomy faced by practitioners in this area. While the journey toward best practice in trans* law is also by necessity a move toward depathologisation of what is a normal, if somewhat rare, element of the human condition, the fact that trans* individuals often require or wish for medical intervention is also an indisputable fact. The UK GRA 2004 places heavy emphasis on a medicalised model of being transgender, requiring testimony from a psychologist and a doctor that the applicant suffers from gender dysphoria and either has, or is to have, gender “reassignment” medical intervention. As not all trans*-identified persons wish to alter their physical presentation medically, this requirement is another barrier to gaining recognition rights for some sections of the community. In Ireland, the original draft of the Gender Recognition Bill included some medicalised requirements, but as the Bill made its way through the legislature, the effects of sterling campaigning by trans* lobby groups informed the lawmakers that such provisions would form an obstacle to uptake, and they were dropped.

The Report recommends that the NHS in the UK remove trans* health services from the realm of mental health, and instead consider them to be part of another branch of medicine (endocrinology is suggested as an option). This would be in line with the World Professional Association for Transgender Health’s Standards of Care, which distinguish gender-nonconformity (a state of being) from gender dysphoria (a physical and mental discomfort with the incongruity between one’s gender identity and physical presentation). The WPATH also recommends a model including both informed consent and ongoing medical monitoring for individuals undergoing major medical interventions, a recommendation which the Report endorses. While I cannot share the Report’s concern for resources with doctors “simply granting on demand whatever treatment patients request” – sounds a lot like more gatekeeping to me – I do agree that for clinical ethical standards there does need to be ongoing care when it comes to major medical decisions. It is a difficult line to walk between acknowledging the necessity of medical interventions and not simply reducing trans* persons to their physicality. It will be interesting to see how the UK government choose to address this question if they follow the Report’s recommendations.