Although the Irish Gender Recognition Act 2015 was signed into law in 2015, it was by no means a new idea by then. With the Lydia Foy judgments in 2002 and 2007, commitments in Programmes for Government starting in 2009, and parliamentary processes including public consultations stretching over four years, the GRA was a lengthy and highly debated process which would eventually leave Ireland with an internationally renowned, human rights-compliant legislation.
There has been a myth circulating of late that the Gender Recognition Act was ‘snuck in’ or somehow secretly passed without the proper legislative scrutiny. The background to this is a mistaken belief that the Act was brought in on the back of marriage equality in May 2015 and therefore was not given adequate time for debate. This is entirely false.
The fight for legal gender recognition in Ireland began with Dr Lydia Foy’s first challenge to the Irish High Court. Dr Foy had been attempting to change her birth certificate registration from male to female without success, as Irish administrative law did not allow for that at the time. Her case was decided in 2002, and she was unsuccessful (Foy 1; 1). The judgment in the case is certainly ‘of its time’ – highly pathologised and following the precedent of the judgments of the European Court of Human Rights to date. However, it is notably sympathetic to the transgender community and ends with a call to the Oireachtas to “fully debate what changes, if any, are required.”
Two changes then took place which allowed for the second Foy case to be brought. The European Court of Human Rights handed down its judgment in Goodwin v UK, (2) which held that legal gender recognition was a human right protected by the European Convention on Human Rights; and Ireland implemented the European Convention on Human Rights Act, which required Irish law to be interpreted in compliance with our obligations under the Convention. What this meant was that the Goodwin decision could now be applied by an Irish Court.
Dr Foy, who had appealed to the Supreme Court following her 2002 loss, now found her case handed back to the High Court for another hearing. This was decided in 2007 (3), and, applying Goodwin, Judge McKechnie found in her favour. Irish people should be allowed to access legal gender recognition. He was strongly critical of the Irish Government’s inaction on the subject and issued a Declaration of Incompatibility. This meant that the Government was issued notice that they were not in compliance with their obligations to the European Convention on Human Rights, and that they should update their laws to be in compliance.
At the same time, a grassroots movement was starting to build around transgender people in Ireland. The Transgender Equality Network Ireland (TENI) was founded in 2006 and helped to bring the community into national discourse. Meanwhile, the Free Legal Advice Centres (FLAC), who had provided Dr Foy with legal representation, had been building a coalition of NGOs at home and abroad, who were interested in the question.
On the international stage, Ireland was also being criticised by human rights institutions for its failure to act on gender recognition. The Council of Europe Commissioner for Human Rights (4), the United Nations Human Rights Committee (5), and the EU Fundamental Rights Agency (6), all rebuked the Government in 2008. Something had to be done.
In 2009, the Fianna Fáil-Green Party Government included “legal recognition of the acquired gender of transsexuals” in their Renewed Programme for Government publication (7). Following consultation with FLAC and TENI, they also withdrew their appeal against the Foy 2 decision. The FF/GP Government also established a Working Group to consider drafting legislation for gender recognition. The Report of the Working Group was published in 2011 (8), by which time a new Fine Gael-Labour Government had been formed, which claimed that gender recognition was among its legislative priorities (9).
The Report of the Gender Recognition Advisory Group contained some provisions which are in today’s Act, but several others garnered strong criticism from human rights campaigners. Among them were medical requirements for transition, and a ‘forced divorce’ clause – because at the time, partners of the same legal gender could not be married in Ireland. The Government promised to develop a Heads of Bill (a scheme for a piece of legislation) after the Report was issued, but the process stalled.
Finally, in 2013, Dr Foy issued new proceedings to enforce her 2007 judgment, which spurred both Government and Opposition Oireachtas members to act. Two Private Member’s Bills were issued, by Aengus Ó Snodaigh TD (10) and Senator Katherine Zappone. Both Bills were based on a self-declaration model with no medical criteria for gender recognition. By contrast, the draft Heads of Bill published by the Government in July 2013 were more restrictive, and required a “supporting statement” from an applicant’s physician (11).
After the Heads of Bill were published, the Joint Oireachtas Committee on Education and Social Protection held hearings on them with input from “key individuals and groups.” (12) These included LGBTQ+ organisations such as TENI, TransparenCI, BeLonGTo, and LGBT Noise. The Committee issued a report on the Bill in 2014 (13), recommending that the provision on “evidence of transition” be “reconsidered.” It is notable that at this point, the acceptance of the self-declaration model was not just confined to trans activists and advocates – it was the strong recommendation of an Oireachtas Committee and backed by TDs from both Government and Opposition parties. However, the Revised Scheme of the Gender Recognition Bill, introduced in 2014, still required adults to obtain a statement from their primary treating physician.
Professor Michael O’Flaherty also wrote an editorial piece in the Irish Times while the Bill was before the Oireachtas, which was cited as influential by several legislators. He observed that the medical requirements of the Bill, among other features, were contrary to international human rights law (14).
This revised Bill was introduced in the Seanad in January 2015 and went to the Dáil for second-stage debate. Interestingly, some TDs linked the struggle for transgender rights to the founding aspirations of the nation. Patrick O’Donovan TD cited “the 1916 Rising, where the aspiration was to cherish all the children of the nation equally.” John Lyons TD referred to Elizabeth O’Farrell, who was “airbrushed out of the picture depicting the moment of surrender” following the Rising, adding that “I know, TENI knows, and transgender people know what it is to live in the shadows of society and not be recognised as the people we are… For the first time those who have been airbrushed out of society because they are transgender will be… recognised.” (15)
The Bill was referred back to the Dáil Select Subcommitee on Social Protection for the its Committee stage, and it was at this point that Minister for State Kevin Humphreys stated that the Government was tabling an amendment which would remove any requirement to provide a letter of validation from a medical practitioner for a person aged over 18 years (16). The Bill passed the Dáil with no further substantive amendments and returned to the Seanad to be finalised. It was passed into law in August 2015.
A few remarks on these debates and the process of passing the Bill: firstly, lawmakers were exceedingly willing to listen to LGBT people, particularly trans people, and their advocates. Secondly, the debates displayed almost no animosity toward the Bill. Rather, most of the disagreements that arose came about because the parliamentarians felt it was not progressive enough!
Lastly, it was notable that the passage of this Act was presented as a matter of pride for the Irish State; that Ireland would be a world leader in the protection of trans peoples’ rights in frequently noted during the legislative process. The citations of the 1916 Rebellion and the Proclamation of the Republic, in particular, as well as the noted rejection of the UK’s Gender Recognition Act 2004 as a template during the debates, align trans rights with the ideals of the founders of the Irish State. In a way, this is one of the most revolutionary aspects of the legislation’s progress – Irish politicians asserting Irish values to expand our conception of gender identities and establish trans rights in this country.
Dr Sandra Duffy holds a PhD in international human rights law, focusing on gender identities and gender recognition law. She is co-author of the ILGA Trans Legal Mapping Report, which catalogues global gender recognition laws.
(1): Foy v an t-Ard Chláraitheoir 1 [2002] IEHC 116
(2) Goodwin and I v United Kingdom [2002] Application no. 28957/95
(3) Foy v an t-Ard Chláraitheoir 2 [2007] IEHC 470
(4) Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, on his Visit to Ireland, 26-30 November 2007, CommDH(2008)9.
(5) CCPR/C/IRL/CO/3
(6) EU Fundamental Rights Agency, “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1 – Legal Situation,” 2008.
(7) Department of An Taoiseach, Fianna Fáil and Green Pary, Proposed Renewed Programme for Government, October 2009.
(8) Gender Recognition Advisory Group Report to Joan Burton TD, Minister for Social Protection, 15th June 2011.
(9) Department of An Taoiseach, Fine Gael and Labour, Government for National Recovery 2011-2016, 5th March 2011.
(10) Gender Recognition Bill 2013, no 56 of 2013.
(11) General Scheme of Gender Recognition Bill 2013.
(12) Joint Oireachtas Committee on Education and Social Protection, General Scheme of Gender Recognition Bill 2013: Discussion, 23rd and 24th October 2013
(13) Joint Oireachtas Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill 2013, January 2014.
(14) Professor Michael O’Flaherty, “Gender Recognition Bill is in violation of international human rights law,” The Irish Times, 10th February 2015.
(15) Dáil debates, Gender Recognition Bill 2014 [Seanad] Second Stage (Resumed), 5th March 2015.
(16) Dáil Éireann, Committee on Education and Social Protection: Select Subcommittee on Social Protection, Gender Recognition Bill 2014: Committee Stage, 17th June 2015.
Sandra Duffy 